KFLCC Kingdom Law 2nd Ed.

352

DEMURRER

DEMONSTRATE

DEMONSTRATIO. Description; addition; denomination. Occurring often in the phrase, "Falsa demonstratio non nocet," (a false description does not harm.) DEMONSTRATION. Description; pointing out That which is said or written to designate a thing or person. In evidence. Absolutely, convincing proof. That proof which excludes all possibility of error. Treadwell v. Whittier, 80 Cal. 574, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175; Boetgen v. Railroad Co.

Va. 26, 1 S. E. 395; Parish v. Sloan, 38 N. C. 609; Goodman v. Ford, 23 Miss. 595; Hos tetter Co. v. Lyons Co. (C. C.) 99 Fed. 735. An objection made by one party to his op ponent's pleading, alleging that he ought not to answer it, for some defect in law in the pleading. It admits the facts, and refers the law arising thereon to the court 7 How. 581. It imports that the objecting party will net proceed, but will wait the judgment of the court whether he is bound so to do. Co. Litt 716; Steph. PI. 61. In Equity. An allegation of a defendant which, admitting the matters of fact alleged by the bill to be true, shows that as they are therein set forth they are insufficient for the plaintiff to proceed upon or to oblige the de fendant to answer; or that for some reason apparent on the face of the bill, or on ac count of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be at tendant thereon, the defendant ought not to be compelled to answer to the whole bill, or to some certain part thereof. Mitf. Eq. PL 107. Classification and varieties. A general demurrer is a demurrer framed m general terms, without showing specifically the nature of the objection, and which is usually resorted to where the objection is to matter of substance. Steph. PI. 140-142; 1 Chit. PI. 663. See Reid v. Field, 83 Va. 26, 1 S. E. 395; U. S. v. National Bank (C. C.) 73 Fed. 381; McGuire v. Van Pelt, 55 Ala. 344; Taylor v. Taylor, 87 Mich. 64, 49 N. W. 519. A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows spe cifically the nature of the objection, and the particular ground of the exception. 3 Bouv. lust. no. 3022. Darcey v. Lake, 46 Miss. 117; Christmas v. Russell, 5 Wall. 303, 18 L. Ed. 475; Shaw v. Chase, 77 Mich. 436, 43 N. W. 883. A speaking demurrer is one which, in or der to sustain itself, requires the aid of a fact not appearing on the face of the pleading ob jected to, or, in other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the ground of objection. Wright v. Weber, 17 Pa. Super. Ct. 455; Walker v. Conant, 65 Mich. 194, 31 N. W. 786; Brooks v. Gibbons, 4 Paige (N. Y.) 375; Clarke v. Land Co., 113 Ga. 21, 38 S. E. 323. A parol demurrer (not properly a de murrer at all) was a staying of the pleadings; a suspension of the proceedings in an action during the nonage of an infant, especially in a real action. Now abolished. 3 Bl. Comm. 300. -Demu r r e r book. In practice. A record of the issue on a demurrer at law, contain* ing a transcript of the pleadings, with proper entries; and intended for the use of the court and counsel on the argument 3 Bl. Comm. 317; 3 Steph. Comm. 581.—Demurrer ore tenus. This name is sometimes given to a rul ing on an objection to evidence, but is not prop erly a demurrer at all. Mandelert v. Land Co., 104 Wis. 423, 80 N. W. 726.—Demurrer to evidence. This proceeding (now practically obsolete) was analogous to a demurrer to a pleading. It was an objection or exception by one of the parties in an action at law, to the effect that the evidence which his adversary had produced was insufficient in point of law (whether true or not) to make out his case or sustain the issue. Upon joinder in demurrer, the jury was discharged, and the case was ar