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36. “The Defects specifically cnuo,crotej, and cured,

by this latter Statute, are irn,nateriai traverses—the omissioii of profert of Deeds, Sm—or of the words vi ci armis, and contra pacern—.or of a verification per recordicm—or of a prout patet per records,,,..


All these Defects nrc therefore Aided by this Stat­ute, on Demurrer, unless specially assigned for Cause of Demurrer.” Could, A Treatise on the Principles of Pleading, Pt. III, e. Iv, Of Demurrer, 577 (6th ed. by Will, Albany, 1909).

37. Gilmere et a!. v. Christ Hospital & Dickinson, OS N.J.L. 47, 52 A. 241 (1902).
3s. Burgess v. Abbott & Ely, I Hill (N.Y.) 476 (1841).

3°~ Cooke v. Graham’s Adm’r, 3 Craneb (U.S.) 229,

2 L.Ed. 420 (1805).

Allegations in the Disjunctive.48 Ordinarily the Statute of Limitations is not available on Demurrer, as the General Rule is that it is no part of the plaintiff’s case to show that his Action is not Barred by the Statute of Limitations, Such a showing may be essen­tial where the Period of Limitation is treated as a part ol~ the right created by a Statute. If, in the absence of such a Statute, a Declara­tion or Complaint discloses on its Face that the Action is Barred by the Statute of Limi­tations, there is a conflict of opinion, the gen­era! tendency of which is against the avail­ability of the Defect on Demurrer.4’ The situation with respect to whether the Statute of Frauds is available on Demurrer raises substantially the same problem as tile Statute of Limitations. At Common Law the Rule was that where an Action was founded upon a Contract which at Common Law was valid without a writing, but which the Statute re­quired to be in writing, it was not necessary for the Declaration to Count upon or take no­tice of the writing.42 If, however, a Statute created a right which did not exist at Com­mon Law, and required a writing, and the



40. McCurda V. Lcwisfown Journal Company, 104 Mc.

554, 72 Atl. 400 (1908).

41. Eulklcy v. Nonvieii & Westerly fly. Co., SI Conn.

281, 70 Atl. 1021 (100S). Cf. Kirkpatrick v. Monroe,

234 Jll.App. 213 (1024), reviewed critically ia 20 111.

L.Rcv. 391 (1925).

For an excellent discussion of the cases on this point specifically and on the Defense of the Statute of Limitations in general, see the articles by Atkinson, Pleading the Statute of Limitations, 00 Yale L.J. 014, 918—029 (1927); Atkinson, Some Procedural As­pects of the Statute of Limitations, 27 Col.L.Itev. 131 (1927); Atkioson, Allegations of Time In Plead­ing, 35 Yale L.J, 457 (3926).

For a discussion of the problem under the Codes, ~vith citation of cases, Sec Clark, Handbook of the Law of Code Pleading, c. 8, ~ 82, 522—523 (24 S. St. Paul 1047).

I’Vile,32

years


Court Plead Defect

a Gen­?r doth çh no~


ill De­~eneral

S after except of the Anne


of the rd for ~fatter ch the to the Imera­e con­n held to be
eneral
f the
~. As
tatute
I Mass, v. Car-(1892).

Walden


(1704).

5) and pp]ica­roecod­~ute is, ii pro­~l Do-as at Anne



42. Whitelsead v. Burgess, 61 N.J.L. 75, 38 At]. 802
(1597).

20

matter of Precedent in Pleading, only avail­able upon a Special Demurrer. In fact, the Special Demurrer was seldom used for any other purpose, as an Ordinary Defect in Form was available on General Demurrer, without any Assignment of Cause. After the Statute, Duplicity, despite its peculiarity as a fault, was treated as a Formal Defect, and hence available upon a Snecial Demurrer.47 But in Oklahoma Gas c~ Electric Co. v. Bates Ex­panded Steel Truss Co.,48 where the defendant Demurred Specially to the First and Second Counts of an Amended Declaration in Case on the Ground of Duplicity, the Court, regarding the Rules of Pleading as but juridical instru­mentalities for the furtherance of Justice, and taking note of a statutory requirement that pleadings should be framed to promote “conciseness, brevity and plainness”, over­ruled the Demurrer, where at Common Law the Demurrer would have been sustained. And in England, under the influence of the Common Law Procedure Act of 1852, which provided that “no Pleading shall be deemed insufficient for any Defect which could here­tofore only be objected to by Special Demur­rer,” ~ Duplicity, along with other Formal Defects, ceased to be available on Demurrer. The remedy is now by Motion.M



47. Hump~,reyg V. flethily, 2 Vent 222, 86 Eng.Rep.

405 (1690); Seymour v. Mitclieh, 2 Root (Coun.) 145 (1794),

11 F.24 415 (1926).

‘D. 15 & 16 Viet. e. 76, § 51, 92 Statutes at Large

297.

395


Five Exceptions to the General Rule that Every Violation of a Rule of Pleading is a Defect in Form

THE General Rule is that any Violation of a Rule of Pleading constitutes a Defect in Form. To this General Rule, however, there were at least Five Exceptions, that is, there were some situations in which a mere Viola­tion of a Rule of Pleading was held as a Mat­ter of Precedent to constitute a Defect in Substance, and therefore could be taken ad­vantage of on General Demurrer. This re-’ suited in case of (1) a Departure; (2) a Dis­continuance; (3) a Mispleader; (4) a Mis­conception of the Correct Form of Action; and (5) a Misjoinder of Counts. The first three of them are Aided by a Verdict; the last two constitute grounds for a Motion in Arrest of Judgment or Writ of Error, but are not Aided by a Verdict.5~



Motions to Strike Out

THE usual Method of Objection to parts of a Pleading is now by Motion to Strike Out what is superfluous, redundant, or immate­rial, and thus clear up the Issues by use of the pruning hook.55 By filing an Amended



Sec. 198

dis­Sral )rm ers,



TIlE DEMURRER

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50. In Curtis Funeral Home v. Smith Lumber Co.,

114 Vt. 150, 152, 40 A.2d 531, 332 (1945), Moulton, C.

3., declared: “Duplicity is a Defect of Form and Not of Substance. Johnson v. Hardware Mutual Casualty Co., 109 Vt. 481, 459, 1 A.2d 817. At Com­mon Law this fault in a Declaration could he reached only by a Special Demurrer. Lewis v. 3ohn Crane & Sons, 75 Vt. 210, 220, 62 At]. 60; 1 Chitty, Pleading, 16th Am. ed. 252; Gould, Pleading, 4th ed. 430, xi. 1. But under our Practice Act, which pro­vides, Pj~. 1578, flint a Pleading shall not fail for want of Form and that the Sufficiency of all Plead­ings In this respect is for the discretionary determi­nation of the Trial Court, the function of a Demur-

rer is to test the Sufficiency of a Pleading in Matters of Substance only. Ceburn v. Village of Swnnton, 05 Vt. 320, 324, 325, 115 A, 133. The Modern Demurrer resembles the Former Special Demurrer merely in that the Act, FL. 1574, III, requires it distinctly to specify the reason why the Pleading Demurred to is insufficient. Coates V. Eastern States Farmers Exchange, 99 Vt. 110, ITt 130 A. 709. It follows that, in our practice, Special Demurrers as known in the Common Law have bec,i iinphiedly abolishcd, and therefore Duplicity in Pleading, being, as we have seen, a Defect In Form, is to be reached by an appropriate Motion under the Provisions of FL. 1578. A similar procedure obtains in other Jurisdictions where Special De~ murrers are no longer recognized.”


51. ICeigwin, Cases on Common Law Pleading, Bk. IT, The Rules of Pleading, 444, 445 (2d ed., Roches­ter, 1934).
52. The sufficiency of a Defense must be tested by

Demurrer, and cannot he considered on Motion to

Strike a Paragraph as irrelevant. Bulova -cc B. L.

Barnett, Inc., 111 Misc. 150, 181 N.tSupp. 247 (Sup.

Pleading after a Demurrer is sustained, or by answering after a Demurrer is overruled, the Party waives any Exception to the Ruling before the Appellate Court.03 Therefore, a Motion to Strike Out, rather than a Demur­rer, may be preferable to save the benefit of

the objection.

EFFECT OF DEMURRER—BY WAY OF ADMISSION

199. Upon Demurrer, all Matters of Fact that are well Pleaded stand Admitted, under the Operation of the Rule that whatever Alle­gations are not Denied are assumed to be True, but only for the purpose of Decision on

-the Demurrer. A Demurrer does not admit Matters of Fact which are lll-PJeaded, nor does it admit Allegations of Conclusions of Fact or

of Law.


A Demurrer can never be founded on Matter Collateral to the Pleading which it opposes, but must always be based on the Face of the Plead­ing to which it is interposed. Thus, a Speak-

Ct., 1920), order modified, 193 App.Dir. 161, 183 N. Y.Supp, 495 (1st Dept 1920).

Where questions which should have been raised by Demurrer were raised by Motion to Striko Portion of Answer, the Motion may be treated as a Demar­rer, Lyons v. Farm Property Mut. Ins. Assn of Iowa, 158 Iowa 500, 179 NW. 291 (1920).

It is not the Omee of a Demurrer to test liupi’oper Allegations concerning Datneges, the remedy being by Motion to Strike or Objection t0 Evidence or Special Charges. Western Union Telegraph Co. v. Morrison, 15 AIaApp. 532, 74 8~. 88 (1917), judg­ment reversed, Ex Parte Wesh iii Union TeU.gruplt Ce., 200 Ala. 496, 76 So. 438 (TOll).

A Dennirrer is not the Proper Way to Test the Saul­ciency of a Notice of Deftnse filed cinder Section 46 of the Illinois Practice Ac-i, hut a Metion to Strike from the Files. White v. 1k” ,rqn ii,, 204 IlLApp. 83, 116 -(1917).

Sc-c, on Dernurrcrs and Motious to Strike Out, hail v.

O’Neil Turpentine Co., 56 Fla. 324, 47 Se, 609, 16

Aun.Cas. 735 11008); State v. Seaboard Air Line



fly,, hO FIn. 670, 47 So. 086 (1908); Southern Home

Ins. Co. v. Putnal, 57 Fla. 100, 49 So. 022 (1900).



~3. Error in sustaining a Dm11111-i-er is ~s’aived by Amending or asking leave to Amend or Plead Over. lkqujctt v- Union Ccitt, Life los. Co., 203 IlL. 444, Cl iV.E. 971 (1904).

~4. Coxe v. Culicl, 10 NiL. 328 (1.829).

That the Tunic is the same under the Modern Cases,

see Colorado: Downey i’. Colorado Fuel & Iron Co.,

48 Cob. 27, i08 Pac. 972 (1910); Iowa: Wnpcllo

State Say. Bank v. Cotton, 143 Iowa 350. 122 NW.

149 (1009); Wisconsin: Chicago & N. IV. fly. Co. v.

Allen, 94 Wis. 93, 65 NW. 873 (1896).

55. Coxe y. Chuck, 10 N.J.L. 328 (1820).

And under the Code, rite It ule is the same,— that a Dc­in urrer ~vil not adini t llh-Pieaded Facts. fleaton v. Packer, 131 AmcDiv. 812, 116 N.Y.Supp. 40 (1st Dept. 1909½. I3ut these Facts which by fair in­tendinent itiny Ic implied are admitted. New York:

Bhti,a v. Whitney, 185 N.Y. 232, 77 N.E. 1150 (1906):

North Carolina: Whitaere v. City of Charlotte, 216 NC. 687, 6 S.E.2d 558, 126 ALE. 438 (1940).

An Admission by Demurrer cannot be used against the Deinurrant at the Trial. Sprague v. New York & N. E. fly. Co., 68 Coon, 345, 36 A. 791 (1896).

And see, the earlier Now York case of Spencer v. Sooth~viek, 0 Iohns. (N1.) 314 (1812), in which it was held that an argumentative Plea is good on General Demurrer.

A Demurrer does not Admit the Law, 1-laitna v. Lieu­tenshein, 225 N.Y. 570, 122 KB. 625 (1019); and an

Admission by Demurrer is only for the Purpose of

Pleading. West v. H. 3. Lewis Oyster so., 99 Cona.

55, 121 At]. 462 (1923).

396


DEFENSIVE PLEADINGS

Ch. 20
ing Demurrer, which, in order to sustain it­self, requires Facts net appearing on the Face of the Pleading Objected to, is not permitted.
Two Fundamental Rules Covet-fling Admis­sions by Dernun’er

THERE are Two Rules that Govern Ad­missions by Demurrer. The first Rule is that a Demurrer will admit any Fact that is Well. Pleaded 04 and will not admit any Fact that is JllPleaded; ~ the second Rule is that a Demurrer will not admit any Fact which the Court takes Judicial Notice to be impossible or untrue. And the Technical Objective of these two rules was to test the Legal Effect of the Allegations to which they were ad­dressed and to aid in the Issue-Formulation Process of Separating Questions of Fact from Questions of Law, for ready reference to the Court or Jury, depending on whether the Pleadings terminated in an Issue of Fact or an Issue of Law.

CIt 20

Sec. 199

THE DEMURRER

397


A Demurrer wiTh Admit any Fact thzzt is Well-Pleaded and Will not Admit any Fact that is Ri-Pleaded

IN connection with the first Rule, the ques­tion arises as to when is a Fact Well-Pleaded or Ill-Pleaded? A Fact is We]1-Pieaded when it is required by the Substantive Law as es­sential to the Statement of a Cause of Action or Defense, and is then Pleaded without Vio­lating any Rule of Pleading. A Fact is Ill-Pleaded when it is not required by the Sub­stantive Law as essential to the Statement of a Cause of Action or Defense, or when, being so required, it is then Pleaded in Violation of one or more Rules of Pleading.

Thus if A sued B in Ejectment and Alleged, by way of Title, that he was Seized of Black-acre, the Allegation of Title was Well-Plead­ed, because it was required by the Substan­tive Law of Real Property as essential to the Statement of a Cause of Action in Ejectment, and because it was Alleged without Violating any Rule of Pleading. If, however, A had Alleged, by way of Title, that he had a Grant Deed of Blackacre, his Allegation of Title would have been Ill-Pleaded, as a Deed is Mere Evidence of Title, and amounts to the Statement of an Evidentiary Fact, a Defect available on Special Demurrer.

Assuming that the Facts are Well-Pleaded, a Demurrer thereto admits, for the Purpose of Argument, that they are true,5° and the only question for the Court is one of Law as to whether there is any Rule of Substantive Law attaching Legal Effect to the Facts

U. English: Barber v. Vincent, Freem.K.B. 531, 89

Eng.Rcp. 398 (1580); Connecticut: Lamphear v.

Buekingbam, 33 Conn. 237 (1866); Illinois: coin­pher v. People, 12 III. 290 (1850); Nhspcl v. Laparle,

74111. 376 (1874); Vermont: Matthews v. Tower, 39

Vt, 433 (ISGT).

It not only thus admits the Facts, but it also admits the consequences of those Facts, provided such con­sequences may fairly be considered as their legiti­Taste results. Hyde v. Mortar, 26 Vt. 271 (1544), And, see also, Dickerson v. Winslow, 07 Ala. 491, 11 So. 918 (1892).

Stated.57 The Rule is subject, however, to the qualification that the Matter must be suffi­ciently Pleaded, that is in the Manner and Form required by LaW.58 If the Facts were not Alleged in Proper Form, they were not admitted by a Demurrer under the Common-Law Rule which prevailed prior to the Stat­ute of Elizabeth (1585) and the Statute of Anne (1705) P° This Rule was changed by these Statutes, the Law of Demurrers being altered in such a way that thereafter Facts not Alleged according to the Form required by Procedural Law, might be admitted by Demurrer in some instaiwes.~° This usually results where the Demurrer is General, in­stead of Special, as this usually amounts to a Confession of the Matter Informally Pleaded, thus qualifying the earlier Common-Law Rule that a Demurrer did not admit an E­Pleaded Fact.&

A Demurrer does not admit Conclusions, either of Fact or of Law, which the Adverse Party may have seen fit to draw in his Plead­ingP Thus, in Milivilte Gas Light Company

57. A Demurrer to the Declaration raises a question of Law whether the plaintiff, upon the Facts stated, is entitled to Recovery. Virginia: Itenderson v. Stringer, S Grat. (Vt) 130 (1849); Federal: Hobson ‘cc MeArthur, 3 McLean, 241, Fed.Cas.Nq.6,554 (1843).
It Is not the Office of the Demurrer to Allege Pacts, but it is concerned with such Facts as are stated In the Pleading Demurred to. Jennings v, Peoria County, 196 Ill.App. 195 (1915).
Allegations of Fact contained In a Demurrer will be disregarded. Ibid.

58. Arkansas: Pierson v. Wallace, 7 Ark. 282 (1846);

Connecticut: Lamphear v. Buckingham, 33 Conn.

287 (1866); Vermont: Matthews v. Tower, 39 Vt.

433 (1867),
59. 5 Comyns Digest, ‘Pleader,” Q. 4 (Dublin 1793).
60. Walden ‘cc flolman, 2 Ld.Raym. 1015, 92 Eng.Rep.

175 (1704).

Cl, Ibid.

62, MIllard r, Baldwin, a Gray (Mass.) 454 (3855). “A Demurrer admits the Truth of such Facts as are Issuable and Well Pleaded; but it does not admit the conclusions which Counsel may choose to draw therefrom, although they may be stated in the Complaint. It is to the soundness of those



stain it­the Face flitted.
Admis.

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398

DEFENSIVE PLEADINGS

Ch. 20

v. Sweeten, &c., et aZ.,C the plaintiff Alleged that the defendants, under a contract with the city of Miliville, for the construction of a sewage system, dug up certain streets in the city where the plaintiff had laid gas pipes, which it thcreupon became the defendants’ duty to support, protect and render safe dur­ing the construction of the sewage system, and that in disregard of this duty the pipes were so negligently supported that they be­came broken, and severed, to the injury of plaintiff. The only information derivable from the plaintiff’s Declaration, with refer­ence to the existence of the defendant’s Duty to plaintiff, was that plaintiff’s pipes were “laid in the said streets by competent and le­gal authority.” On a Demurrer by the de­fendant, it was held that the Demurrer did not admit the plaintiff’s Allegation as to its authority to occupy the highway with its pipes; in short, a Demurrer does not admit a Conclusion of Law.

But this is not always so. When the plain­tiff, in stating title to real estate alleges that he is seized of Blackacre, he is Alleging a Conclusion of Law, yet if the defendant Demurs, he will lose, as this particular Con­clusion of Law is one which, as a Matter of Precedent in Law, is treated as a Statement of Ultimate Fact, and hence the Demurrer ad­mits it. So, when we say that a Demurrer will not admit a Conclusion of Law, we refer to that type of Conclusion of Law, which, as a Matter of Precedent, is not treated as a Statement of Ultimate Fact,

“Where the Facts are stated in a Pleading the Pleader may, and often should, state that Conclusion from such Facts upon which he bases his right, but where the Facts upon which the Pleader’s Conclusion is based are not stated his Conclusicyn from such Undis­

conclusions, whether stated in the Complaint or not, that a Demurrer Is directed, and to which It applies the proper test.” Branham y. Mayor, etc. of City of San Jose, 24 CaL 585, 602 (1864).
63. 74 N.J.L. 24, 04 AU. 950 (1906).

closed Facts goes for nothing, and not being in itself a Relevant Fact is not admitted by a Demurrer.” 64

Although a Demurrer admits Facts Well-Pleaded, its operation in this respect is only for the purpose of determining their legal sufficiency.65 It is strictly confined to this purpose, and cannot be made use of as an Instrument of Evidence on an Issue of Fact,°6 or as Evidence of Facts in another Cause; and, as observed, the admission is for the purpose of the argument only.°1

A Demurrer will not Admit any Fact which 21w Court talce.s Judicial Notice to be fin­possible or Untrue

THE second rule as to Admissions by Demurrer Is that a Demurrer will not admit Any Fact which the Court takes Judicial No­tice to be impossible or untrue.~ An ex­



64.- Id. at 25, 64 Ati, at 960.

65. Anheuser-Buseb Brewing Ass’s v. Bond, 65 Fed.

653 (1895).

66. Ibid.



67. English: Tomlci],s v. Ashhy, Moody & 11. 32, 173 Eng.Rep. 1071 (1827); Connecticut: Pease v. Phelps. 10 Conu. 62 (1834); Seovili xc Seeley, 14 Conn. 238 (1841); Havens v. Hartford & N. U. ii. Co., 28 Conn. 6~ (1559); Doolittle v. Selectmen of Bran-ford, 59 Coun. 402, 22 Atl. 336 (1890); Maine: Sun­son v. Gardiner, 33 Me, 94 (1851).
An Admission of Facts by a Demurrer in one Cause is not Evidence of those Facts in anotl,er Cause, al­though between the same Parties. Stinson v. Cardiner, 33 Me. 94 (1851).

‘A Default, like a Demurrer, is a constructive adnlls­sion of the truth of adversary’s Pleading.” East India Co. v. Glove,~, 1 Str. 612, 93 Eng.Eep. 733 (1724). But a Judgment on Default may he arrested or reversed, if the Declaration would be insuffi~ dent after Verdict. Collins v. Gibbs, 2 Burr. 899, 97 Eng.Rep, 623 (1759).

68. Southera Railway Co. v. Covenia, 100 Ge.. 40, 20 S.E. 219, 62 £m.St.Rep. 312, 40 LEA. 253 (1896), in which it was held, Ia a ease for the negligent injury of a child, that a Demurrer to the Declaration did not admit the AUegatlon that the child performed valuable services, as the Court Judicially knew that the services of a child that age, one year, eight

L. 20

Sec. 199

TilE DEMURRER

399


ample of the operation of this principle is found in the case in which the plaintiff sues in Trespass to Real Estate, the defendant pleads that he has not been served with a Summons, and the plaintiff Demurs. The de­fendant says, “I win, because, by your De­murrer you admit a lack of Service.” But the plaintiff wins, because a Demurrer does not admit a Fact which the Court by Judicial Notice knows to be untrue. Whether the de­fendant was served can only be Seen from looking at the Return of the Sheriff, which states that the defendant has been Served. The Return of the Sheriff is a part of the Common-Law Record, the Court Judicially Notices its own Record, hence the Court Judicially knows that defendant has been Served, that the defendant’s allegation of lack of service is untrue, and what the Court Judicially knows to be untrue is not admitted by Deniurrer6° This does not apply to facts of which the Court cannot take Judicial No­tice, though the Court may have private knowledge that they are untrue. Thus, in the case of Hodges v. Steward,’° in which the plaintiff brought Assumpsit upon an In­land Bill of Exchange, declaring upon a Spe­cial Custom in London for the bearer to bring the Action, and the defendant Demurred, it was held that since the Court only Judicially Noticed the general Law of Merchants, as part of the Law of England, whereas this custom was a local custom of England, the Demurrer admitted the local custom, even in the face of the fact that the Court might have known of its own knowledge that no such local custom existed. Accordingly, Judgment was given for the plaintiff, al­though the defendant might have had a good Defense if he had Traversed or Denied the local custom, instead of Demurring.

months and ten dayc, were not vaiuable, as it was incapable of performing valuable service.


4°. Cole v. Maunder, 2 Bofle, Abridgment, 548.
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