| slovo | definícia |
demurrer
(encz) | demurrer,právní námitka n: Zdeněk Brož |
Demurrer
(gcide) | Demurrer \De*mur"rer\, n.
1. One who demurs.
[1913 Webster]
2. (Law) A stop or pause by a party to an action, for the
judgment of the court on the question, whether, assuming
the truth of the matter alleged by the opposite party, it
is sufficient in law to sustain the action or defense, and
hence whether the party resting is bound to answer or
proceed further.
[1913 Webster]
Demurrer to evidence, an exception taken by a party to the
evidence offered by the opposite party, and an objecting
to proceed further, on the allegation that such evidence
is not sufficient in law to maintain the issue, and a
reference to the court to determine the point. --Bouvier.
[1913 Webster] |
demurrer
(wn) | demurrer
n 1: (law) a formal objection to an opponent's pleadings [syn:
demur, demurral, demurrer]
2: (law) any pleading that attacks the legal sufficiency of the
opponent's pleadings
3: a defendant's answer or plea denying the truth of the charges
against him; "he gave evidence for the defense" [syn:
defense, defence, denial, demurrer] [ant: {criminal
prosecution}, prosecution] |
DEMURRER
(bouvier) | DEMURRER. (From the Latin demorari, or old French demorrer, to wait or
stay.) In pleading, imports, according to its etymology, that the objecting
party will not proceed with the pleading, because no sufficient statement
has been made on the other side; but will wait the judgment of the court
whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.
2. A demurrer may be for insufficiency either in substance or in form
that is, it may be either on the ground that the case shown by the opposite
party is essentially insufficient, or on the ground that it is stated in an
artificial manner; for the law requires in every pleading, two thing's;
the one, that it be in matter sufficient; the other, that it be deduced and
expressed according to the forms of law; and if either the one or the other
of these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in
its nature, so also in its form, is of two kinds; it is either general or
special.
3. With respect to the effect of a demurrer, it is, first, a rule, that
a demurrer admits all such matters of fact as are sufficiently pleaded. Bac.
Abr. Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a
demurrer, the court will consider the whole record, and give judgment for
the party who, on the whole, appears to be entitled to it. Com. Dig.
Pleader, M. 1, M 2; Bad. Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150;
4 East, 502 1 Saund. 285 n. 5. For example, on a demurrer to the
replication, if the court think the replication bad, but perceive a
substantial fault in the plea, they will give judgment, not for the
defendant, but for the plaintiff; 2 Wils. R. 1&0; 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 Rep. 29 a. For when
judgment is to be given, whether the issue be in law or fact, and whether
the cause have proceeded to issue or not, the court is always to examine the
whole record, and adjudge for the plaintiff or defendant, according to the
legal right, as it may on the whole appear.
4. It is, however, subject to, the following exceptions; first, if the
plaintiff demur to a plea in abatement, and the court decide against the
plea, they will give judgment of respondeat ouster, without regard to any
defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172
Secondly, the court will not look back into the record, to adjudge in favor
of an apparent right in the plaintiff, unless the plaintiff have himself put
his action upon that ground. 5 Barn. & Ald 507. Lastly, the court, in
examining the whole record, to adjudge according to the apparent right, will
consider the right in matter of substance, and not in respect of mere form,
such as should have been the subject of a special demurrer. 2 Vent. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer upon a
demurrer, or pleading over when an issue in fact is offered, is a
discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.
6. Demurrers are general and special, and demurrers to evidence, and to
interrogatories.
7.-1. A general demurrer is one which excepts to the sufficiency of a
previous pleading in general terms, without showing specifically the nature
of the objection; and such demurrer is sufficient, when the objection is on
matter of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167;
Bac. Abr. Pleas, N 5; Co. Lit. 72 a.
8.-2. A special demurrer is one which excepts to the sufficiency of
the pleadings on the,opposite side, and shows specifically the nature of the
objection and the particular ground of exception. Co. Litt. 72, a.; Bac.
Abr. Pleas, N 5.
9. A special demurrer is necessary, where it turns on matter of form
only; that is, where, notwithstanding such objections, enough appears to
entitle the opposite party to judgment, as far as relates to the merits of
the cause. For, by two statutes, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed
with a view to the discouragement of merely formal objections, it is
provided in nearly the same terms, that the judges "shall give judgment
according to the very right of the cause and matter in law as it shall
appear unto them, without regarding any imperfection, omission, defect or
want of form, except those only 'Which the party demurring shall,
specifically. and particularly set down and express, together with his
demurrer, as the causes of the same." Since these statutes, therefore, no
mere matter of form can be objected to on a general demurrer; but the
demurrer must be in the special form, and the objection specifically stated.
But, on the other hand, it is to be observed, that, under a special
demurrer, the party may, on the argument, not only take advantage of the
particular faults which his demurrer specifies, but also of all objections
in substance, or regarding the very right of the cause, (as the statute
expresses it.) as under those statutes, need not be particularly set down.
It follows, therefore, that unless the objection be clearly of the
substantial kind, it is the safer course, in all cases, to demur specially.
Yet, where a general demurrer is plainly efficient, it is more usually
adopted in practice; because the effect of the special form being to apprise
the opposite party more distinctly of the nature of the objection, it is
attended with the inconvenience, of enabling him to prepare to maintain his
pleading by argument, or of leading him to apply the earlier to amend. With
respect to the degree of particularity, with which, under these statutes,
the special demurrer must assign the ground of objection, it may be
observed, that it is not sufficient to object, in general terms, that the
pleading is "uncertain, defective, and informal," or the like, but if is
necessarily to show in what, it respect, uncertain, defective, and informal.
1 Saund. 161, n. 1, 337 b, n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.
10.- 3. A demurrer to evidence is analogous to a demurrer in pleading;
the party from whom it comes declaring that he will not proceed, because the
evidence offered on the other side, is not sufficient to maintain the issue.
Upon joinder in demurrer, by the opposite party, the jury are, in general,
discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being
entered on record, is afterwards argued and decided by the court in banc;
and the judgment there given upon it, may ultimately be brought before a
court of error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2,
Sec. 47 United States Dig. Pleading, Viii.
11.-4. Demurrer to interrogatories. By this phrase is understood the
reasons which a witness tenders for not answering a particular question in
interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a
demurrer, which admits the facts stated, for the purpose of taking the.
opinion of the court but by an abuse of the term, the witness objection to
answer is called a demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12. The court are judicially to determine their validity. The witness
must state his objection very carefully, for these demurrers are held to
strict rules, and are readily overruled if they cover too much. 2 Atk. 524;
1 Y. & J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com.
Dig. Pleader, Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1
Chit. Pl. 639-649 Bouv. Inst. Index, h.t.
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| | podobné slovo | definícia |
demurrer
(encz) | demurrer,právní námitka n: Zdeněk Brož |
Demurrer
(gcide) | Demurrer \De*mur"rer\, n.
1. One who demurs.
[1913 Webster]
2. (Law) A stop or pause by a party to an action, for the
judgment of the court on the question, whether, assuming
the truth of the matter alleged by the opposite party, it
is sufficient in law to sustain the action or defense, and
hence whether the party resting is bound to answer or
proceed further.
[1913 Webster]
Demurrer to evidence, an exception taken by a party to the
evidence offered by the opposite party, and an objecting
to proceed further, on the allegation that such evidence
is not sufficient in law to maintain the issue, and a
reference to the court to determine the point. --Bouvier.
[1913 Webster] |
Demurrer to evidence
(gcide) | Demurrer \De*mur"rer\, n.
1. One who demurs.
[1913 Webster]
2. (Law) A stop or pause by a party to an action, for the
judgment of the court on the question, whether, assuming
the truth of the matter alleged by the opposite party, it
is sufficient in law to sustain the action or defense, and
hence whether the party resting is bound to answer or
proceed further.
[1913 Webster]
Demurrer to evidence, an exception taken by a party to the
evidence offered by the opposite party, and an objecting
to proceed further, on the allegation that such evidence
is not sufficient in law to maintain the issue, and a
reference to the court to determine the point. --Bouvier.
[1913 Webster] |
General demurrer
(gcide) | General \Gen"er*al\, a. [F. g['e]n['e]ral, fr. L. generalis. See
Genus.]
1. Relating to a genus or kind; pertaining to a whole class
or order; as, a general law of animal or vegetable
economy.
[1913 Webster]
2. Comprehending many species or individuals; not special or
particular; including all particulars; as, a general
inference or conclusion.
[1913 Webster]
3. Not restrained or limited to a precise import; not
specific; vague; indefinite; lax in signification; as, a
loose and general expression.
[1913 Webster]
4. Common to many, or the greatest number; widely spread;
prevalent; extensive, though not universal; as, a general
opinion; a general custom.
[1913 Webster]
This general applause and cheerful shout
Argue your wisdom and your love to Richard. --Shak.
[1913 Webster]
5. Having a relation to all; common to the whole; as, Adam,
our general sire. --Milton.
[1913 Webster]
6. As a whole; in gross; for the most part.
[1913 Webster]
His general behavior vain, ridiculous. --Shak.
[1913 Webster]
7. Usual; common, on most occasions; as, his general habit or
method.
[1913 Webster]
Note: The word general, annexed to a name of office, usually
denotes chief or superior; as, attorney-general;
adjutant general; commissary general; quartermaster
general; vicar-general, etc.
[1913 Webster]
General agent (Law), an agent whom a principal employs to
transact all his business of a particular kind, or to act
in his affairs generally.
General assembly. See the Note under Assembly.
General average, General Court. See under Average,
Court.
General court-martial (Mil.), the highest military and
naval judicial tribunal.
General dealer (Com.), a shopkeeper who deals in all
articles in common use.
General demurrer (Law), a demurrer which objects to a
pleading in general terms, as insufficient, without
specifying the defects. --Abbott.
General epistle, a canonical epistle.
General guides (Mil.), two sergeants (called the right, and
the left, general guide) posted opposite the right and
left flanks of an infantry battalion, to preserve accuracy
in marching. --Farrow.
General hospitals (Mil.), hospitals established to receive
sick and wounded sent from the field hospitals. --Farrow.
General issue (Law), an issue made by a general plea, which
traverses the whole declaration or indictment at once,
without offering any special matter to evade it.
--Bouvier. --Burrill.
General lien (Law), a right to detain a chattel, etc.,
until payment is made of any balance due on a general
account.
General officer (Mil.), any officer having a rank above
that of colonel.
General orders (Mil.), orders from headquarters published
to the whole command.
General practitioner, in the United States, one who
practices medicine in all its branches without confining
himself to any specialty; in England, one who practices
both as physician and as surgeon.
General ship, a ship not chartered or let to particular
parties.
General term (Logic), a term which is the sign of a general
conception or notion.
General verdict (Law), the ordinary comprehensive verdict
in civil actions, "for the plaintiff" or "for the
defendant". --Burrill.
General warrant (Law), a warrant, now illegal, to apprehend
suspected persons, without naming individuals.
Syn: Syn. General, Common, Universal.
Usage: Common denotes primarily that in which many share; and
hence, that which is often met with. General is
stronger, denoting that which pertains to a majority
of the individuals which compose a genus, or whole.
Universal, that which pertains to all without
exception. To be able to read and write is so common
an attainment in the United States, that we may
pronounce it general, though by no means universal.
[1913 Webster] |
Special demurrer
(gcide) | Special \Spe"cial\, a. [L. specialis, fr. species a particular
sort, kind, or quality: cf. F. sp['e]cial. See Species, and
cf. Especial.]
1. Of or pertaining to a species; constituting a species or
sort.
[1913 Webster]
A special is called by the schools a "species". --I.
Watts.
[1913 Webster]
2. Particular; peculiar; different from others;
extraordinary; uncommon.
[1913 Webster]
Our Savior is represented everywhere in Scripture as
the special patron of the poor and the afficted.
--Atterbury.
[1913 Webster]
To this special evil an improvement of style would
apply a special redress. --De Quincey.
[1913 Webster]
3. Appropriate; designed for a particular purpose, occasion,
or person; as, a special act of Parliament or of Congress;
a special sermon.
[1913 Webster]
4. Limited in range; confined to a definite field of action,
investigation, or discussion; as, a special dictionary of
commercial terms; a special branch of study.
[1913 Webster]
5. Chief in excellence. [Obs.]
[1913 Webster]
The king hath drawn
The special head of all the land together. --Shak.
[1913 Webster]
Special administration (Law), an administration limited to
certain specified effects or acts, or one granted during a
particular time or the existence of a special cause, as
during a controversy respecting the probate of a will, or
the right of administration, etc.
Special agency, an agency confined to some particular
matter.
Special bail, Bail above, or Bail to the action (Law),
sureties who undertake that, if the defendant is
convicted, he shall satisfy the plaintiff, or surrender
himself into custody. --Tomlins. --Wharton (Law Dict.).
Special constable. See under Constable. --Bouvier.
Special damage (Law), a damage resulting from the act
complained of, as a natural, but not the necessary,
consequence of it.
Special demurrer (Law), a demurrer for some defect of form
in the opposite party pleading, in which the cause of
demurrer is particularly stated.
Special deposit, a deposit made of a specific thing to be
kept distinct from others.
Special homology. (Biol.) See under Homology.
Special injuction (Law), an injuction granted on special
grounds, arising of the circumstances of the case.
--Daniell.
Special issue (Law), an issue produced upon a special plea.
--Stephen.
Special jury (Law), a jury consisting of persons of some
particular calling, station, or qualification, which is
called upon motion of either party when the cause is
supposed to require it; a struck jury.
Special orders (Mil.), orders which do not concern, and are
not published to, the whole command, such as those
relating to the movement of a particular corps, a detail,
a temporary camp, etc.
Special partner, a limited partner; a partner with a
limited or restricted responsibility; -- unknown at common
law.
Special partnership, a limited or particular partnership;
-- a term sometimes applied to a partnership in a
particular business, operation, or adventure.
Special plea in bar (Law), a plea setting forth particular
and new matter, distinguished from the general issue.
--Bouvier.
Special pleader (Law), originally, a counsel who devoted
himself to drawing special counts and pleas; in a wider
sense, a lawyer who draws pleadings.
Special pleading (Law), the allegation of special or new
matter, as distingiushed from a direct denial of matter
previously alleged on the side. --Bouvier. The popular
denomination of the whole science of pleading. --Stephen.
The phrase is sometimes popularly applied to the specious,
but unsound, argumentation of one whose aim is victory,
and not truth. --Burrill.
Special property (Law), a qualified or limited ownership
possession, as in wild animals, things found or bailed.
Special session, an extraordinary session; a session at an
unusual time or for an unusual purpose; as, a special
session of Congress or of a legislature.
Special statute, or Special law, an act of the
legislature which has reference to a particular person,
place, or interest; a private law; -- in distinction
from a general law or public law.
Special verdict (Law), a special finding of the facts of
the case, leaving to the court the application of the law
to them. --Wharton (Law Dict.).
[1913 Webster]
Syn: Peculiar; appropriate; specific; dictinctive;
particular; exceptional; singular. See Peculiar.
[1913 Webster] |
demurrer
(wn) | demurrer
n 1: (law) a formal objection to an opponent's pleadings [syn:
demur, demurral, demurrer]
2: (law) any pleading that attacks the legal sufficiency of the
opponent's pleadings
3: a defendant's answer or plea denying the truth of the charges
against him; "he gave evidence for the defense" [syn:
defense, defence, denial, demurrer] [ant: {criminal
prosecution}, prosecution] |
DEMURRER BOOK
(bouvier) | DEMURRER BOOK) Eng. law. When an issue in law is formed, a transcript is
made upon paper of all the pleadings that have been filed or delivered
between the parties, which transcript is called the demurrer book. Steph.
Pl. 95. See Paper book.
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JOINDER IN DEMURRER
(bouvier) | JOINDER IN DEMURRER. When a demurrer is offered by one party, the adverse
party joins with him in demurrer, and the answer which he makes is called a
joinder in demurrer. Co. Litt. 71 b. But this is a mere formality.
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SPEAKING DEMURRER
(bouvier) | SPEAKING DEMURRER, equity pleading. One which contains an argument in the
body of it; as, for instance, when a demurrer says, "in or about the year
1770," which is upwards of twenty years before the bill filed. 2 Ves. jr.
83; S. C. 4 Bro. C. C. 254.
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SPECIAL DEMURRER
(bouvier) | SPECIAL DEMURRER, pleading. One which excepts to the sufficiency of the
pleadings on the opposite side, and shows specifically the nature of the
objection, and the particular ground of the exception. 3 Bouv. Inst. n.
3022. See Demurrer.
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