Bayard’s Notebook, 130
Court of Common Pleas of Delaware, New Castle County.
December, 1795.
When the plaintiff had gone through his evidence, the defendant offered to demur. The counsel for the plaintiff contended that upon demurrer to parol evidence the opposite party was not obliged to join, and cited 1 Plowd.Comm. 4, Salk. 122, and Cro. Eliz., 752. Upon the other side the distinction was denied between
Page 390
parol and written evidence. Cited 4 Bac.Abr. 136, 5 Co. 104, an Peery’s Lessee v. Burton, ante.
CHIEF JUSTICE.
This point was determined in the late Supreme Court in the case o Attick’s Lessee v. Marsh, in which case the present Chief Justice [of the] Supreme Court and myself were counsel. There is no distinction between parol and written evidence. The demurrer admits the evidence to be true. The party therefore has the full benefit of it; when the evidence is admitted to be true there can be nothing for the jury to decide. For when the evidence is admitted true, what it proves is a question of law. We consider that there is a right to demur, and an obligation to join in demurrer.
Johns and Read for plaintiff. Bayard for defendant.