2.
A demurrer may be for insufficiency either in substance or in form that
is, it may be either on the 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 pleading, two
thing's; 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.
3.
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 it 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; Bad. Abr. Pleas. 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. 1&0; 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. 29 a. 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.
4.
It is, however, subject to, the following exceptions; first, if the
plaintiff demur to a plea in abatement, and the 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
favor 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.
5.
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.
6. Demurrers are general and special, and demurrers to evidence, and to in
terrogatories.
7.
- 1. A general demurrer is one which excepts to the sufficiency of a
previous pleading 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.
8.
- 2. 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 particuIar ground of exception. Co. Litt. 72, a.;
Bac. Abr. Pleas, N 5.
9.
A special demurrer is necessary, where it turns on matter of form only;
that is, where, notwithstanding such objections, 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 with a view to the discouragement of merely formal objections, it
is provided in nearly the same terms, that the judges "shall give
judgment according to the very right of the cause and matter in law as
it shall appear unto them, without regarding 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 to 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
under those statutes, need not be particularly set down. It follows,
therefore, that unless the objection be clearly of the substantial kind,
it is the safer course, in all cases, to demur specially. Yet, where a
general demurrer is plainly efficient, it is more usually adopted in
prctice; 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 him 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 is not sufficient to object, in
general terms, that the pleading is "uncertain, defective, and
informal," or the like, but if is necessarily to show in what, it
respect, uncertain, defective, and informal. 1 Saund. 161, n. 1, 337 b,
n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.
10.-
3. A demurrer to evidence is analogous to a demurrer in pleading; the
party from whom it comes declaring that he will not proceed, because the
evidence offered on the other side, is not sufficient to maintain the
issue. Upon joinder in demurrer, by the opposite party, the jury are, in
general, discharged from giving any verdict; 1 Arch. Pr. 186; and the
demurrer being entered on record, is afterwards argued and decided by
the court in banc; and the judgment there given upon it, may ultimately
be brought before a court of error. See 2 H. Bl. 187 4 Chit. Pr. 15
Gould on Pl. c. 9, part 2, §47 United States Dig. Pleading, Viii.
11.
- 4. Demurrer to interrogatories. By this phrase is understood the
reasons which a witness tenders for not answering a particular question
in interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a
demurrer, which admits the facts stated, for the purpose of taking the.
opinion of the court but by an abuse of the term, the witness objection
to answer is called a demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12.
The court are judicially to determine their validity. The witness must
state his objection very carefully, for these demurrers are held to
strict rules, and are readily overruled if they cover too much. 2 Atk.
524; 1 Y. & J. 32. 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 Bouv. Inst. Index, h. t.
DEMURRER BOOK Eng.
law. When an issue in law is formed, a transcript is made upon paper of
all the pleadings that have been filed or delivered between the
parties, which transcript is called the demurrer book. Steph. Pl. 95.
See Paper book.
No comments:
Write comments