Demurrer in United Kingdom

Meaning of Demurrer

The following is an old definition of Demurrer [1]: A declaration that ” the party will go no further, because the other has not showed sufficient matter against him; ” imports that the objector will wait the judgment of the court whether he is bound to proceed. An admission of the fact, submitting the law to the court. The tender of an issue in law upon the facts established by the pleading. Also, the act of tendering such an issue; and, the writing in which the tender is made. Demur. To object for legal insufficiency; to interpose a demurrer. Demurrable. Admitting of a demurrer. Demurrant. One who demurs; a demurrer. In law, or at common law, an issue upon matter of law is called a ” demurrer: ” it confesses the facts to be true as stated by the opposite party, but denies that, by the law arising upon those facts, any injury is done to the plaintiff, or that the defendant has made out a legitimate excuse. The party who demurs, demoratur, rests or abides upon the point in question. The form is by averring the declaration or plea, the replication or rejoinder, to be insufficient in law to maintain the action or defense; and, therefore, praying judgment for want of sufficient matter alleged. A demurrer in equity is nearly of the same nature as a demurrer in law, being an appeal to the judgment of the court whether the defendant shall be bound to answer the plaintiffs bill; as, for want of sufficient matter of equity therein contained; or where the plaintiff, upon his own showing, appears to have no right; or where the bill seeks discovery of a thing which may cause a forfeiture of any kind, or may convict a man of criminal misbehavior. If the defendant prevails the plaintiff’s bill is dismissed; if the demurrer is overruled the defendant is ordered to answer. Demurring is incident to criminal cases when the fact alleged is admitted to be true but the prisoner joins issue upon a point of law in the indictment, by which he insists that the fact as stated is not the crime it is alleged to be. . Since the same advantage may be had upon a plea of not guilty, or by arrest of judgment when the verdict has established the fact, demurrers to indictments are seldom used. General demurrer. An exception in general terms to the sufficiency of a pleading as a whole. Special demurrer. Alleges a particular material imperfection. In a general demurrer at law no particular cause of exception is alleged; in a special demurrer the particular imperfection is pointed out and insisted upon. In equity practice the formula for a general demurrer is that there is no equity in the bill; in the case of a special demurrer the particular defect or objection is pointed out. A general demurrer lies for deffects of substance; a special demurrer lies for defects of form, and addsto the terms of the former a specification of the particular ground of exception. Thus, alleging a defective title is a fault in substance for which the party may demur generally; but if a title be defectively stated it is a fault inform which must be specifically assigned for cause of demurrer. Under statutes of 27 Eliz. (1585), c. 5, aud 4 and 5 Anne (1706), c. 16, unless imperfections, omissions, defects, and other matters of like nature be specifically and particularly set down and shown for cause of demurrer, the court gives judgment according to the very right of the cause without regarding the imperfections, omissions, etc. Where the objection is to the substance of the allegation, a general demurrer is sufficient; where to a defect in form, a special demmter is indispensable. But neither demurrer is good unless the objections are apparent upon the face of the bill, from matter inserted or omitted, or from defects in the frame or form .of the pleading., A demurrer admits juriadiotion and such matters of fact as are relevant and well-pleaded; but not conclusions of law drawn from the facts, nor matters of inference or argument. Upon either a general or a special demurrer the opposite party must aver the matter or the form to be sufficient, which is called a “joinder in demurrer,” and then the parties ai’e at issue – which the court must determine. In England special demurrers were abolished by the procedure act of 1852, s. 51. A party may both demur and plead. By pleading over, the right to demm- may be waived. The right to amend, after a demurrer has been sustained, is discretionary with the court. A demurrer cannot be good in part and bad in part; it must be sustained or fail to the whole extent to which it is interposed. The court decides for the party who, on the whole, seems best entitled to a judgment. The judgment is as conclusive as a, verdict. That a demurrer was made caimot be used as an admission of a fact. Propositions deducible from the authorities are: (1) A judgment rendered upon a demurrer to a declaration or other material pleading setting forth the facts is as conclusive of matters admitted as a verdict would be, since the facts are established in the former case, as in the latter, by matter of record; and the rule is that facts thus established can never afterward be contested between the same parties or those in privity with them. (2) If judgmeut is rendered for the defendant, the plaintiff can never afterward maintain against him or his privies any similar action for the same cause upon the grounds disclosed in the declaration: the judgment determines the merits of the cause; a final judgment determining the right ends a dispute, else b’tigation would be endless.0 A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action is equivalent to a general demurrer to a declaration at common law, and raises an is-sue which, when tried, will finally dispose of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is the trial of the cause as a cause, not the settlement of a mere matter of form in proceeding. There can be no other trial except at the discretion of the court.1 Where the demurrer goes to the form of the action, to a defect in pleading, or to the jurisdiction of the court, the judgment will not preclude future litigation on the merits of the controversy in a court of competent jurisdiction upon proper pleadings; and where it goes both to defects of form and to the merits a judgment not distinguishing between the two grounds may be presumed to rest on the former. But where the demurrer is to a pleading setting forth distinctly specific facts touching the merits of the action or defense, and final judgment is rendered thereon, it woidd be difficult to find any reason in principle why the facts admitted should not be considered for all purposes as fully established as if found by a jury or admitted in open court. If the party against whom a ruling is made wishes to avoid the effect of the demurrer as an admission of the facts he should seek to amend his pleading or answer, as the case may be. Leave for that purpose will seldom be refused upon a statement that he can controvert the facts by evidence. If he does not ask permission the inference may justly be drawn that he is luiable to produce the evidence, and that the fact is as alleged in the pleading. Speaking demurrer. A demurrer which introduces some fact or averment, necessary to support it, not appearing distinctly upon the face of the bill. Demurrer to evidence. When a record or other matter is produced as evidence, concerning the legal effect of which there arises a doubt, and the adverse party demurs to the same as evidence. A proceeding by which the court is called upon to say what the law is upon the facts shown in evidence. The demurrant admits the truth of the testimony, and such conclusions as a jury may fairly draw; but not forced and violent inferences. The testimony is to be taken most strongly against him, and such conclusions as a jury may justifiably draw the court ought to draw. A demurrer to plaintiff’s evidence admits the facts the evidence tends to prove. The court is to make every inference of fact in favor of the plaintiff which a jury might infer. If, then, the evidence is insufficient to support a verdict in his favor, the demurrer should be sustained. See Nonsuit.Demurrer to interrogatory. The reason a witness offers for not answering a particular question among interrogatories.

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Notes and References

1. Concept of Demurrer provided by the Anderson Dictionary of Law (1889)