Bayard’s Notebook, 89.[*]
Supreme Court of Delaware, Sussex County.
March, 1795.
Upon the trial of this cause at a former term, the defendants demurred to the plaintiff’s evidence. The plaintiff since the trial having discovered new evidence, upon affidavit of the fact, moved to set aside the conditional verdict given upon the demurrer and to be allowed a new trial.
The motion was supported by Miller and Peery for the plaintiff and opposed by Ridgely and Bayard for defendant.
PER CURIAM.
In this case there is a demurrer to evidence, which is still depending. The verdict is neither for the plaintiff nor for defendant till demurrer is decided. The verdict is inchoate, and in its present state there cannot be a motion to set it aside. The Court must pass on the demurrer before the motion can be entertained.
Motion refused.