Moore v. Pillsbury , 43 How. Pr. 142 ( 1872 )

Bockes, J.

—The issue of law raised by the demurrer must first be determined, the court not having otherwise directed (Code, sec. 251), and it determined in favor of the defendant, judgment must be for the latter on the entire record. In that event, the decision will be, that the imprisonment of the plaintiff by the defendant, was lawful, and the justification of the latter will-be complete. In this condition of the case, it is insisted on the part of the defendant, that the motion to change the place of trial for the convenience of witnesses, is premature; that it cannot now be known, or insisted with certainty, that witnesses in the case will be necessary, or indeed, that any trial requiring the examination of witnesses will ever take place. I am of the opinion, that the objection is well taken. The decision on the issue of law, if in favor of the defendant ends the case, without the examination of any witnesses, certainly, until the issues be reformed, and whether this will be desired by the party, or permitted by the court, cannot now be known.

As the case now stands, it cannot be asserted, except hypothetically, that any witnesses will be needed in the case, and consequently it cannot be adjudged, that the attendance of any witnesses will ever be required.

The motion must be denied, with ten dollars costs, but' with liberty to the plaintiff to renew it after the issue of law shall have been disposed of.