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16. See Gould, A ‘Treatise on the Principles of Plead­ing Pt. III, Of Pleading, 340 (6th Cd. by Will, Albany 1909).

the Demurrant must be careful not to make his Demurrer too large, and not to violate the Rule against Pleading and Demurring at the Same Time to the Same Matter.
ThE Demurrer may be used as an offen­sive instrument for an attack upon an Ad­versary’s Pleading. And such attack may be directed at the whole of the Plaintiff’s Cause

of Action or the Defendant’s Defense, as the case may be, or to a Part Only. In making such a use of the Demurrer, a defendant, in Demurring to a Declaration in its Entirety, must be certain that his Demurrer is not too large.’7 Thus, for example, in Cochran v. Scott,” the plaintiff Declared as the indorsee of a Promissory Note, payable to the Law­rence Power Company, Alleging an indorse­ment by the company, without setting forth the names of the members of the firm; he also Declared on several Money Counts; the defendant Demurred to the Whole Declara­tion, Assigning Special Cause for only One Count, and None for the others; and the Court gave Judgment for the plaintiff. Where a Declaration contains Several Counts or Statements of Causes of Action, some good in both Form and Substance, and some De­fective, the defendant should Demur only to the Defective Counts, as Judgment will be given against him on an exception to the whole declaration, separate and divisible parts of it being good?9 A Demurrer may sometimes be taken to part of a single Count or Plea, where the matters alleged are dis­tinct and divisible in their nature.9°
It Powdiek v. Lyon, 11 East 565, 103 EngRep. 1123 (1809).
18. 3 wead. (N.Y.) 229 (1829). See, also, the follow­ing eases: Illinois: Nash v. Nash, 16 In. 79 (1854);

New York: hlumford v. Pitzhugh, 18 Johns. (N.Y.)

457 (1821). And, see, North Carolina: Conant v.

Barnard, 103 N.e. 31Z, 9 SE. 575 (1889).


On Demurrer to Fart of a Pleading, or to a Pleadilig Good in Part, see Decen]lial Digests, Pleading 204.
19. English: Powdiek v. Lyon, 11 East 565, 103 Bug. lIen. 1128 (IS®); New York, DougIaes v. satterl&e. 11 Johns. (N.Y.) 18 (1814).

CO. Douglass v. Satterlee, 11 Johns. (N.Y.) 16 (1814).



Sec. 198

THE DEMURRER

389


But a plaintiff’s Demurrer to Several De­fenses, some good in Form and Substance and some bad in either Form or Substance, should not be too large, as a defendant needs but one Defense to win. Thus, in Mayor,~ etc. oJ Newark v. Dickerson, et al.,’~ where the plaintiff Declared in Debt against a Surety on a Bond, to which the defendant interposed ten Pleas, and the plaintiff filed a single De­murrer to three of the Pleas, one of which was good in Substance, whereas the others were bad, the Court, through Dixon, J., said:

If any of the Pleas Demurred to presents a good Defence, the defendant is entitled to Judgment.” 22


Whether the Demurrer is used as an of­fensive or Defensive Weapon, the Pleader should be careful not to Plead and Demur at the Same Time to the Same Matter, as such a course of procedure would violate a funda­mental Theory of Common-Law Pleading that you cannot create an Issue of Law and an Issue of Fact simultaneously on the Same Matter,
GENERAL AND SPECIAL DEMURRERS AND DEFECTS AVAILABLE

THEREUNDER

198. There are two Kinds of Demurrer; they are:

(I) General, and

(2) Special.

A General Demurrer is one which Excepts to the sufficiency of the Opposing Pleading in General Terms, without Specifically disclos­ing the Nature of the Objection. In general, a General Demurrer reaches Defects in Sub­stance.

A Special Demurrer takes Exception to the sufficiency of the Adverse Pleading by showing Specifically the Particular Defects in Form which are the basis of such Exception. It is necessary where the Objection turns on Matter of Form only. In general, a Special Demurrer reaches Defects in Form which are specified in the Demurrer, and also reaches Defects in Substance.

21. 45 N.J.L. 38 (1883).
22. 14. at 30.

FORM OF GENERAL DEMURRER TO


THE DECLARATION

(For Matter of Substance)

(In Debt)

IN THE RING’S BENCH

Term, in the year of the reign of King George the Fourth.

Clyde Dowell


ats.

Arthur Brown

AND the said Clyde Dowell, by William Jones, his attorney, comes and defends the wrong and injury, when, etc.; and says that the said declaration and the matters therein contained, in manner and form as the same are above stated and set forth, are not suffi­cient in law for the said Arthur Brown to have or maintain his aforesaid action against him, the said Clyde Dowell; and that he, the said Clyde Dowell, is not bound by the law of the land to answer the same. And this he is ready to verify. Wherefore, for want of a sufficient declaration in this behalf, the said Clyde Dowell prays judgment, and that the said Arthur Brown may be barred from having or maintaining his aforesaid action against him, etc.
William Jones
Attorney for Defendant

STEPHEN, Principles of Pleading in Civil Actions, c. I, 82 (3d Am. Ed. by Tyler, Wash­ington, D. C. 1892).


FORM OF SPECIAL DEMURRER TO TIlE DECLARATION

(For Matter of Form)

(In Debt)

IN THE KING’S BENCH



Term, in the year of the

reign of King George the Fourth.


Clyde Dowell

ats.


Arthur Brown

399


DEFENSIVE PLEADINGS

Ch. 20

AND the said Clyde Dowell, by William

Jones, his attorney, comes and defends the wrong and injury, when, etc.; and says that the said declaration and the matters therein contained, in manner and form as the same are above stated and set forth, are not suffi­cient in law for the said Arthur Brown to have or maintain his aforesaid action against the said Clyde Dowell; and that he, the said Clyde Dowell, is not boi.md by the law of the land to answer the same. And this he is ready to verify. Wherefore, for want of a sufficient declaration in this behalf, the said Clyde Dowell prays judgment, and that the said Arthur Brown may be barred from having or maintaining his aforesaid action against him, etc. And the said Clyde Dowel!, according to the form of the statute in suck case made and provided, states and shows to the court here the following causes of de­murrer to the said declaration; that is to say, that no day or time is alleged in the said declaration at which the said causes of action, or any of them, are supposed to have accrued. And also that the said decla­ration is in other respects uncertain, in for­mal and insufficient.23


William Jones

Attorney for Defendant


STEPHEN, Principles of Pleading in Civil Actions, c. I, 83 (3d Am. Ed. by Tyler, Wash­1ngton, D. C. 1892).
FORM OF JOINDER IN DEMURRER 24 tN THE KING’S BENCH
Term, in the year of the

reign of King George the Fourth.

Arthur Brown

V.
Clyde Dowell

}

t3. The Italics are the author’s.



24. A Party could not decline a Question on the Le­gal Sufficiency of his own Pleading without aban­doning it. The acceptance was therefore as i!npera­tive as in the case of an Issue of Fact, and this end

AND the said Arthur Brown says, that the said declaration and the matters therein con­tained, in manner and form as the same are above pleaded and set forth, are sufficient in law for him, the said Arthur Brown, to have and maintain his aforesaid action against him, the said Clyde Dowell; and the said Arthur Brown is ready to verify and prove the same as the court here shall direct and


was secured by use of a set Form of Words called the “Joinder iii Demurrer.” With respect to Issues in Law Tendered by Demurrer, it Was imu,aterial whether the Issue was Well or ill-tendered, that is, whether the Demurrer was in Proper Form or not. In either case the Opposite Party was equally bound to Join in Demurrer; for it was a Rule that there could be No Demurrer upon a Demurrer; and there ~vas no ground for a Traverse or Pleading in Con­fession and Avoidance, while the Pleading to which the Demurrer was taken still remained unanswered.
For the Common-Law Rule, see Campbell v. St. John, 1 8all~. 219, 91 Engncp. 194 (1693).
For the Code Rule that no Formal Joinder in Dc­n,urrer is required, see Conu.Prac.Ili-.., 102, p. 10 (1934).
Where an Issue in Law was Tendered by Demur­rer, the opposing Party was required to oin it.

English: Haiton v. Jeftreys, 10 Mod. 280, 88 Rug.

Rep, 728 (1715); Illinois: Clay Fire & Marine ins.

Co. -q. Wusterhausen, 75 III. 285 (1874); Maryland:

Brown v. Jones, 10 Gill & J. (Md.) 334 (1830).
“Supposing the Cause to be At lame, the neut pro­ceeding is to make a transcript upon paper of the Whole Pleadings that have been filed or delivered between the Parties. This transcript, when the Is­sue Joined is an Issue of Law, is called the Demur­rer-Book; when an Issue of Fact, it is called, in the Ring’s Bench, in some cases, the Issue, in others the Pape,--Book, and in the Common Pleas Ike Issue. It contains not only the Pleadings, but also Entries, according to the Ancient Forms used in Recording, of the Appearance of the Parties, the Continuances, and other Acts supposed to be done in Court up to the Period of Issue Joined, even though such En­tries have not formed part of the Pleadings as filed or delivered; and it concludes with an Entry of an Award by the Court of the Mode of Decision Ten­dered and Accepted by the Pleadings. The making of this transcript upon an Issue in Law is called making up the Demurrer-Book-; upon an Issue in Fact, making up t7ie flsue or Paper-Book.” Stephen, A treatise on the Principles of Pleading in Civil Actions, c, I, Of the Proceedings in an Action. from its Conlnteuccment to Its Termination, 108 (34 Am. ed. by Tyler, Washington, D. C. 1892).

Sec. 198

THE DEMURRER

391

award. Wherefore, inasmuch as the said Clyde Doweil bath not answered the said dec­laration, nor hitherto in any manner denied the same, the said Arthur Brown prays judg­ment, and his debt aforesaid, together with his damages by him sustained by reason of the detention thereof, to be adjudged to him,


STEPHEN, Principles of Pleading in Civil Actions, c. I, 92 (3d Am. Ed. by Tyler, Wash­ington, D. C. 1892).
The General and Special Demurrer Under the Regime of Oral Pleading

PRIOR to the Statute of Elizabeth (1585) ~25 cited or described in the books as the Statute of Demurrers, and an important Statute of Jeofails,2° there were Two Kinds of Demurrer, the General Demurrer and the Special. According to the case, Anony­mous,27 decided in 1704, and in which the opinion rendered was by Chief Justice Holt of the Court of King’s Bench, upon a General Demurrer, a Party might take advantage of all Types of Defects, Formal or Substantive,28


25. 27 Bus. c. 5, 6 Statutes at Large 360.
26. The word “Jeofails” means, I have failed; I am in error- Certain Statutes in English Law are re­ferred to as Statutes of Amendment and Jeofails, because where a Pleader perceives any slip in the Form of his Proceedings, and acknowledges the er­ror (jeofails) he is at liberty by those Statutes to Amend it.
For a complete list of the Statutes, the earliest of which was enacted in 1340, 14 Edw. III, e. 6, 1 Stat­utes at Large 474, see article by Reppy, The Hilary Rules and Their Effect on Negative and Affirmative Pleas Under Modem Codes and Practice Acts, C N.Y.tLL,Rev. 95, 100, n. 19 (1929).
For a partial list of these Statutes, see, also, 1 Tidd,

The Practice of the Court of King’s Bench, e. XXX,

647-664 (1st Aimed., Philadelphia 1807); Clark &

Yerion, Aider and Amendment, 12 Minn.L.Rev. 97,

125 (1928).
And, for a discussion of Amendments and Jeofalls, see Scott, Fundamentals of Procedure in Actions at Law, e. V. Amendments and Jeof ails, 143 (New York 1922).
27. 3 Salk. 122, 91 Eng.flep. 729 (1704).

that of Duplicity only excepted, and without the Assignment of Any Cause for Demurrer. Upon a Special Demurrer, so called because it Assigned a Specific Cause of Demurrer, Ordinary Formal Defects were available as on a General Demurrer. As these Ordinary Formal Defects were reached by a General Demurrer, without the necessity of specif i­cally pointing them out as was required in a Special Demurrer, the Latter Form of De­murrer was never necessary, except in a case involving Duplicity.29 In such case it was not sufficient to say that the Pleading was Dou­ble, or contained Two Matters, but the Party Demurring was required to show of what the Duplicity consisted.3° Perhaps the reason for this Exception may be discovered in the peculiarity of this Specific Defect. Techni­cally, Duplicity constituted neither a Formal nor a Substantive Defect, that is, it was not a Substantive Defect, because not too few, but rather too many Facts had been alleged; and it was not a Defect in Form, for what was al­leged had been stated without violation of a Rule of Pleading, hence the Only Defect pres­ent—the statement of Superfluous Facts— was held to be available only on Special De­murrer.


What the Statute of Elizabeth Provided
WHAT did the Statute of Elizabeth provide and what was the effect of such provision?
29- Ibid.
Duplicity in the Declaration was a common Ground for Special Demurrer at Common Law. Handy v. Chatfield, 23 Wend. (N.Y.) 35 (1840). But for the attitude of the courts of today on Duplicity, see Oklahoma Gas & Electric Co. v. Bates Expanded Steel Truss Co., 11 P.24 415 (19213). And in Eng­land, under the influence of the Common Law l’r’o­eedure Act, 1552 (15 & 16 viet. C. 76, § 51), which provided that “No Pleading shall be deemed insuf­ficient for any Defect which could heretofore o,,ly be objected to by Special Demurrer,” Duplicity, along with other Formal Defects, ceased to be available on Demurrer. The remedy Is now by Mo­tion.
30. Lamplougli v. Shortridge, I Salk, 219, 91 Eng.Rep

195 (1701).

28. 11)14.

392


DEFENSIVE PLEADINGS

Ch. 20

It provided that upon Demurrer Joined and Entered in any Action or Suit in any Court, the Judges should give Judgment “according as the Very Right 0/the Cause and Matter in Law shall appear unto them” without regard­ng any Defect in Form whatsoever, “except those only which the Party Demurring shalt Specially and Particularly set down and ex­press together with his Demurrer!’


What, in plain English, does this mean? The phrase, “according as the Very Right of the Cause and Matter in Law shall appear unto them” translated into plain English, means that the Judges thereafter shall decide the Cases on the Merits, and in complete dis­regard of any imperfection, defect or watt of Form in any Pleading, except those only which the Demurring Party specifically points out and sets down “together with his Demurrer.” What Demurrer? Answer, the General Demurrer. A Special Demurrer therefore, under the Statute, is merely a General Demurrer, to which is added a spec­ification or pointing out of some Defect in Form in an Adversary’s Pleading, as indicat­ed by the italicized part of the Form of a Special Demurrer set out above. In other words, the Statute provides that Defects in Form are aided or waived unless taken ad­vantage of by Special Demurrer at the next Succeeding Stage in Pleading.
Defects in Form, after the Statute, might, however, still prove fatal, but only if specifi­cally objected to by openly pointing out the defect at the next Stage of Pleading.3’ Thus,
31. “This Statute, by making kuown the Causes of Demurrer, was so far restorntive of the common

Law; and as a General Demurrer before did con­fess all Matters Formaliy Pleaded, so by this Stat­ute, whenever the right sufficiently appeared to the Court, it confessed all Matters, though Pleaded in­formally.” 8 Tidd, The Practice of the Court of King’s Bench, c. XXX, 649 (1st. Sin. ed., Philn­delphia 1807).


See, also, English: ICing v. Botham, Freem. 38, 89 Eng.Bep. 31 (1672); Illinois: Cook v. Scott, 1 Gil-man (Th.) 333 (1844); Gordon v. Bankard, 37 Iii. 147 (1863); Cover v. Armstrong, 66 Ill. 267 (1872); Mas­

in the famous case of Heard v. Baskervile,~ decided in 1614, or only twenty-nine years after the Enactment of the Statute, the Court concluded, upon finding a Defect in a Plead­ing to be a Matter of Form, that the Defect could not be taken advantage of upon Gen­eral Demurrer, as “a General Demurrer doth confess all matters pleaded”, though not pleaded in proper form. A General Demur­rer, therefore, automatically waives all De­fects in Form, except in the case of a General Demurrer to a Plea in Abatement,33
What the Statute of Anne Provided

THE Kinds and Forms of Deinurrers after 1705 remained substantially the same, except for a slight alteration in the Scope of the Special Demurrer. The Statute of Anne (1705), was merely a Reenactment of the Statute of Elizabeth (1585), almost word for word, with a proviso that “sufficient Matter appear in the said Pleadings, upon which the Court may give Judgment according to the Very RAght of the Cause,”34 plus an enumera­tion of Certain Defects, which upon the con­struction of the Prior Statute, had been held to be Substantial, but which were now to be held Formal, and hence Aided upon General Demurrer, the conservative views of the Judges to the contrary notwithstanding. As Could ~ has so accurately stated, the Statute


saclmsetts: Steffe v. Old Colony B. Cc., 156 Mass. 262, 30 N.E. 1137 (1892); Vermont: willey v. Car­1)enter, 64 Vt. 212, 23 AtI. 630, 15 LIlA. 853 (1892).
32. I-lob, 232, 80 Eng.llcp. 878 (1614).
~3. The early English ease on this point is Walden

V. I-Iolmau, 2 Ld.flaym. 1015, 92 Eng.Itep. 173 (1704).
34. 11 Statutes at Large 155, c, 10, § I (1703).
33. A Treatise on the Principles of Pleading, Pt. Ill,

e. IV, Of Demurrer, 576, 577 (6th ed. by Will,

Albany 1909).

The Statute of Elizabeth, 27 Elm. e. 5, 1 (1585) and the Statute of 4 Anne, c. 16, § 4 (1705) are applica­ble only In Civil Actions, being confined to proceed­ings in an “Action or Suit” The former Statute is, by express proviso, not extended to criminal pro­ceedings. In Indictments, therefore, Formal De­fects are still available on General Demurrer as at Common Law. A proviso In the Statute of Anne

394

DEFENSIVE PLEADINGS

Ch. 20

plaintiff failed to allege the writing, this was held to be a Defect available on Demurrer.43



Exception to the General Rule as to Defects Available upon a General Demurrer

WHILE the General Rule is that upon a General Demurrer only Defects in Substance are available, there is an exception to the rule where the plaintiff files a General De­murrer to a Plea in Abatement Defective in Form.4’ In Humphrey v. Whitten,~ where the plaintiff brought Ti-over against the de­fendant in the name of James Humplvreys, the defendant Pleaded that he was and “always had been known by the name of James Humphrey, and not James Humphreys, as by the plaintiff’s Writ supposed, to which Plea the plaintiff Demurred Generally. Since the defendant’s Plea contained New Matter, in order to be in Proper Form, it should have concluded with a Verification, which it did not contain. There was therefore a question as to whether a Defect in Form in a Plea in Abatement could be reached by a General De­murrer after the Statute of Elizabeth and the Statute of Anne. In reviewing the Common Law, the Court concluded that the General Demurrer reached the Defect in Form—the failure to have a Verification—in the Plea in Abatement. Why? Because, at Common Law, prior to the Statute, a General Demur­rer reached both Defects in Form and De­fects in Substance in a Pleading to which it was interposed, and since the Statute of Elizabeth and the Statute of Anne only ap­plied to Pleas in Bar, the Original Common Law as to the Scope of a General Demurrer to a Plea in Abatement was not changed, and therefore, as a General Demurrer reached a Defect in Form in a Plea in Abatement be­fore 1585, it still reached it after 1585, the



43. Anonymous, 2 Salk 510, 01 Eng.Rep. 442 (1701);

Duppa v. Mayo, I Wms.Sauml. 275, 276 note 2, 85 Eng.Rep. 336, 342 note 2 (1670).



44. fluniplirey V. Whitten. 17 Ala. 30 (1949).

Common-Law Rule not having been dis­turbed, Thus, the Exception to the General Rule that in order to reach a Defect in Form in a Pleading after the Statute of Demurrers, you must Demur Specially.46



The General Rule as to Defects Available Upon a Special Demt~rrer After the Stat­ute of Elizabet!v (1585) and the Statute of Anne (1705)

THE General Rule was that upon a Special Demurrer any Defect in Form, as created by a Violation of a Rule of Pleading as to the Manner and Form in which a Substantive Al­legation should be Averred, was available, if the Cause of Demurrer was Specifically As­signed. Thus, for example, Uncertainty of Allegation, Improper Ending of a Plea, Joinder of Several Causes of Action in a single Count, or any other Violation of a Rule of Pleading, constitutes a Defect in Form.

In addition, as observed above, as a Special Demurrer is, under the Statute of Elizabeth (1585), merely a General Demurrer to which has been added a specification of some De­fect in Form in the Adversary’s Pleading, Defects in Substance were also reached by a Special Demurrer.

The Defect of Duplicity

PRIOR to the Statute of Elizabeth (1585), the Defect of Duplicity (which was neither a Formal nor a Substantive Defect) was, as a



46. Shaw v. Duteher, 19 Wend. (N.Y.) 216, 222, 228 (1838), in which Co~ven, 3., declared: “Testing the Plea below by these Rules, it is fatally defective. It begins and concludes by praying Judgment of the Said Bill, I Incline to think that this was a Defect of Substance; but if of Form only, being in Abatement, the Defect need not be assigned specially, such Is the construction of the English Statutes of Special Deniurrers, 27 EIiz., e. V, & 4 Anne, c, 16, and ours is but an epitome of those Acts. 2 ItS. 276, 2d ccl. The English authorities to this point will be found in I chitty. Pleading, 404; Walden V. flolman, 2 DdJtaym. 1015; per Bayley, 3., in Lloyd v, Williams, 2 Maule & Selw. 484, 5. Walden v. Holinan, Is in point.”

4~. 17 Ala. 30 (1849).



Ch. 20

Sec. 198


THE DEMURRER

393

of Anne (1705) was enacted “partly in ex­planation and partly in extension of the heal­ing operation of the Former Act—and also expressly specifying a variety of Particular Defects, which, though before deemed Sub­stantial, are, by this latter Act, virtually converted into Matters of Form md thus Aided on General Demurrer. The Statute of Elizabeth, then, requires Demurrers to be Special, for Formal Defects, in general; and that of Anne, after Reenacting the same general provision, extends, or applies it to certain Particular Defects, expressly named in the Act.”



The General Rules as to Defects Available

Upon a General Demurrer After the

Statute of Elizabeth (1585) and the

Statute of Anne (1705)
AFTER the Amendment of the Statute of

Elizabeth (1585) by the Statute of Anne

(1705), the General Rule was that upon a

General Demurrer any Substantive Defect

was available.

Other Defects available upon General De­rnurrer include a Misjoinder of Causes of Action in the same Declaration; ~ Misjoin­der or Nonjoinder of Parties plaintiff or de­fendant, if the Defect is Apparent on the Face of the Pleading; 38 a Variance; or

barred its extension to Actions on Penal Statutes, which are Civil Suits, But this proviso, in the year 1731, was repealed by the Statute of 4 Ceo. IT, C.

26, § 4.

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