The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-02-08
Hunter and an unfortunate mlsprlnt
the opinion of Chief Justice Eyre.

Hunter and an unfortunate misprint
the opinion Of Chief Justice Eyre.
Judge Moncure, In the Virginia cast
above referred to, approves this definition
OF, u demurrer to tile evidences; 'rht
settled practice in virginia, on denurrcri
to evidence, s that the demurrer slial
set out tho whole evidence, and that tn,
court may compel the other party to joir
IN the demurrer, without requiring thu
demurrant to make formal admission
on the record Of I'll tic issues OF fact
which the court may think fairly de-
ducible from the evidence dcmurrcd to-
ana he further says that "by .demurrnp
TO the evidence the demurrant 'wnives nlI
evidence on his part that conflicts with
that OF the other party, admits the crcdi
or the evidence defnurred to, admits al
lnferences OF fact thnt may be fairly
deduced from the evidence, hut only such
facts as are fairly deduclble,, and refers
1t to the court to deduce the fair infer
ences from the evidence" ga Graft.
p. 6S7.)
Demurrers to the evidence may first
be noted In the reports OF the year 1876
gear Book 81, Henry VI. p. IS, u.
Ihey were destroyed in England by
the decision OF the court in Gibson vs.
Hunter q FL. Blackstone, 1870. This case
was tried before Lord Kenyon In 175i,
and was affirmed in the House of Lords
IN 1888 Since that time there has been
no reported case of demurrer to evil
dence in England. Lord Blackburn, COM
sments on this fact In Sewel vs. Burdlck
. 10 Appeal Cases, "A, 90 decided in the
year 1881.
Prof james Bradley Thayer, the ablcst
writer on evidence who has perhaps ever
lived. in his preliminary Treatise on
Evidence says THE decision In Glib
son VS.. Hunter. so far as the advisory
opinion of the judges may be thought to
give the TRUE reasons for 1t (for this is
all we have to go by) had this effect,
namely, 1t compelled the parties to reach
an Gxreement and specification ms to
what was thus admitted by the denlur-
rer,s before the case came to the court
:, bane. The rule now laid down had
the effect to adjust below. before the
single judge, all debate over this ques-
ton: the demurring party was required
to say. at that stage, exactly what he
was admitting: the single Judge might
compel joinder in demurrer when
proper admissions were made. and might
compel the making of proper admissions
by allowing refusal to Join. And thus
1T was made sure that when the upper
court received the case 1t came to them
purged of mere questions Of general red
sonlng, with all the differences of fact
stated" Opp. 235. 236.)
The party who demurs. under the pres
ent system. does so in the vague ex-
pectation of getting something out of n
court in the consideration OF his evil
dence which he might not get from a
jury.
The object of the pending bill is TO
make him state specifically In writing
exactly what he does admit, so that the
case VIII turn on the same point in the
lower court as in the. appellate court,
and to confine the demurrant to strict
question of law. This ancient instru-
ment OF Injustice fell wholly into disuse
in England in consequence of the de-
cision OF GIBSON rs. Hunter. In Trout
vs.. r. r. Co. % Graft, 6i9, 635-64o. the
Supreme Court of Appeals OF yirginia
failed to understand. as Judges Story and
Marshall had done In 1did and 1896, that
the decision of Gibson vs. Hunter was a
novelty. and that the demurrer In Eng
land had not survived the shock. They
probably erred because Of a misprint in
Gibson vs.. Hunter where the opinion
reads. IF the party who demurs will
admit the evidence of the fact. the evi-
dence of which fact is loose and indeter
inmate etc. Professor Thayer says that
III place of the word evidence we
should read existence" IL f. certain
that the English courts so understood
the decision. as we'll as all of the lead
Ing American courts, except Eirginia's
The purpose OF the Senate bill is ia
correct this wrong and put into the form
of a statute. the decision in GIBSON VS.
Hunter. Should IT. become a law. ii will
greatly tend to lessen delays and the ex-
penses of litigation. as we'll as the con-
fusion and uncertainty in cases where it
is resorted to at present. The demurrer,
as 1t exists to-day. is n great instru-
ment of injustice, and relief can only
come from the Legislature
Respectfully.
S. S. =. PATTERSON.
Richmond. Va. Feb. Z. 1906