demurrer

A demurrer is an objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for some defect in law in the pleading. It admits the facts, and refers the law arising thereon to the court. The opposite party may demur when his opponent's pleading is defective in substance or form, but there can be no demurrer for a defect not apparent in the pleadings... A general demurrer lies only for defects in substance, and excepts to the sufficiency of the pleading in general terms, without showing specially the nature of the objection. A special demurrer is only for defects in form, and adds to the terms of a general demurrer a specification of the particular ground of exception.

In pleading. The formal mode of disputing the sufficiency in law of the pleading of the other side, in effect It is an allegation that, even lf the facts as stated in the pleading to which objection is taken be true, yet their legal consquencos are not such as to put the demurring party to the necessity of answering them or proceeding further with the cause. Reid v. Field, 83 Va. 26, 1 S. E. 395; Parish v. Sloan, 38 N. C. 609; Goodman v. Ford, 23 Miss. 595; Hos-tetter Co. v. Lyons Co. (C. C.) 99 Fed. 735. An objection made by one party to his opponent's pleading, alleging that he ought not to answer it, for seme defect in law in the plcading. It admits the facts, and refers the law arising thereon to the court. 7 How. 581. It Imports that the objecting party will net proceed, but wlll wait the judgment of the court whether he is bound so to do. Co. Litt 71b; Steph. PI. 61. In Equity. An allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the defendant to answer; or that, for some reason apparent on the face of the bill, or on ac-ceunt of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, the defendant ought not to be compelled to answer to the whole bill, or to some certain part thereof. Mitf. Eq. PL 107. Classification and varieties. A general demurrer is a demurrer framed in general terms, without showing specifically the nature of the objection, and which is usually resorted to where the objection is to matter of substance. Steph. PI. 140-142; 1 Chit. PI. 663. See Reid v. Field, 83 Va. 26, 1 S. E. 395; In S. v. National Bank (C. C.) 73 Fed. 381; McGuire v. Van Pelt, 55 Ala. 344; Taylor v. Taylor, 87 Mich. 64, 49 N. W. 519. A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the nature of the objection, and the particular ground of the exception. 3 Bouv. Inst. no. 3022. Darcey v. Lake, 46 Miss. 117; Christmas v. Russell, 5 Wall. 303, 18 In Ed. 475; Shaw v. Chase, 77 Mich. 436, 43 N. W. 883. A speaking demurrer is one which, in order to sustain itself, requires the aid of a fact not appearing on the face of the pleading objected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection. Wright v. Weber, 17 Pa. Super. Ct. 455; Walker v. Co.nant, 65 Mich. 194, 31 N. W. 786; Brooks v. Gibbons, 4 Paige (N. Y.) 375; Clarke v. Land Co., 113 Ga. 21, 38 S. E. 323. A parol demurrer (not properly a demurrer at all) was a staying of the pleadings; a suspension of the proceedings in an action during the nonage of an infant, especially in a real action. Now abolished. 3 BlComm. 300.

— Demurrer book. In practice. A record of the issue on a demurrer at law, containing a transcript of the pleadings, with proper entries; and intended for the use of the court and counsel on the argument 3 Bl. Comm. 317; 3 Steph. Comm. 581.

— Demurrer ore tenus. This name is sometimes given to a ruling on an objection to evidence, but la not properly a demurrer at all. Mandelert v. Land Co.., 104 Wis. 423, 80 N. W. 726.

— Demurrer to evidence. This proceeding (now practically obsolete) was analogous to a demurrer to a pleading. It was an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary had produced was insufficient in point of law (whether true or not) to make out his case or sustain the issue. Upon joinder in demurrer, the jury was discharged, and the case was ar gued to the court in bano, who gave judgment upon the facte as shown in evidence. See 3 Bl. Con 372; Bass v. Rublee, 76 Vt. 395, 57 Atl. 966; Patteson v. Ford, 2 Grat. (Va.) 18; Suydam v. Williamson, 20 How. 436, 15 It. Ed. 978; Railroad Co. v. McArthur, 43 Miss. 180.

— Demurrer to interrogatories. Where a witness objects to a question propounded (particularly on the taking of a deposition) and states his reason for objecting or refusing to answer, it is called a "demurrer to the interrogatory," though the term cannot here be understood as used in its technical sense.

A pausing or resting; a resting in the judgment of the law; a pleading at law which excepts or objects to the pleading of the opposite party, as being insufficient in law, and by which the party objecting rests or abides upon the point in question, and submits it to the judgment of the court, — where it states the causes of objection, called a special demurrer; a pleading in equity which objects that the bill does not contain sufficient matter of equity to entitle the complainant to relief, and submits it to the court whether upon the face of the bill the defendant is bound to answer, — called, where it alleges new matter, a speaking demurrer. Demurrer book: a record of the issue on a demurrer at law, containing a transcript of the pleadings with proper entriea Demurrer to eyidence: an objection or exception by one of the parties to an action that the evidence produced by the opposite party on the trial is insufficient in law, and calling on the court to give judgment as upon the facts alleged. Such a demurrer admits whatever the evidence fairly tends to prove.

A pleading objecting that the adversary's last pleading is insufficient or bad in law, and asking judgment thereon. A special demurrer states the causes of objection. Demurrer to the evidence: an objection by one of the parties to an action that the evidence produced by the other was insufficient m law to maintain his case; whereby the jury were dismissed and the court called upon to give judgment on the facts as alleged. Nearly obsolete. In equity, a pleading by the defendant praying judgment whether he is bound to answer on the face of the bill; if alleging new matter, it is called a speaking demurrer. Demy./r. Half. Demy-sangue: half-blood.

In equity pleading. An objection to the complainant's bill in a suit in equity, of nearly the same nature as a demurrer in law, being an appeal to the judgment of the court whether, upon the face of the bill itself, the defendant shall be bound to answer; as for want of sufficient matter of equity therein contained. 3 Bl. Com. 446. 4 Steph. Com. 21. A demurrer is an allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer; or that, for some reason apparent on the face of the bill, or because of the omission of some matter which ought to be contained therein, or for want of some circumstance which ought to be attendant thereon, the defendant ought not to be compelled to answer. It therefore demands the judgment of the court whether the defendant shall be compelled to make answer to the plaintiff's bill or to some certain part thereof. Mitford's Chanc. Pl. 107, 108, [128, 129, Moulton's ed. and notes, ibid.]

(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.