DEMURRER (Lat. demorari, Old Fr. de morrer, to stay ; to abide). In Pleading. An allegation, that, admitting the facts of the preceding pleading to be true, as stated by the party making it, he has yet shown no cause why the party demurring should be compelled by the court to proceed further. A declaration that the party demurring will go no further, because the other has shown nothing against him. 5 Mod. 232; Co. Litt. 71 b. It imports that the objecting party will not proceed, but will wait the judgment of the court whether he is bound so to do. Co. Litt. 71 b; Steph. Pl. 61; Pepper, Pl. 11.
In Equity. An allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows that as therein set forth they are .insufficient for the plain tiff to proceed upon, or to oblige the defend ant to answer ; or that, for some reason ap parent on the face of the bill, or on account of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, the defendant ought not to be com pelled to answer to the whole bill, or to some certain part thereof. Mitf. Eq. Pl. 107.
A demurrer was said to be an answer in law to a bill, though not technically an an swer in the common language of practice New Jersey v. New York, 6 Pet. (U. S.) 323, 8 L. Ed. 414. The purpose of a demurrer being to raise the question whether the case presented by the bill would, if proved, en title the plaintiff to the relief sought, it nec essarily proceeds upon the theory that the truth of the bill is admitted. It is therefore settled that all facts well pleaded in the bill, but no others, are taken to be true, for the purposes of the argument and decision upon the demurrer ; Commercial Bank v. Buck ner, 20 How. (U. S.) 108, 15 L. Ed. 862; Griff Ing v. Gibb, 2 Black (U. S.) 519, 17 L. Ed. 353; Goble v. Andruss, 2 N. J. Eq. 66 ; 1 Ves. Jr. 72; 1 Dan. Ch. Pr. 545. It does not admit conclusions of law stated in the bill; Bryan v. Spruill, 57 N. C. 2,7; Fogg v. Blair, 139 U. S. 118, 11 Sup. Ct. 476, 35 L. Ed. 104; nor can it supply defects in sub itance, nor cure a defective title, nor yet establish one defectively set forth ; Mills v. Brown, 2 Scam. (Ill.) 549 ; nor does it admit any allegations repugnant to facts of which the court takes judicial notice ; 1 Dan. Ch.
Pr. 546 ; nor a fact manifestly or legally im possible ; Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 3 Sup. Ct. 193, 27 L. Ed. 922 ; nor an averment contrary to the facts set forth in the bill ; 3 Ves. 4 ; Redmond v. Dickerson, 9 N. J. Eq. 507, 59 Am. Dec. 418 ; nor inferences of other facts from those stat ed ; Dike v. Greene, 4 R. I. 285 ; nor the construction of a statute; Pennie v. Reis, 132 U. S. 464, 10 Sup. Ct. 149, 33 L. Ed. 426 ; nor of any instrument set forth in or an nexed to the bill ; Dillon v. Barnard, 21 Wall. (U. S.) 430, 22 L. Ed. 673; Interstate Land Co. v. Land Grant Co., 139 U. S. 569, 11 Sup. Ct. 656, 35 L. Ed. 278 ; Lea v. Robeson, 12 Gray (Mass.) 280 ; Dillon v. Barnard, 1 Holmes 389, Fed. Cas. No. 3,915 ; U. S. v. Ames, 99 U. S. 35, 25 L. Ed. 295. It admits only facts well pleaded, but not the conclu sions of law, nor the correctness of the plead er's opinion as to future results ; Equitable Life Assur. Soc. v. Brown, 213 U. S. 26, 29 Sup. Ct. 404, 53 L. Ed. 682 ; as a rule of evidence it was never supposed that a de murrer admitted anything; Havens v. R. Co., 28 Conn. 69.
As a rule these limitations upon the effect of a demurrer in equity, as admissions, apply equally at law.
Allegations on information and belief are not admitted by a demurrer to be facts ; Trim ble v. Sugar Refining Co., 61 N. J. Eq. 340, 48 Atl. 912 ; 1 Ves. 56; 5 Beay. 620 ; Sto. Eq. Pl. §§ 241, 256 ; Cameron v. Abbott, 30 Ala. 416; but in a subsequent case it was held that, although the averment that complain ant is informed and believes that the fact exists is insufficient, he may state the exist ence of the fact with the additional words "as he is informed and believes" ; Lhcas v. Oliver, 34 Ala. 626; and see also Christian v. Mortgage Co., 92 Ala. 130, 9 South. 219 and Drennen v. Deposit Co., 115 Ala. 592, 23 South. 164, 39 L. R. A. 623, 67 Am. St. Rep. 72. An allegation that the complainant "is informed and believes, and therefore avers," is sufficient ; Wells v. Hydraulic Co., 30 Conn. 316, 79 Am. Dec. 250; and so is an al legation that he is informed and believes the fact to be true, followed by a statement that he therefore charges the fact to be true, where it related to matter necessarily 'with in the knowledge of the defendant ; Campbell v. R. Co., 71 III. 611.