Pickel vs. Isgrigg. court having withdrawn the case from the jury by a demurrer to evidence, or by having submitted to a verdict for the plaintiffs, subject to that demurrer, cannot hope for a judgment in their favor, if by any fair construction of the evidence the verdict can be sustained." That was an action of ejectment, brought by the defendants in error to recover 50,000 acres of land, part of which was in the occupancy of the defendants in the court below. The defendants in that court disclaimed as to part of the land, and went to trial as to the residue. The original plaintiffs had the oldest title, and the case depended on the question whether their grant covered the land in dispute. According to the courses and distances given in the plaintiffs' patent, a survey excluded the land in dispute. At the trial in the court below the plaintiffs read the deposition. of one Wilson, who made the survey of the 50,000 acres. He testified that the line which formed the western boundary of the land intended to be granted was never run or marked. In his office he assumed a course and distance, and terminated the line in his mind at two small chestnut oaks in the wilderness, without indicating in his survey just where the two chestnut oaks might be found. No natural objects were given in the survey by which the course and distance might be controlled. Wilson had marked two small chestnut oaks as the corner of Robert Young's tract, and it was these two trees which he had in his mind, without indicating his intention on his survey. The defendants demurred to the plaintiffs' testimony, and the jury found a verdict for the plaintiffs, subject to the judgment of the court on the demurrer. The court overruled the demurrer and gave judgment for the plaintiffs. This ruling was reversed on writ of error, the Supreme Court holding that the defendants in error were not entitled to the land in possession of the plaintiffs in error, because neither the patent nor the face of the plat furnished any information by which the Pickel vs. Isgrigg. corner called for in the patent could be controlled. This decision was in effect that the testimony of Wilson was inadmissible to control the grant, and, that testimony out of the record, there was nothing to sustain the claim of the plaintiffs below to the land in dispute. There being no legal evidence in support of the affirmative of the issue in the court below as to the land in dispute, of course the demurrer should have been sustained. This case, on its facts, is not in conflict with the ruling in Fowle vs. Common Council of Alexandria, supra, which is sustained both by reason and authority.' The plaintiff's counsel relied mainly on the decisions in the Supreme Court of this state. In Straugh vs. Gear, 48 Indiana, 100, the appellees, as indorsees of a promissory note, sued the maker. The answer admitted the execution of the note, but charged that the defendant's signature was procured to the same by fraudulent representations, of which the plaintiffs had notice. It seems that when the defendant concluded his testimony and rested, the plaintiff demurred to the evidence, and the court sustained the demurrer. On appeal the case was affirmed on the ground that there was no evidence to show that the plaintiffs below bought the note with knowledge of the defense which the makers had against the payee. The evidence of the defendant, upon whom the affirmative of the issue rested, was relative to a part only of that issue, and it is clear that in such a case a demurrer to the evidence may be safely risked, while it is fatal to a demurrer if there be evidence relevant to the whole issue. In deciding this case on appeal the court says: "When the plaintiff demurs to the evidence of the defendant, he should set out all the evidence offered by the plaintiff and defendant at full length, so that the court may determine upon the whole evidence for whom judgment shall be rendered." This announcement of the 'Gould on Plead. c. 9, part 2; Copeland vs. New England Ins. Co. 22 Pickering, 135; Gibson vs. Hunter, 2 H. Blackstone, 187. Pickel vs. Isgrigg. court, besides being objectionable as confounding the relative functions of court and jury, was hardly called for in the decision of the case. Thomas vs. Ruddle, 68 Indiana, 326, was also a suit by the appellee, as indorsee, against the maker of a promissory note payable at a bank in this state. The answer was non est factum, and this was the only issue in the case. After all the evidence was in on both sides, the plaintiff, although he had the burden of the issue, demurred to the evidence, setting it all out in his demurrer, and it was sustained by the court. On appeal it was held that much of the evidence which tended to show that the defendant's signature to the note had been procured by fraud was irrelevant under the issue of non est factum, and the case was affirmed on the ground that the defendant below was guilty of negligence in signing the note, and that the plaintiff below acquired the note after it became due, but from prior indorsees, who, for anything that appeared, to the contrary, were bona fide holders. "But," say the court, "when either party demurs to the evidence his demurrer must be ruled upon according to the practice in this state, in view of all the evidence which has been given in the cause at the time the demurrer was filed.” Other Indiana cases were cited in support of the demurrer, but they need not be reviewed, as I think the law is correctly stated in Fowle vs. Common Council of Alexandria, supra. In the case in hand, the plaintiff had no right to assume that she had sustained the affirmative of the issue and demur to the defendant's evidence. There was no joinder in the demurrer, which was necessary, and the proper admissions were not made in the demurrer, or upon the record, upon which the court could found a judgment. A new trial is the only solution of the embar rassment. NOTE-A demurrer to evidence is only applicable to the evidence of Pickel vs. Iegrigg. the adverse party, holding the affirmative of the issue, and cannot be applied to negative testimony. Goodman vs. Ford, 23 Mississippi, 592; Stiles vs. Inman, 55 Mississippi, 469. But in some of the cases it is said that either party has a right to demur to the evidence of the other. But these cases were where a special defense was set up to an action on a promissory note. Green vs. Buckner, 6 Leigh (Va.), 82; Rohr vs. Davis, 9 Leigh, 30; Thomas vs. Ruddell, 66 Indiana, 326; Strough vs. Gear, 48 Indiana, 100. A demurrer to evidence must state facts and not merely the evidence conducing to prove them. Waul vs. Kirkman, 27 Mississippi, 823; Harden vs. Snyder, 15 Iowa, 460; Dormady vs. State Bank, 2 Scammon 236. A plaintiff is not bound to join in a demurrer to evidence, which merely states the evidence, and not the facts which it tends to establish. Crowe vs. People, 92 Illinois, 231. But after a voluntary joinder the plaintiff cannot object that the demurrer admits the evidence instead of the facts which the evidence goes to establish. Valtez vs. O. & M. R'y Co., 85 Illinois, 500. But where the evidence is plain and direct, and not contradictory or inferential, it is sufficient to state the evidence, without stating the facts which are deducible from it. Ditto vs. Ditto, 4 Dana (Ky.), 502. In a demurrer to evidence the party who demurs is held to admit every fact, which a jury in the exercise of a fair and reasonable discretion, could infer from the evidence; but he does not admit forced or violent inferences. Jones vs. Vanzandt, 2 McLean, 596; Fowle vs. Common Council, 11 Wheaton, 320; United States Bank vs. Smith, 11 Wheaton, 172; Thornton vs. Bank of Washington, 3 Peters, 40; Copeland vs. New England Ins. Co., 22 Pickering, 135; Clopton vs. Morris, 6 Leigh, 278; Donaldson vs. Waters, 30 Alabama, 175; Higgs vs. Shehee, 4 Florida, 382; Tucker vs. Bitting, 32 Pennsylvania State, 428; Booth vs. Colton, 13 Texas, 359; Forbes vs. Church, 3 Johnson's Cases, 159; Chapize vs. Bane, 1 Bibb (Ky.), 612; Bradbury vs. Reed, 23 Texas, 258; Bates vs. Bates, 33 Alabama, 102; McCreary vs. Fike, 2 Blackford, 374; Valtez vs. O. & M. R'y Co., 85 Illinois, 500; Fent vs. T., P. & W. R. W. Co. 59 Illinois, 349; Phillips vs. Dickerson, 85 Illinois, 11; Atherton vs. Sugar Creek, etc., Co., 67 Indiana, 334; Coates vs. Galena, etc., R. R. Co., 18 Iowa, 277; Jones vs. Ireland, 4 Iowa, 63; United States vs. Williams, Ware, 175.-[REPORTER. United States vs. Bixby. UNITED STATES vs. FRANK BIXBY. DISTRICT COURT-DISTRICT OF INDIANA.-APRIL, 1881. 1. EMBEZZLEMENT ASSIGNEE IN BANKRUPTCY.-An assignee in bankruptcy cannot be convicted of embezzlement under section 5504 of the Revised Statutes. 2. SCOPE OF SECTION 5504 OF REVISED STATUTES.-Under that section an officer can only be guilty of embezzling such moneys as he is required to deposit with the Treasurer, Assistant Treasurer, or a designated depositary of the United States, in the name and to the credit of the court. 3. CONVERSION OF TRUST FUNDS BY ASSIGNEE.-There is no statute making it embezzlement for an assignee in bankruptcy to convert to his own use trust funds which come into his hands. Motion to quash indictment for embezzlement. C. L. Holstein, U. S. District Attorney, for United States. Gordon, Lamb & Shepard, for defendant. GRESHAM, J.— The defendant is indicted for embezzling funds which came into his hands as assignee of several estates in bankruptcy. The indictment is based upon section 5504 of the Revised Statutes, which reads as follows: "Every clerk or other officer of a court of the United States, who fails forthwith to deposit any money belonging in the registry of the court, or thereafter paid into court, or received by the officers thereof, with the treasurer, assistant treasurer, or a designated depositary of the United States, in the name and to the credit of such court, or who retains or converts to his own use, or to the use of another, any such money, is guilty of embezzlement," etc. It is only such moneys as are required to be deposited |