Demurrer

SPECIAL, in pleading. 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 exception. Co. Litt. 72, a; Bac. Abr. Pleas, N 5. A special demurrer is necessary, where it turns on matter of form only; that is where notwithstanding such objection, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For by. two statutes, 27 Eliz. ch. 5, and 4 Ann, ch. 16, passed in a view to the discouragement of merely formal objections, it is provided in nearly the same terms, that the judges “shall give judgappear unto them, without regard. ing any imperfection, omission, defect, or want of form, except those only which the party demurring shall specifically and particularly set down and express, together with his demurrer,’ as the causes of the same.” Since these statutes, therefore, no mere matter of form can be objected on a general demurrer; but the demurrer must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies, but also of all objections in substance, or regarding the very right of the cause, (as the statute expresses it) as do not require, under those statutes, to be particularly set down. It follows, therefore, that unless the objection be clearly of this substantial kind, it is the safer course, in all cases, to demur specially. Yet, where a general demurrer is plainly sufficient, it is more usually adopted in practice; because the effect of the special form being to apprise the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience of enabling him to prepare to maintain his pleading by argument, or of leading to apply the earlier to amend. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed that it 1s not sufficient to object, in general terms, that the pleading is “uncertain, defective, and informal,” or the like, but it is necessary to show in what respect, uncertain, defective, and informal. 1 Saund. 161, n. 1; 837 b, n. 3; Steph. Pl. 159-161; 1 Chit. PI. pleading. A general demurrer is one which excepts to the sufficiency of some previous pleadings in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr. Pleas, N. 5; Co. Lit. 72 a.