AT LAW. 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 objec tion is on matter of substance. Stephen. Plead. 159 ; 1 Chitty, Plead. 639 ; Lawes, Civ. Pl. 167 ; Bacon, Abr. Pleas (N 5) ; Coke, Litt. 72a ; 1 Dutch. N. J. 50G; 11 Ark. 12 ; 2 Iowa, 532 ; 2 Barb. N. Y. 160.
A special demurrer is one which excepts to the sufficiency of the pleadings on the oppo site side, and shows specifically the nature of the objection and the particular ground of exception. Coke, Litt. 72 a; Bacon, Abr. Pleas (N 5).
It is necessary where the objection is to the form, by the statutes 27 Eliz. c. 5 and 4 Anne, c. 16. 18 Ark. 347; 6 Md. 210; 20 Ohio, 100. 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 sub stance.
S. It is not enough that a special demurrer object, in general terms, that the pleading is " uncertain, defective, and informal," or the like, but it is necessary to show in what re spect it is uncertain, defective, and informal. 1 Wms. Saund. 161, n. 1, 337 b, n. 3.; Stephen, Plead. 159, 161; 1 Chitty, Plead. 642.
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 in artificial manner. Rub. 164. It lies to any of the pleadings, except that there may not be a demurrer to a demurrer. Salk. 219; Bacon, Abr. Pleas (N 2). Demurrer may be to the whole or a part of the pleading ; but if to the whole, and a part be good, the de murrer will be overruled. 13, East, 76; 3 Caines, N. Y. 89, 265.; 5 Johns. N. Y. 476; 13 id. 264, 402 ; 4 Den. N. Y. 65 ' • 20 Barb. N. Y. 339 ; 11 Cush. Mass. 348 ; 23 Miss. 548; 28 id. 56 ; 2 Curt. C. C. 97 ; 2 Paine, C. C. 545 ; 14 Ill. 77 ; 2 Md. 284; 1 Wisc. 21. But see 6 Fla. 262; 4 Cal. 327 ; 9 Ind. 241; 6 Gratt. Va. 130; 8 B. Monr. Ky. 400. The objection must appear on the lace of the pleadings, 2 Saund. 364 ; 29 Vt. 354, or upon over of some instrument defectively set forth therein, 2 Saund. 60, n.
For the various astd numerous causes of demurrer, reference must be had to the laws of each state.
9. As to the efeet of a demurrer. It admits all such matters of fact as are sufficiently pleaded. Bacon, Abr. Pleas (N3) ; Comyns, Dig. Pleader (A 5) ; 4 Iowa, 63 ; 14 Ga. 8.;
9 Barb. N. Y. 297 ; 7 Ark. 282. On demurrer the court consider the whole record, and give judgment according to the legal right for the party who on .the whole seems the hest entitled to it. Hob. 56. 4 East, 502 ; 2 Ventr. Ch. 198 ; 8 Ark. 224 ,• 2 Mich. 276 ; 7 How. 706 ; 28 Ala. N. s. 637 ; 31 N. H. 22 ; 39 Me. 426; 16 Ill. 269. For example, on a demur rer 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 Wile. 150; 7 How. 706, provided the do- claration be good ; but if the deciaration also be bad in substance, then, upon the same principle, judgment would be given for the defendant.. 5 Coke, 29 a. 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 Barnew. & Ald. 507. If, how ever, the plaintiff demur to a plea in abate ment, and the court decide against the plea, they will give judgment of respondeat ous te•, without regard to any defect in the de claration. Lutw. 1592, 1667 ; 1 Salk. 212; Carth. 172 ; 4 R. I. 110 ; 13 Ark. 335 ; 14 Ill. 49.
10. In Practice.
Demurrer to evidence is a declaration that the party making it will not proceed, because the evidence offered on the other side is not sufficient to maintain the issue. 28 Ala. N. s. 637. Upon joinder by the opposite party, the jury is generally discharged from giving any verdict, 1 Archbold, Pract. 186; and the demurrer being entered on record is afterwards argued and decided by the court in bane; and the judgment there given upon jt may ultimately be brought before a court of error. See 2 II. Blackst. 187 ; 4 Chitty, Pract. 15 ; Gould, Plead. c. 9, part 2, 47. It admits the truth of the evidence given and the legal deductions therefrom. 14 Penn. St. 275. As to the right so to demur, and the practice, see 4 Iowa, 63.
Demurrer to interrogatories is the reason which a•witness tenders for not answering a particular question in interrogatories. 2 Swanst. Ch. 194. It is not, strictly speaking, a demurrer, except in the popular sense of the word. Greeley, Eq. Ev. 61. The court are judicially to determine its validity. The witness must state his objection very care fully; for these demurrers are held to strict rules, and are, readily, overruled if they cover too much. 2 Atk. 524 ; 1 Younge & J. Exch. 132.
See, generally, as to demurrer, Bouvier, Inst. Index.