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70. 3 Salk. 68, 91 Eng.Uep. 696 (1693).

Will a Demurrer Admit the Pleader’s Conclu­sions as to the Construction of a Statute~

AN interesting aspect of Admission by Demurrer as affected by the Doctrine of Ju­dicial Notice appears in determining whether a Pleader’s Conclusion as to the Construction of a Statute is Admitted by a Demurrer. The Issue was clearly presented in the Illinois Case of Compher v. People.” This was an Action on a Bond executed by the county col­lector, in which the county collector and his sureties were defendants. One of the Pleas, after referring to various Statutes enacted subsequent to the date of the Bond, alleged that thereby the Liability of the sureties was materially changed; and it was insisted that the plaintiffs, by Demurring to the Plea, ad­mitted to the truth of the Construction of the Statutes as set forth by the defendants. The Court held that the Laws in question were Public Acts, and that the plaintiffs, by Demurring to a Plea construing them, did not admit such construction to be correct.

In considering this problem there are three situations to bear in mind: (1) Where the Action is based upon a Local Statute, and the Pleading sets out the Statute in Substance or Verbatim, the construction of the Pleader is not admitted by Demurrer, as the Court takes Judicial Notice of Local Law; (2) Where a Pleading sets out the Terms of a Foreign Statute, and then places a construc­tion upon it, such construction is not admit­ted by Demurrer; 72 and (3) where the Plead­ing states the Substance of a Foreign Stat­ute, it is treated as any other Allegation of Fact, and hence is admitted by Demurrer. as the Court will not take Judicial Notice of a Foreign Statute.’3

71. 12 Ill. 290 (1550).
72. Finney v. Guy, 189 11.5. 335, 23 S.Ct. 558, 47 L. Ed. 839 (1903). See, also, on this point the New York case of Hanna v. Llchtenstein, 225 N.Y. 570, 122 N. B. 625 (1019), cIting Pinney v. Guy, above, as au­thority.

73. American Trading & Storage Co. v, Cottsteln,

123 Iowa 267, 98 N.W. 770 (1904).

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DEFENSIVE PLEADINGS

Ch. 20

EFFECT OF DEMURRER—IN OPENING THE RECORD5~
2Db. A Demurrer Opens up the Whole Rec­ord and the Court will render Judgment against the First Party Guilty of a Substantive De­fect; as to Form, a Special Demurrer only reaches Defects in Form in the Pleading De­murred to, but since a Special Demurrer in­cludes a General, it also Opens up the Entire Record as to Substantive Defects. These Gen­eral Rules as to the Retrospective Effect of a Demurrer are sometimes subject to several ex­ceptions.

Exceptions: A Demurrer will not Open up

the Record back to the Declaration so as to cause Judgment to be rendered against the First Party Guilty of a Substantive Defect:

(1) Where the plaintiff Demurs to a Plea in Abatement

(2) Where there has been a Discontinuance along one of several lines of Plead-

ing

(3) Where the defendant interposes more than one Plea, one of which is a Plea of the General Issue, and there is a Demurrer at a later Stage in the Pleadings

(4) Where the plaintiff Demurs to a Plea

which has been entered by the de­fendant after defendant’s Demurrer to the Declaration has been over-

ruled

Although, on Demurrer, the Court will gen­erally consider the Whole Record, and give Judgment for the Party who, on the whole, appears Entitled to it, where, though the Right,

71. In general, on the Retrospective Effect of a Dc­lnurrer, see:

Treatises: Sbipman, Handbook of Conunon Law

Pleading, c. 12, 152, Demurrers Opening Record,

284 (3d ed. by Ballantine, St. Paul 1923); Clark,

Handbook of the Law of Code Pleading, c. 8, § 83.

Effect of Demurrer as Opening Up the Record, 524

(2,3 ed., St. Paul 1947).

Articles: Miliar, Restriction of the Retroactive Oper­ation of Demurrer, 10 IILL.Ret 417 (1016); Carlin, Functions of a Demurrer Under the Revised Code.

41 W.VO.L.Q. 313 (1935); P11cc, ObjectIons to Plead­ings Under the New Federal Rules of Civil Proce­tiure, 47 Yale Li. 50 (1937); Tripp, Some Observa­tions on Motion Practice In New York, 2 Syracuse LEer; 273 (1951).



on the Whole Record, appears to be with the plaintiff, if he has not put his Action on that Ground, the defendant will prevail.
The General Rule

IT is a well-established Rule that on De­murrer to a Pleading or portions of it, the

Court will consider the Whole Record, and give Judgment for the Party who, on the whole, appears entitled to it,~ or against the Party whose Pleading contains the First Sub­stantive Defect,’6 What this means in Prac­

7~. English: Piggot’s Case, 5 Co. 29a, 77 Eng.flep.

95 (1598); Elgeway’s Case, 3 Co. 52a, 76 Bng,Rep.

753 (1594); Foster v. Jackson, Rob. 56, SO Eng.Rep.

201 (1615); Tippet tMay, I Bos. & P.411,126 Eng.



Rep. 982 (1799); Le I3ret v. Papiflon, 4 East 5”A2,

102 Eng.Rcp. 023 (1804); Marsh v. Bnitcel. 5 Bar:,.

& AId. 507, 106 Eng.Rep. 1270 (1822); Bates v. coit.

2 Barn & C. 474, 107 Eng.Ilep. 460 (1824); Davies v.

Fenton, 6 Barn & C. 216, 108 Eng.flep. 433 (1527)

Connecticut: Bishop v. Quintard, 15 Conu. 391

(1847); FlorIda: Miller v. Kingsbury, S Fin, SSt;

(1859); Illinois: McFadden v. Fortier, 20 Ill. 509

(1858); Haynes v. Lucas, 50 III. 436 (1860); Mount

Carbon Coal & it. Co. v. Andrews, 53 III. 170

(1870); Illinois Fire Ins. Co. v. Stanton, 57 IlL 354

(1870); Ft. Dearborn Lodge v. Klein, 113 Iii. 171,

3 N.E. 272, 56 Am.St.Rep. 133 (1885); Dupee v.

Blake, 148 Ill. 453, 35 N.E. 807 (1593); Distilling &

Cattle Feeding Co. v. People, 150 Iii. 448, 41 N.E.

188, 47 Am.St.Rep, 200 (1895); Hedrick v. People,

221 Ifl, 374, 77 N.E. 441, 5 Ann.Cas. 690 (1906);

Heimberger v, Elliot Frog & Switch Co., 245 II!. 448,

92 N.E. 297 (1010); New Hampshire: Leslie v. liar­low, 18 N.H. 518 (1841); Claggett v, Simes, 31 N.H.

22 (1855); New York: The Auburn & Ou’a,eo Ca­nal Co. v, Leitch, 4 flenlo (N.Y.) 65 (1841) l’enn­sylvania: Barnctt v. Barnett, 16 Serg. & B. (Pa.) 51

(1827); Virginia: Day v. Pickett, 4 Munf. (Va.)

104 (1813); Federal: Gornian v. Limos, 15 Peters

(U.S.) 115, 10 Ltd. 680 (1841); Townsend v. Jemi­son, 7 flow. (U.S.) 706, 12 Ltd. 880 (1849).

And that the Rule is the same under the Code, see

Pierce v. Bristol, 130 Misc, 188, 223 N.Y.Supp. 678

(1027). See, also, Baxter v. McDonnell, 154 N.Y.

432, 48 N.E. 816 (1897).



74. That the situation on Demurrer is the same un­der the Code, see Schwab v. Furniss, 4 Sandf. (N. 7.) 704, at 704—S (1852) In which Sandlora, 3., de­clared: ~‘... On a Demurrer to a Pleading, or portions of It, the Rule now is the same as it was before the Code of Procedure, that Judgment shalt be given against the Party who committed the first Substantial Fault That is, If the Demurrer be to an Answer, and It appear that the Complaint do~

CL 20

Sec. 200

TIlE DEMURRER

401.


lice is that upon Demurrer, the Court goes back to the Declaration and makes a Search of the Record for Substantive Defects, taking each Stage of the Pleadings in order, and then gives Judgment against the Party Guilty of the First Substantive Error. Before a Party Demurs, therefore, he should be certain that his own fences are in good repair. Thus, if the plaintiff declares in Replevin for a Specific Chattel, but fails to allege Title, and the defendant Pleads the Statute of Limita­tions, to which the plaintiff Demurs, Judg­ment will go for the defendant, the plaintiff having failed to state Title in his Declaration, thus making himself guilty of the First Sub. stantive Defect. And, on Demurrer to a Replication, if the Court regards the Replica­tion bad, but perceives a Substantive Defect in the Plea, Judgment will be given, not for the defendant, but for the plaintiff, provided the Declaration is good as a Matter of Sub­stantive Law; but if the Declaration is De­fective in Point of Substance, then, upon the same principle, Judgment would be given in favor of the defendant,77 The Demurrer, at whatever Stage of the Pleadings it is inter­posed; reaches back in its effect, through the Whole Record, and ultimately attaches to the First Substantive Defect in the Plead-

not show a Cause of Action, Judgment shall be giv­en against the plaintiff and the Complaint dis­missed, (Code, See. 148). If the Demurrer be to the Reply, the plaintiff may show that the Answer is insufficient, and have Judgment in his favor.

“There is no more reason now than formerly, that a plaintiff should have Judgment on Demurring to an Answer, when it appears upon the Face of the Rec­ord that he has No Cause of Action; or that the defendant should succeed on Demurrer to the Re­ply, when it Is apparent upon his Answer that he has No Defense.”

71. Piggot’s Case, 5 Co. 29a, 77 Eng.Rcp. 95 (1598), and eases cited in note 75, supra.

See, also, Chelsea Exch. Bank v. Travelers’ Ins. Co.,

173 App.Div. 829, 160 )UY.Supp. 225 (1st Dep’t

1916), Ct. Rx Partc HInes, 205 Ala. 17, 87 So. 091

(1920), granting Certiorari in Hines v. MeMillan, 17

Ala.App. 509, 87 So. 696 (1920).

ing~’8 on whichever side it may have oc­curred; and therefore, though the Parties join in the Demurrer upon any particular point, at any Stage of the Pleadings, Judg­ment must still be given upon the Whole Record, and regularly against the Party in whose Pleading such fault occurred. This Rule belongs to the General Principle that when Judgment is to be given, whether the Issue be in Law or Fact, and whether the Cause has proceeded to Issue or not, the Court is always bound to examine the Whole Record, and adjudge for the plaintiff or de­fendant, according to the Legal Right, as it may, on the whole, appear.m

However, a Demurrer will not open tip the Record back to the Declaration when the plaintiff, at the Replication Stage of Plead­ing, Demurs Specially to the defendant’s Plea, which is Substantively Defective, and there is a Defect in Form in the Declaration. This results from the Statute of Elizabeth,~ which provided for Waiver of all Defects in Form unless objected to at the next Succeed­ing Stage in Pleading, or to put the Matter in another way, a Special Demurrer only reaches Defects in Form in the Pleading

with the

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Yilount

111. 176 Ill. ~ij4 DI. 177, )upee r. tilling &

41 N.E. People, (10061;

11!. 14S, V. liar-31 N.H. seo Ca­I’enn­(Pa.) SI

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78. The reason for this Iltil” is forcibly sta(c~l iii the ease of Ordinary v. Bruecy, 1 Brev. (SC) 191. 196 (1802) by Griml~e, J., who declared: 4An,l tl,o reason of this Course of Proceeding in the Court is fundamentally right; for should they, i,i the lirst instance, rectify the Last Fault, they must then hear another Motion to set the preceding one to rights also: by which mole half a dozen questions might be made on the Propriety of Proceedings, only one of wh:eh might he determined at any one Court. This would be the means of lengthening out an Issue to an unreasonable length of time, and to the very great delay of Justice. Whereas, by the Rule laid down above, that the Court will look for the first Fault, and give Judgment accordingly, all



the snbsequent Defective Proceedings arc at once,.

and by one single decision, set at naught, and dis­missed.”
79. Stephen, A Treatise on the Principles of Pleading In Civil Actions, e. II, 160 (3d Am. ed. by Tyler,. Washington, 1). C. 1893).
SO. 27 Elis. e. 5 3 6 Statutes at Large 360 (1585).

402


DEFENSIVE PLEADINGS

Cli. 20


Demurred to, whereas, as to Substance, it goes all the way back to the Declaration, since, as previously observed, a Special De­murrer includes a Genera Thus, to illus­trate the point, if A puts in a Declaration Good in Substance, but Bad in Form, B puts in a Plea Good in Form and Bad in Substance, and A Demurs Specially, B wifi lose for two reasons, one because the Defect in Form in A’s Declaration is not open on A’s Special Demurrer; it was waived by B’s failure to Demur Specially at the Second Stage of Pleading; two, because B was Guilty of the First Substantive Defect, which was available even on .4’s Special Demurrer, which included a General, and without re­gard to the Formal Defect in A’s Declara­tion.8

The Rule that a Demurrer will open up the Record back to the Declaration so as to cause Judgment to be rendered against the First Party guilty of a Substantive De­fect, however, may, at Common Law, be sub­ject to at least four Exceptions.



Exceptions to the Qetterai Rule

The first Exception occurs where the plaintiff Demurs to a Plea in Abatement. Thus, for instance, let us suppose that A sues in Ejectment, but fails to allege Title, that .8 pleads that he was sued in the wrong County, but fails to give the plaintiff a better Writ, or to tell him in what County he might be sued in. This is a Plea in Abate­ment, Defective in Form for failure to give the plaintiff a Better Writ. Now, suppose A Demurs Generally to the Plea. Does the Demurrer reach back to the Defect in the plaintiff’s Declaration, that is, his Failure to allege Title, If it were permitted to do so, the defendant would win the case on the Merits, without having taken any chance of losing it on the Merits, as, with one Ex­ception, on a Plea in Abatement the Judg­

ment is never on the Merits. In order to prevent the defendant from winning when, by his Plea hi Abatement he took no chance of losing on the Merits, an Exception to the Rule as to the retrospective effect of a Demurrer was created where the Demurrer was interposed to a Plea in Abatement, and where, to permit the Demurrer to search the Whole Record, would sooner or later, as illus­trated by the case above, result in a victory for the defendant where he had no chance

to lose.82

The second Exception arises where there has been a discontinuance along one of sev­eral lines of Pleading. An example of this

82. Professor Charles A, ICeigwin explains this point as follows: ‘Pleas in Abatement are not within the Operation of the Usual Ruie, and that for two rea­sons: (1) in Point of Policy such Pleas are dis­couraged, because odious in Law and often preju­dicial to Justice; and (2) in Point of Principle, a flea in Abatement is addressed, not to the Declara­tion, but to the writ npon which the Declaration is based, and the Purpose of the Plea is to Abate or quash the Writ for some Defect in the framing of the case. Therefore, on Demurrer to a Flea in Abatement, the defendant cannot turn the Demur­rer against the Declaration. Should the Plea be Re­plied to and the Replication Demurred to, the gen­eral principle operates so far as to carry the De­murrer back to the Plea, but not to make available any Objections to the Declaration.” Cases in Com­mon Law Pleading. Ilk. II, The Rules of Pleading, 450 (2d ed. Rochester. 1934).

See, also, on the same point, the following eases:

English: Bastrop v. Hastings, I Salk. 212, 91 Eng.

Rep. 189 (1692); Belasyse v. Hester, 2 Lut. 1592, 125

Bng.Rep. 873 (16136); Itouth -v. WethIell, .2 Lut. 1667,

125 Eng.Rep. 915 (1703); Alabama: Cobb v. Miller,

8 Ala. 499 (1846); Arkansas: Knott v. Clements, 13

Ark. 335 (1853); Illinois: Bunter y. Bilyeu, 39 III.

367 (1366); Finch v. Galigher, 181 111, 031, 54 N.E.

611 (1899); Indiana: Pricey. Grand Rapids & 1. F.

Co., 18 md. 137 (1802)~ Massachusetts: Clifford v.

Cony, 1 Mass. 495 (1805) New Jersey: Birch v.

ICing, 71 N.J.L. 392, 59 A. 11 (1904); New York:



51mw v. Duteber, 19 Wend, (N.Y.) 216 (1838); Rhode

Island: Ellis v. Ellis, 4 RI. 110 (1856).

The Exception as to the Retrospective Effect of a Demurrer to a Plea in Abatement also prevails un­der the Code. ICempton Hotel Co. v. Bieketts, 76 Ind.App. 458, 132 N.E. 308 (1921).

St Dunlevy v. Fenton, 80 St 505, 05 AtI. 651, 130 Am.

St.Rep. 1009 (1908).

Cli. 20

Sec. 200

THE OEMTJRRER

403


may be seen in the case of Tippet v. May,83 in which the plaintiff declared in Assumpsit against A, B and C. Two of the defendants, A and B, pleaded a Debt of Record by way of set-off, without taking any notice of the third. The plaintiff Replied Nul Tiel Record, and gave a day to produce the Record to the two defendants A and B, but entered no suggestion on the roll respecting the third,

C. To this Replication, there was a General Demurrer. The Court held that the plaintiffs having Replied to a Plea by two of the de­fendants without taking notice of the third against whom they declared, had made a discontinuance; that the Cause being discon­tinued, Judgment must be given against the plaintiffs, as they were not in a position to take advantage of the Defect in the defend­ant’s Plea.84 To put the matter in another way, the plaintiffs, by neglecting to sign Judgment against the defendant, on Allega­tions the latter failed to answer, caused a Discontinuance of the Action. The principle involved was that the plaintiff, by omitting to follow up his entire demand against the three defendants, created an interruption in the proceedings, which is technically known as a “Discontinuance,” and which creates an Error on the Record. The commission of this fault places the plaintiff where he is in no position to ask for Judgment; but such an Error is now generally cured by ona of the Statutes of Jeofails,85 after Verdict, as well as after Judgment.

The third Exception may appear where a defendant interposes more than one Plea, one of which is a Plea of the General Issue, and there is a Demurrer at a later Stage in the Pleadings. However, in The Auburn c~ Owes-

1 Bbs. & Pull. 411, 126 Eng.Rep. 082 (1799). See,

also, Flemming v. Mayor, etc. of City of Hoboken, 40 N.J.L. 270 (1875).



84. This type of error was touched upon in the Stat­ute of Mispleadings, Jeofails, 32 Ben. VIII, c. 80, 5 Statutes at Large 45 (1540).

co Canal Company v. Leitch,86 where the plaintiff declared in Assumpsit for certain installments due upon shares of the capital stock of the plaintiff’s corporation, sub­scribed for by the defendant, the defendant Pleaded Non .Assumpsit and Nit! Tie! Corpo­ration; to which the plaintiff Replied, setting out the act Incorporating the plaintiff, to which Replication the defendant Demurred, the Court held that the Declaration was Bad in Substance, and that the Demurrer would Open Up the Record back to the Declaration; that the earlier case of Wheeler v. Curtis.57 had erroneously assumed, in dictum, that to permit the Demurrer to operate retroactively under such circumstances would violate the

86. 4 Denio (N.Y.) 05 (1847).
87. 11 Wend. (N.Y.) 653 (1834). In accord: Baldwin

v. City of Aberdeen, 23 S.D. 636, 123 NW. 80

(1909). Other New York eases decided between the

Wheeler (1834) and Auburn & Owaseo Canal Co.

(1847) cases, include: Dearborn v. Kent, 14 Wend.

(N.Y.) 283 (1835); Russell v. Rogers, 15 Wend. (N.

Y.) 831 (1836). Cf. Miller v. Maxwell, 16 Wend. (N.

V.) 0 (1836).

order to Ig when, 0 chance ption to .ect of a emurrer ent, and arch the as ifltz.s­victory chance

there

of sev­of this

his point ithin the two rca-are cbs­n preju Beiple, a Deelara.

ration is Uiate or truing of Plea in Demur.

8 be Re­lie gen the Dc. vailable n Corn­ending,

Cases:

)I Eng~


92, 125

t 1667;

Miller,

nts, 13


39 Ill.

4 N.E.


k I. It.

v.

v.



York:

Rhode


The earliest mention of this Rule In Illinois was in Brawner v. Lomsx, 2.3 In. 496 (1860), which was decided without any reference to the New York de­cisions. Wear V. Jacksonville & Savaonah lt. F. Co., 24 III. 5413 (1860), was decided against the Ret­rospective Effect of the Demurrer on the theory that a I’arty could not Plead and Demur at the Same Time to the Same Pleading. Other eflcr’s fol­lowed: Wilson v. Myriek, 26 III, 34 (1561) ; Clayton v. Munger, 511)1. 373 (1869).
This wns riot, however, the rule in England. To the contrary, the Retroactive Operation of Demurrer wns consciously per,nitted by the English Ct,nrts in this instance. In an account of certain features of the Common Law Practice, it was nuthoritatively said in 1830: “The defendant occasionally resorts to the expedient of Pleading in addition to some Plea sufficient in Point of Law, another which he knows to he insufficient, but to contain a True Statement of Facts, He thus sometimes succeeds in compelling the plaintiff to take Issue in Fact upon the First Plea, and to Demur to the Second; and, as upon the Argument of the Demurrer, the Court looks to the Whole Record, and decides against the Party First In Fault, the defendaht, instead of supporting his Second Plea, attacks the Declaration, and thus, In ef­fect, both Demurs and Pleadi to the Declaration.” Third Report of Commissioners on the Superior Courts of Commob Law, 26 (London, 1830).

of a is an­ts, 76

~. Ibid.

404


DEFENSIVE PLEADINGS

Ch. 20

well-established Rule that the defendant

could not Both Plead and Demur to the same

Count.88

The fourth Exception occurs where tile

plaintiff Demurs to a Plea which has been

entered by the defendant after his Demurrer

to the Declaration has been overruled. Some

Courts hold, as, for example, in Stearns v.

88. In referring to this specific point, Bronson, C. J., observed: It is quite clear that the defendant cannot both Plead and Demur to the Same Count. And it is equally clear, that at the Common Law, lie could not have Two Pleas to the Same Count. Indeed the two things, though stated in different ‘verdi, are only parts of one Common-Law Rule; to wit, that the defendant cannot make Two An­swers to the Same Pleading. The Statute c:f 4 and 5 Anne, e. 16, was made to remedy this inconveni­ence; and it allowed the defendant, with the leave of the Court, to Plead as many Several Matters as he should think necessary for his defence. With us, leave of the Court is no longer necessary. (2 ItS. 352, ~ 9). The Statute does not say that the defend­ant may both Plead and Demur; and consequently lie ep.unot make Two Such Answers. But he moy Plead Two or More Pleas; sonic of which may term­inate in Issues of Fact, to be tried by a Jory; while others may result in Issues of Law, to be determined by the Court. And whenever we come to a Demur­rer, whether it be to the Plea, Replication, Rejoinder, or still further onward, tile Rule is to give Judg­inert against the Party who committed the First Fault in Pleading, if the Fault be such as would maine the Pleading bad on General Demurrer. This finle has always prevailed. It was the Rule prior to the Statute of Anne; and to say that the defend­ant, because he Pleads Two Pleas, one of which re­sults Ia a Demurrer, cannot go back and attack the Declaration, would he to deprive him of a por­tion of the privilege which the Legislature intend­ed to confer. lie eannet Plead and Demur at the Same Time, because the Common Law forbids it; and the Statute does not allow it. But he may Plead Two fleas; and be takes the right with all its legitimate consequences; one of which is, that whenever there comes a Demurrer upon either of the two Lines of Pleading, be may run back upon that line to see which Party committed the First Fault; and against that Party Judgment will be rendered. Aside from the dicta in question, there is not a shadow of authority, either here or in Eng­land, for a different Doctrine.” The Auburn & Owasco Canal Co. t Lelteh, 4 DeMo (N.Y.) 65, 67

(1847).

Cope, that where the defendant has Dc­murred to the Declaration, his Demurrer has been overruled, and he has Pleaded over, an Exception is created to the General Rule, and the Court having once passed on the suf­ficiency of the Declaration, it is incompetent for the same tribunal, at a succeeding term

to reverse the decision; also, that the defend-

ant having submitted to the first decision, he thereby waived the Defect in the Declaration, if any. But in Cummins v. Gray,°° the oppo­

site view was taken.



Where Plaintiff has not put his Action on the Proper Ground
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