Upon joinder •by the opposite party, the jury is generally discharged from giving any verdict ; 1 Archb. Pr. 186; and the demurrer being entered on record is afterwards argued and decided by the court in bane; and the judgment there given upon it may ultimately be brought before a court of error ; Andr. Steph. P1. 180. It admits the truth of the evidence given and the legal deductions therefrom; Davis v. Steiner, 14 Pa. 275, 53 Am. Dec. 547 ; Hopkins v. Bowers, 111 N. C. 175, 16 S. E. 1; Doe v. Rue, 4 Blackf. (Ind.) 263, 29 Am. Dec. 368; but only such infer ences •as the jury might have drawn ; Union S. S. Co. v. Nottinghams, 17 Gratt. (Va.) 115, 91 Am. Dec. 378; MacKinley v. McGregor, 3 Whart. (Pa.) 369, 31 Am. Dec. 522. An of fer, in a civil case, so to demur, is not stricti juris, but is allowable only in the discretion of the court and should be refused if there is not colorable cause for it ; Jones v. Ireland, 4 Ia. 63; it may be tendered by either party and the court may compel a joinder, but the power should be exercised with discretion, and when exercised, the action of the court is open to review ; Eubank's Ex'r v. Smith, 77 Va. 206. See Plant v. Edwards, 85 Ind. 588. All facts proved and legitimate infer ences therefrom must be admitted; Hopkins v. R. R., 96 Tenn. 400, 34 S. W. 1029, 32 L. R. A. 354 ; Illinois Cent. R. Co. v. Brown, 96 Tenn. 559, 35 S. W. 560; and until the party demurring does this, the party offering the evidence is not required to join in demurrer ; 2 H. Bl. 189 (where the subject and the prac tice thereon was elaborately considered in the House of Lords) ; and if the evidence is prima facie insufficient the demurrer is sus tained ; State v. Goetz, 131 Mo. 675, 33 S. W. 161; otherwise if there is some evidence on each material point ; Hagan v. B'l'g & Loan Ass'n, 2 Kan. App. 711, 43 Pac. 1138; Cherokee & P. Coal & Mining Co. v. Britton, 3 Kan. App. 292, 45 Pac. 100. "Since it was determined that a demurrer to evidence could not be resorted to as a matter of right, it has fallen into disuse ; and as long ago as 1813 (Young v. Black, 7 Cra. (U. S.) 565, 3 L. Ed. 440) it was regarded as an unusual proceeding, and one to be allowed or denied by the court in the exercise of a sound dis cretion under all the circumstances of the case;" Suydam v. Williamson, 20 How. (13. S.) 427, 436, 15 L. Ed. 978. A bill of ex-, ceptions IS more comprehensive, in that it permits the review of rulings upon the ad mission of evidence, objection to which is waived by the. demurrer ; id. An offer of an instruction to find for the defendant, sub mitted at the close of the plaintiff's evidence, is equivalent to a demurrer to the evidence; Mitchell, v. Ry. Co., 82 Mo. 106; Baker v. State, 31 Ohio St. 314.
The result of a demurrer to evidence must be final judgment for one party or the other —for the defendant if his demurrer were sustained or for the plaintiff if it were over ruled, and in the latter case judgment would be given on the verdict if a conditional one had been taken, or if not, a writ of inquiry would issue to assess the damages. This
practice • appears from the cases already cited and is well stated in Obaugh v. Finn, 4 Ark. 110, 37 Am. Dec. 773, where it was held to be error to retain the jury after joinder in demurrer to evidence and to submit the case to the jury after overruling the demurrer. It would seem therefore that after that has been done the defendant demurrant is pre cluded from introducing evidence; State v. Groves, 119 N. C. 822, 25 S. E. 819; although it appears to have been done in an Oklahoma case in which, on writ of error, the United States Supreme Court held that where the defendant, after his demurrer to the evidence was overruled, had introduced evidence in his own behalf, he waived any supposed er ror in the decision on the demurrer; Mc Cabe & Steen Const. Co. v. Wilson, 209 U. S. 275, 28 Sup. Ct. 558, 52 L. Ed. 788. And it was also done in Oglesby v. R. Co., 177 Mo. 272, 76 S. W. 623, where, after a demurrer to evidence was overruled, the defendant put in its testimony, which, with the plaintiff's, was considered as a whole and reviewed on ap peal, and the court declined to review the judgment that the case was one to go to the jury.
In criminal trials it is entirely discretion ary with the court whether it will entertain a demurrer to the evidence,. even though counsel for the prisoner and state should both consent to it ; Duncan v. State, 29 Fla. 439, 10 South. 815. In some courts, the pro priety of the proceeding, in criminal cases, is denied; Nelson v. State, 47 Miss. 621; Mil ler v. State, 79 Ind. 198; Baker v. State, 31 Ohio St. 314 ; Doss v. Com., 1 Grath (Va.) 557 ; State v. Alderton, 50 W. Va. 101, 40 S. E. 350 ; while in others it is allowed but not encouraged ; Martin v. State, 62 Ala. 240; State v. Soper, 16 Me. 293, 33 Am. Dec. 665. If allowed, it must state facts, and not evi dence tending to prove those facts; Crowe v. People, 92 Ill. 231 (and this applies also in civil causes; Story, J., in Foyle v. Alex andria, 11 Wheat. [U. S.] 320, 6 L. Ed. 484) ; and if it is resorted "to by an accused, and overruled, he cannot introduce further evi dence to controvert that which he has ad mitted; State v. Groves, 119 N. C. 822, 25 S. E. 819.
A demurrer to the evidence in equity has the same effect as at law, and concedes ev ery fact which such evidence tends to prove, and every inference fairly deducible from the facts proved ; Healey v. Simpson, 113 Mo. 340, 20 S. W. 881.
For a full discussion of the subject see 32 L. R. A. 354.
Demurrer to interrogatories is the reason which a witness tenders for not answering a particular question in interrogatories ; Swanst. 194. It is not, strictly speaking, a demurrer, except in the popular sense of the word ; Gresl. Eq. Ev. 61. The court are ju dicially to determine its validity. The wit ness must state his objection very carefully ; for these demurrers are held to strict rules, and are readily overruled if they cover too much ; 2 Atk. 524; 1 Y. & J. 132.