demurrer
n . 妨诉抗辩,抗辩,异议
妨诉抗辩,抗辩,异议
demurrer n 1 : (
law )
a formal objection to an opponent '
s pleadings [
synonym :
{
demur }, {
demurral }, {
demurrer }]
2 : (
law )
any pleading that attacks the legal sufficiency of the opponent '
s pleadings 3 :
a defendant '
s answer or plea denying the truth of the charges against him ; "
he gave evidence for the defense " [
synonym :
{
defense }, {
defence }, {
denial }, {
demurrer }] [
ant : {
criminal prosecution }, {
prosecution }]
Demurrer \
De *
mur "
rer \,
n .
1 .
One who demurs .
[
1913 Webster ]
2 . (
Law )
A stop or pause by a party to an action ,
for the judgment of the court on the question ,
whether ,
assuming the truth of the matter alleged by the opposite party ,
it is sufficient in law to sustain the action or defense ,
and hence whether the party resting is bound to answer or proceed further .
[
1913 Webster ]
{
Demurrer to evidence },
an exception taken by a party to the evidence offered by the opposite party ,
and an objecting to proceed further ,
on the allegation that such evidence is not sufficient in law to maintain the issue ,
and a reference to the court to determine the point . --
Bouvier .
[
1913 Webster ]
65 Moby Thesaurus words for "
demurrer ":
answer ,
apostate ,
argument ,
beef ,
bitch ,
boycott ,
challenge ,
complaint ,
compunction ,
counterstatement ,
defense ,
demonstration ,
demur ,
demurral ,
denial ,
difficulty ,
dissenter ,
dissentient ,
dissident ,
exception ,
expostulation ,
grievance ,
grievance committee ,
howl ,
indignation meeting ,
kick ,
march ,
nonconformist ,
nonviolent protest ,
objection ,
objector ,
opinionist ,
opposition voice ,
picketing ,
plea ,
pleading ,
pleadings ,
protest ,
protest demonstration ,
protestant ,
protestation ,
protester ,
qualm ,
question ,
rally ,
rebuttal ,
recusant ,
refutation ,
remonstrance ,
remonstration ,
reply ,
response ,
riposte ,
schismatic ,
scruple ,
sectarian ,
sectary ,
separatist ,
sit -
in ,
special demurrer ,
special pleading ,
squawk ,
statement of defense ,
strike ,
teach -
in DEMURRER . (
From the Latin demorari ,
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 .
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 artificial 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 interrogatories .
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 particular 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 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 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 ,
Sec .
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 .
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