Demurrer

(from the latin demorart, or old French demorrer, to wait or stay,) in pleading, imports, according to its etymology, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment of the court whether he is bound to answer, 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61. A demurrer may be for insuffthe ground that the case shown by the opposite party is essentially insufficient, or on the ground that it is stated in an inartificial manner; for the law requires in every plea, and all other pleadings, two things: the one that it be in matter sufficient, the other that it be deduced and expressed according to the forms of law; and if either the one or the other of these be wanting, it is cause of demurrer.

Hob. 164..

A demurrer, as in its nature, so also in its form, is of two kinds; it is either general or special. With respect to the effect of a demurrer, it is, first, a rule, that a demurrer admits all such matters of fact as are sufficiently pleaded.

Bac. Abr. Pleas N 3; Com. Dig. Pleader,Q 5.

Again it is a rule that, on a demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it.

Com. Dig. Pleader, M 1,M 2; Bac. Abr. Pleas, A, N 3; 5 Rep. 29 a; Hob. 56; 2 Wils. 150; 4 East, 502; 1 Saund. 285, n. 5.

For example, on a demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff, 2 Wils. R. 150, provided the declaration be good; but if the declaration also be bad in substance, then upon the same principle, judgment would be given for the defendant.

5. Rep. 29a.

For, when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear. It is, however, subject to the following court decide against the plea, they will give judgment. of respondeat ouster, without regard to any defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172; secondly, the court will not look back into the record, to adjudge in favour of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. 5 Barn. & Ald. 507; lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider the right in matter of substance, and not in respect of mere form such as should have been the subject of a special demurrer.

2 Vent. 198-222.

There can be no demurrer to a demurrer; for a demurrer upon a demurrer, or pleading over when an issue in fact is offered, is a discontinuance.

Salk.219; Bac. Abr. Pleas, N 2. _See in general as to demurrers, Bac. Abr. Pleas, N; Com. Dig. Pleader, Q; Saund. Rep. Index, tit.

Demurrers; Lawes Civ. Pl. ch.

8; 1 Chit. Pl. 639-649.