But it is not conceived that a party by pleading affirmatively what only amounts to the negative of the issue can acquire this right. The plea filed by the plaintiff in error is in reality nothing more than the general issue of non detinet, and would on that account have been bad on demurrer." It did not release the plaintiff below from proving title to the slave, nor was the burden on the defendant thereby increased. Judgment affirmed.80 SECTION 5. DEMURRER TO EVIDENCE. COPELAND v. NEW ENGLAND INSURANCE CO. 39 Mass. 135. MORTON, J., delivered the opinion of the court.81 This is assumpsit on a policy of insurance on the brig Adams. It is alleged that the brig was totally lost upon a coral reef near the Isle of Pines on the coast of Cuba. The admissions of the parties reduced the case to the simple question whether the loss was caused by any of the perils insured against. To prove the affirmative the plaintiffs introduced the testimony of four witnesses, and here submitted their case. The defendants believing this evidence to be insufficient to support the action demurred to it. The plaintiff joined in the demurrer; and the case has been argued upon the evidence thus brought before us. This mode of trial is very unusual in this state. No case of the kind has happened since the commencement of our reports; and "Richards v. Frankum, 6 M. & W. 110 (1840). 50 Averments affirmative in form but negative in substance do not shift the burden of proof or give to the party making them the right to open and close. Smith v. Davies, 7 Car. & P. 307 (1836); Crowley v. Page, 7 Car. & P. 789 (1837); Chambers v. Hunt, 18 N. J. L. 339 (1841); Haines v. Kent, II Ind. 126 (1858); Beatty v. Hatcher, 13 Ohio St. 115 (1861); Shulse v. McWilliams, 104 Ind. 512, 3 N. E. 243 (1885); Georgia R. R. v. Williams, 74 Ga. 723 (1885); Florence Oil &c. Co. v. Farrar, 109 Fed. 254 (1901); Barker Cedar Co. v. Roberts, 23 Ky, L. 1345 (1901); Doerhoefer v. Shewmaker, 29 Ky. L. 1193, 97 S. W. 7 (1907). To entitle a defendant to open and close because of admissions in his pleadings, such admissions must cover the plaintiff's entire cause of action, so as to dispense with the necessity of any proof on plaintiff's part to make out a prima facie case. Cammack v. Newman, 86 Ark. 249, 110 S. W. 802 (1908); Hyatt v. Clements, 65 Ind. 12 (1878); Benedict v. Penfield, 42 Hun (N. Y.) 176, 4 N. Y. St. 685 (1886); Abel v. Jarratt, 100 Ga. 732, 28 S. E. 453 (1897); Sorensen v. Sorensen, 68 Nebr. 483, 94 N. W. 540 (1903); Louisville H. & St. L. R. Co. v. Schwab, 127 Ky. 82, 105 S. W. 110 (1907). Where, however, the defendant has the affirmative of the issue, the fact that the complaint alleges facts not essential for the plaintiff to aver or prove which are denied by the answer, will not deprive defendant of his right to open and close. Murray v. New York Life Ins. Co., 85 N. Y. 236 (1881); Hurliman v. Seckendorf, 9 Misc. 264, 29 N. Y. S. 740 (1894); Lewis v. Donohue, 27 Misc. 514, 58 N. Y. S. 319 (1899). The statement of facts and part of the opinion of the court are omitted. COPELAND V. NEW ENGLAND INS. CO. 389 it is believed that very few instances occurred before that time.s2 But however unusual the resort to this mode of trial may be, it can not be questioned that the legal right to demur to evidence exists under proper regulations and restrictions. However, as its purpose seems to be, to withdraw facts from the tribunal specially provided for their determination, it is no favorite of our system. And when the hazard and disadvantage which it imposes upon the party demurring, are duly considered,83 and the few cases to which it may properly apply are recollected, there will be no danger of its coming into common practice. There are undoubtedly cases, though they are rare, in which a demurrer to evidence may be safely and properly taken. Where all the evidence in a case consists of written instruments, and these are introduced by the party having the affirmative, his opponent may safely demur to the evidence and be sure thereby to bring the merits of his case before the court. As it would be the province of the court to determine the construction and legal operation of the instruments, they would have, by the concession of the parties, all the materials necessary to enable them to determine the legal rights of the parties in the action. The facts being thus before them, they in applying the law to them are in the exercise of their appropriate duty. But a demurrer is not confined to written evidence. Where witnesses positively testify to certain definite facts, and there is no discrepancy between them, and no other evidence to be offered, a demurrer will properly bring these facts before the court, and enable them to judge whether they will sustain the action or defense which they are introduced to support. But it not infrequently happens, that the plaintiff or party having the affirmative, attempts to support the issue on his part by indirect and circumstantial evidence. And when the positions are to be established by inferences from many other facts, it is difficult, if not impracticable, to admit a demurrer. It may be well here to consider the effect of a demurrer to evidence. And we shall do it with the more care, because we apprehend that it was not duly considered or perfectly understood by the counsel on either side. It seems to have been supposed to be an admission of the truth of the evidence; and the 82 Golden v. Knowles, 120 Mass. 336 (1876); Rockwell v. Congress Hotel Co., 237 Ill. 98, 86 N. E. 740 (1908). In a number of states the practice of demurring to the evidence has fallen into disuse, having been superseded by a motion for a nonsuit or by a motion to direct a verdict for the defendant. See cases collected in Hopkins v. Railroad, 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354 (1895), and Bass v. Rublee, 76 Vt. 395, 57 Atl. 965 (1904); Denman v. Johnston, 85 Mich. 387, 48 N. W. 565 (1891); Colegrove v. N. Y. & H. R. Co., 20 N. Y. 492, 75 Am. Dec. 418 (1859); Finch v. Conrade, 154 Pa. 326, 26 Atl. 368 (1893); Bank v. Carr, 15 Pa. Super. Ct. 346 (1900); 13 P. & L. Dig of Pa. Dec. 23154. He that demurs to parol evidence, engages in an uphill business. For every fact is taken pro confesso, which the jury might, with the least degree of propriety, have inferred from his evidence." Per Tilghman, C. J., in Dickey v. Schreider, 3 Serg. & R. (Pa.) 413 (1817). court have been called upon, supposing it all to be true, to determine what inferences may be drawn from it, and whether it would be competent for the jury upon it to find a verdict for the plaintiffs. And it has been argued that if we would set aside a verdict found for the plaintiffs on this evidence, we must render judgment for the defendants, on the demurrer. But we think this is a mistaken view of the subject and fails to give to the demurrer its legal effect. It leaves it to the court to draw inferences from the circumstances proved and to judge of the weight of the evidence, which would be trenching upon the province of the jury. The effect of a demurrer to evidence is not only to admit the truth of the evidence, but the existence of all the facts which are stated in that evidence, or which it conduces to prove. Hence that most acute and learned pleader, Mr. Justice Gould, says that this demurrer, "though called a demurrer to evidence, is essentially a demurrer to the facts shown in evidence." Gould on Pleading, 47, 48, 49. As a demurrer to a declaration asks the opinion of the court upon the facts properly pleaded, so a demurrer to evidence asks their opinion upon the facts shown in evidence. In both cases the decision is purely a matter of law, and can not involve any questions of fact on the evidence. The true question always raised by this kind of demurrer is not what is competent for the jury to find, but what the evidence tends to prove. This view is fully sustained by a most clear and elaborate opinion given by the learned Lord Chief Justice Eyre, in pronouncing the judgment of the House of Lords in the case of Gibson v. Hunter, 2 H. Blackstone 187. This case contains a most lucid and able discussion of the whole subject. He says the precise operation of a demurrer to evidence is to take from the jury and refer to the judges the application of the law to the fact. In the nature of things the facts are first to be ascertained. Where the evidence is written, or if in parol, is positive, definite and certain, the party offering the evidence is bound to join in demurrer. But the reason of the rule "does not apply to parol evidence which is loose and indeterminate, which may be urged with more or less effect to a jury; and least of all will it apply to evidence of circumstances, which evidence is meant to operate beyond the proof of the existence of those circumstances, and to conduce to the proof of the existence of other facts. And yet if there be no demurrer in such cases, there will be no consistency in the doctrine of demurrers to evidence, by which the application of the law to the fact on an issue is meant to be withdrawn from a jury and transferred to the judges. If the party who demurs will admit the evidence of the fact, the evidence of which fact is loose and indeterminate, or in the case of circumstantial evidence, if he will admit the existence of the fact, which the circumstances offered in evidence conduce to prove, there will then be no more variance, in this parol evidence, than in a matter in writing, and the reason for compelling the party who offers the evidence to join in demurrer, will then apply, and the doctrine of demurrers to evidence COPELAND V. NEW ENGLAND INS. CO. 391 will be uniform and consistent." See also Middleton v. Baker, Cro. Eliz. 752.84 This doctrine seems to be founded upon and well supported by the case of Wright v. Pindar, reported in Style 34, and also in Aleyn 18. In Style, Chief Justice Rolle says "that matter of fact ought to be agreed in a demurrer to evidence, otherwise the court can not proceed upon the demurrer; for the judges can not try the matter of fact, for that were for the judges to give the verdict, which belongs to the jury to do." And in Aleyn 18, the decision is thus stated: "And it was resolved, that he that demurs upon the evidence ought to confess the whole matter of fact to be true, and not refer that to the judgment of the court. And if the matter of fact be uncertainly alleged, or that it be doubtful whether it be true or not, because offered to be proved only by presumptions and probabilities, and the other party will demur thereupon, he that alleges the matter can not join in the demurrer with him; but ought to pray the judgment of the court, that he may not be admitted to his demurrer unless he will confess the matter of facts to be true. And for that the defendant did not so in this case, both parties having misbehaved themselves, the court can not proceed to judgment." * * * Now, in the case at bar, the defendants demur generally to evidence, which is circumstantial, loose and indeterminate. And so far from reciting the facts and conclusions which the evidence tends to prove, and which they intend to admit, they refer generally to all evidence as it exists in the form of depositions, consisting of great variety of interrogatories and cross-interrogatories, and the answers to them, which are neither direct and positive nor consistent. This we think to be clearly irregular. To quote the language of Judge Story, "the defendants have demurred, not to facts, but to evidence of facts, not to admissions, but to mere circumstances of presumption." "85 The evidence offered in this case tends to show, and undoubtedly does show, that the brig insured, in a squall (not a severe one, to be sure) ran upon a coral reef and was totally lost. This proof, by itself, clearly would support the plaintiff's action. But the defendants contend that the testimony of the same witnesses tends to show that the vessel was run on shore intentionally or through the gross incapacity of the master. Now these are distinct substantive facts, which the defendants wish to establish. It is true the evidence tends strongly, very strongly, to prove them. But the defendants can not avail themselves of these grounds of defense on a demurrer to the evidence. If the plaintiff's evidence does not show a prima facie case, the defendants may demur. But if they wish to set up any facts in defense, they must resort to the jury to have them established. s. c. Baker's Case, 5 Co. Rep. 104 (1600), and see Newis v. Lark, Plowd. 403, 411( 1871); Fitz Harris v. Boiun, 1 Lev. 87 (1663); Hurst v. Dippo, 1 Dall. (U. S.) 20, 1 L. ed. 19 (1774); Miller v. Ware, 1 C. & P. 237 (1824), note; Nelson v. Whitfield, 82 N. Car. 46 (1880). 85 Young v. Black, 7 Cranch (U. S.) 565, 3 L. ed. 440 (1813). The depositions introduced by the plaintiffs were taken by the defendants, and thus the facts may be presented in an order and a form most favorable to the latter. The defendants, too, by demurring, admit the facts which the evidence conduces to prove for the plaintiffs, and can not avail themselves of such as it tends to show for the defendants. The plaintiffs, by joining in the demurrer, did not admit the truth of that part of the testimony which is favorable to the defendants, much less any inferences which may be drawn from it. If the defendants wish to set up any facts to exonerate or discharge them, they must look to the jury to establish them. The court can not examine, compare and weigh the different parts of the evidence. It would be performing a duty which the law has not imposed upon them, and which they uniformly refuse to accept from the agreement of the parties themselves. Without going into further examination of the evidence, we are fully convinced that the demurrer was not properly tendered, that the evidence did not present a proper case for a demurrer, that the plaintiffs ought not to have joined in it, but to have prayed the judgment of the court whether the defendants should be admitted to it. The court have an important discretion in allowing or disallowing demurrers to evidence. Although a demurrer is a matter of right and the opposite party may be compelled to join in it, when properly presented, yet he should always be careful to see that it contains the proper admissions before he joins in it. On the whole, we are satisfied that the demurrer was tendered and joined without fully examining and duly considering the nature and effect of the measure. And we think, not as Lord Chief Justice Rolle said, "that both parties have misbehaved themselves," but in the language of the Supreme Court of the United States, "that the demurrer has been so incautiously framed that there is no manner of certainty in the state of facts upon which any judgment can be founded. Under such a predicament the settled practice is to award a new trial, upon the ground that the issue between the parties has not been tried." This was done in the analogous cases of Wright v. Pindar, and Gibson v. Hunter, by the House of Lords, and in Fowle v. Common Council of Alexandria, by the Supreme Court of the United States. 87 Venire facias de novo awarded. Shields v. Arnold, 1 Blackf. (Ind.) 109 (1820); Maus v. Montgomery, 11 Serg. & R. (Pa.) 329 (1824); Morrison v. McKinnon, 12 Fla. 552 (1868); Van Stone v. Stillwell, 142 U. S. 128, 35 L. ed. 961, 12 Sup. Ct. 181 (1891); University of Va. v. Snyder, 100 Va. 567, 42 S. E. 337 (1902). Compare Fowler v. Macomb, 2 Root (Conn.) 388 (1796). 8711 Wheaton (U. S.) 320, 6 L. ed. 608 (1826). Accord: Dormady v. Bank, 2 Scam. (Ill.) 236 (1840); Ingram v. Jacksonville St. R. Co., 43 Fla. 324, 30 So. 800 (1901). "The demurrant attacks the evidence of his adversary, and in the very nature of things, this attack can not be aided by his own evidence. The sufficiency of the adversary's evidence to support the issue upon his part is the only question presented by the demurrer, and this question must be determined without reference to the evidence of the demurring party; indeed, such a party does not and can not have any evidence. The evidence of the adversary is alone involved in the issue raised by the demurrer." Fritz v. Clark, 80 Ind. 591 (1881); Goodman v. Ford, 23 Miss. 592 (1852). Every |