A demurrer does not reach vagueness and uncertainty in a complaint, but they must be remedied by a motion to make more spe cific and certain; Sheeks v. Erwin, 130 Ind. 31, 29 N. E. 11; Sluyter v. Ins. Co., 3 Ind. App. 312, 29 N. E. 608; Chamberlain v. Men sing, 51 Fed. 669.
Where the want of jurisdiction in a fed eral court is apparent on the face of the petition, declaration or complaint, it may be taken advantage of by demurrer; Southern P. Co. v. Denton, 146 U. S. 202, 13 Sup. Ct. 44, 36 L. Ed. 942; Hagstoz v. Ins. Co., 179 Fed. 569; and the same is true of the statute of limitations; Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807; Kendall v. U. S., 107 U. S. 123, 2 Sup. Ct. 277, 27 L. Ed. 437.
For the various and numerous causes of demurrer, reference must be had to the law of each state.
As to the effect of a demurrer. It admits all such matters of fact as are sufficiently pleaded ; Com. Dig. Pleader (A 5); Jones v. Ireland, 4 Ia. 63 ; Roberts v. State, 14 Ga. 8, 58 Am. Dec. 528 ; Pierson v. Wallace, 7 Ark. 282; Soule v. Seattle, • 6 Wash. 315, 33 Pac. 384, 1080; Jorgensen v. Ministers of Chureh, 7 Misc. 1, 27 N. Y. Supp. 318. Its office was to test the sufficiency of the preceding plead ing both as to form and substance, and it was resorted to by either party who believed that the pleading of the other party was in sufficient either because the declaration did not show a good cause of action or the plea did not set up a legal defence; but it does not admit mere epithets charging fraud and allegations of legal conclusions ; Kent v. R. & I. Co., 144 U. S. 75, 12 Sup. Ct. 650, 36 L. Ed. 352; nor an erroneous averment of law ; Dickerson v. Winslow, 97 Ala. 491, 11 South. 918.
The demurrer reaches back to the first error in the pleading; Terry v. Tubman, 92 U. S. 156, 23 L. Ed. 537; but not where the defect is of form and not of substance; Bal timore & 0. R. Co. v. Harris, 12 Wall. (U. S.) 65, 20 Ed. 354. On demurrer the court consider the record, and give judg ment according to the legal right for the party who on the whole seems best entitled to it ; 4 East 502; Pickett v. Bank, 8 Ark. 224; Wales v. Lyon, 2 Mich. 276; Townsend v. Jemison, 7 How. (U. S.) 706, 12 L. Ed. 880 ; Shaw v. White, 28 Ala. 637; Claggett v. Simes, 31 N. H. 22 ; Freeman v. Freeman,
39 Me. 426 ; Peoria & 0. R. Co. v. Neill, 16 Ill. 269. 'For example, on a demurrer to the replication, if the court think the replica tion bad, but perceive substantial fault in the plea, they will give judgment, not for the defendant, but for the plaintiff ; 2 Wils. 150; Townsend v. Jemison, 7 How. (U. S.) 706, 12 L. Ed. 880; 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 Co. 29 a. The court will not look back into the record to adjudge in favor of an appar ent right in the plaintiff, unless the plaintiff have, himself put his action upon that ground ; 5 B. & Ald. 507. If, however, the plaintiff demur to a plea in abatement, and the court decide against the plea, they will give judgment of respondeat ouster, with out regard to any defect in the declaration ; Carth. 172 ; Ellis v. Ellis, 4 R. I. 110 ; Knott v. Clements, 13 Ark. 335 ; Ryan v. May, 14 Ill. 49. A party waives his demurrer by not calling for action thereon ; Phcenix Ins. Co. v. Boren, 83 Tex. 97, 18 S. W. 484.
In Practice. Demurrer upon evidence is a declaration that the party making it, gener ally the defendant, will not proceed, because the evidence offered on the other side is not sufficient to maintain the issue; Shaw v. White, 28 Ala. 637.
It is said that, although generally super seded by motion for nonsuit, binding instruc tions, or to exclude the evidence from the jury, the practice is recognized "in nearly half the states" in civil cases; 15 H. L. Rev. 738. Nevertheless, the proceeding is so hedg ed about with technicalities that it is infre quently resorted to and when invoked has been the subject of the continuing disap proval of the courts ever since it was said by Chief Justice Tilghman that "he who de murs to parol evidence engages in an uphill business"; Dickey v. Schreider, 3 S. & R. (Pa.) 416; and Emery, J., characterized it as "unusual and antiquated practice"; State v. Soper, 16 Me. 293, 33 Am. •Dec. 665. In 1859 it had long been out of use in New York and refusal to allow it was not cause of ex ception ; Colegrove v. R. Co., 20 N. Y. 492, 75 Am. Dec. 418.