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Adonis autumnalis Explained

Adonis autumnalis at English => English (Websters 1913) Of Explained:

, 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.
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