Dunford v. Johnson

2 Mart. 306

Opinion

This cause was submitted to the jury, and the plaintiff's evidence being gone through, the defendant's demurred thereto.

THE plaintiff's counsel contended that they could not be compelled to join in the demurrer, the legislature having provided that it shall be the duty of the jury to decide questions oflaw, when they have no doubt, 1805, ch. 26, sect. 6: but the court overruled the objection.

They next moved for leave to discontinue, which was granted, on payment of costs, on the authority of 5 Bac. Ab. 476, and the case of Boucher vs. Lawson, Cases Temp. Hardwicke, 194, in which it is held that the court will grant leave to discontinue, after a special verdict, but not in a hard action. It being considered that the parties were nearly in the same situation, after a demurrer to the evidence, as after a special verdict.