When the plea prays judgment if the plaintiff ought to be answered, the replication is thus: "And the said J. N. saith that, notwithstanding any thing by the said J. S. in his said plea above alleged, he the said J. N. ought to be answered to his said writ and declaration; because he saith that" &c.: "And this he is ready to verify; wherefore the said J. N. prays judgment &c., and that the said J. S. may answer his said writ and declaration &c." And the like in other cases.

Where a replication to a plea in abatement to the writ, began thus : "And the said plaintiff saith that the said declaration ought not to be quashed;" the court held the mistake to be immaterial, and that the words "that the said declaration ought not to be quashed," might be rejected as surplusage. 1 B. & P. 60.

*CHAPTER VIII.

DEMURRER.

SECT. 1. To what Defects in Pleading, a Demurrer is applicable. 2. Form of the Demurrer and Joinder.`

3. Effect of a Demurrer.

SECT. I.-For what defects in Pleading, a Demurrer is used.

By a demurrer, the party pleading it admits the truth of all facts correctly pleaded in the preceding pleading, (vide post, s. 3,) but denies that they are sufficient to maintain the action, or (if pleaded by the plaintiff) to bar him from maintaining his action; thus referring the law arising on these facts to the judgment of the court. It may be pleaded to a declaration or count, to a plea, replication, rejoinder, surrejoinder, &c.; or to an aid prier, voucher, receit, wager of law, and the like. Co. Lit. 72 a. There cannot, however, be a demurrer to a demurrer; for it would operate as a discontinuance to the whole action. 1 Salk. 1 L. Raym. 20. Nor can either party demur after issue has been joined between them, at least without the consent of the other. 1 Show. 213. Lil. Reg. 437. 2 L. Raym. 1482.

219.

Before we enter particularly into the subject of this section, it may be necessary to notice a few rules applicable to the subject generally. And first, if a defendant demur only, and do not plead, to a declaration, his demurrer must cover the whole declaration; otherwise it will be a discontinuance of the whole. So, if he demur to part only, he must plead to the residue; otherwise it will be a discontinuance of the whole. Ante, p. 172. As, where in trespass for taking and carrying away goods, if the defendant quoad the taking demur, but say no:hing as to the carrying away, it is a discontinuance. R. Yelv. 5. So, if the plaintiff demur only, and do not reply, to the defendant's plea or pleas, the demurrer must cover the whole, otherwise it will be a discontinuance of the whole. Per Chamb. 2 Rol. 390. And therefore, if the defendant plead three pleas, and the plaintiff in his demurrer say quod placitum prædictum est minus sufficiens, it is a discontinuance. R. Yelv. 65. and see 1 Brownl. *192. Yelv. 5. And the same as to demurrers to replications, rejoinders, &c.

On the other hand, if a defendant demur to the whole declaration, and any one of the counts be good, the plaintiff shall have judgment upon that count. 1 Saund. 286. Cro. Jac. 104. 1 Wils. 248. So, in covenant, if some of the breaches be well assigned, and some not, and the defendant demur to the whole declaration, the plaintiff shall have judgment for those breaches which are well assigned. Cro. Jac. 557. 2 Saund. 380. So, if in trover for several things, the description of one of the articles be insensible or uncertain, and the defendant demur to the whole count for that reason, the plaintiff shall have judgment for the residue. 1 Salk. 218. So, in an action against the hundred, for the amount and value of money and goods of which the plaintiff was robbed, if the defendant demur to the whole count, because the goods are not specified in it, or because it is not stated whose goods they are, the plaintiff shall have judgment as to the money. R. 2 Saund. 379. Com. Dig. Pleader, C. 32, Q. 3. And where a plaintiff in scire facias demanded execution for a certain sum recovered by judgment of the King's Bench for damages and costs, with a prout patet per recordum ; and also for a certain other sum adjudged to him in the Exchequer Chamber, for his damages and costs of a writ of error, without a prout patet: the court held that, the demand being divisible, and there being no objection to the sum first demanded, but the defect (namely, the want of prout patet) being in the latter part only, a demurrer to the whole declaration was bad. II East, 565. A demurrer for misjoinder of counts, or of breaches in covenant, however, must be to the whole declaration, aud not merely to the count or breach misjoined. & S. 355.

1 M.

Where two defendants plead separately, the plaintiff cannot plead one demurrer to both pleas. 1 Leon. 139. Nor can there be one special demurrer to two or more counts, pleas, replications, &c. See 11 East, 565. Nor can a defendant demur and also plead to the same part of a declaration; a demurrer not being deemed a plea within the meaning of the stat. 4 Ann. c. 16, which allows of double pleading. Bac. Abr. Pleas, N. 1. See 11 Co. 52. 33 H. 6, 9 b, 10 a, per Prisot, But a defendant may demur to one count, and plead to another; or a plaintiff demur to one plea, and reply to another. See 2 Wils. 85. So one general demurrer may be pleaded to several counts or pleas, &c.

Where a declaration containing a good breach, also contained what was either a second breach, or a statement of special damage, and which was badly pleaded: a demurrer to the whole declaration was holden bad. Price v. Williams, 1 Tyr. & Gr. 197.

Having made these few general observations, we shall now proceed to consider in what cases a demurrer must be special, and in what cases a general demurrer will be sufficient.

General Demurrer.] A demurrer is general or special: general, where no particular cause of demurrer is alleged; special, where the particular defect is specifically pointed out, and insisted upon as the cause of demurrer. Co. Lit. 72 a. See 1 Show. 242. Comb. 297. Where the matter of objection is a defect in substance, a general demurrer is sufficient; but if it be a defect in form merely, the demurrer must be special. Doct. Pl. 119. Bac. Abr. Pleas, N. 6. If a declaration do not state a good cause of action, the defendant may *demur generally; for it is a defect in substance. Hob. 301. and see ante, p. 97. As, for instance, if a man bring an action for excluding him from the vestry room, without shewing that the parish had any right to meet there, the defendant may demur generally, because no cause of action appears. 1 Str. 624. So, if a contract declared on appear from the declaration to be illegal, and consequently void, the defendant may demur generally; because no cause of action appears. See 2 Wils. 339. And if the action be upon a bond, the illegal consideration for which appears in the condition only, if the plaintiff declare on it as a common money bond, the defendant may set out the condition on oyer, and demur generally; and the same in all cases, where the condition of the bond, if set out in the declaration, would shew that the plaintiff had no cause of action. But if the action be on a recognizance, and the declaration do not state the condition, the defendant cannot demur; for non constat but the recognizance was unconditional: but he should avail himself of the defect, by plea of nul tiel record. Barnes, 339.

In like manner, if the matter of a plea in bar be no legal answer to that part of the declaration to which it is pleaded, or if the matter of a plea in abatement be not sufficient in law to abate the action, the plaintiff may demur generally. And the same as to replications and other subsequent pleadings. But it has been decided that a defendant cannot demur in abatement; or if he do, the court will give final judgment against him, and not merely judgment of respondeas ouster. 1 Salk. 220. 6 Mod. 195. 198. Bac. Abr. Abatement, P. And where the defendant demurred to the replication, and concluded his demurrer in abatement, it was holden to be a discontinuance of the whole action. 1 Salk. 4.

It is unnecessary in this place to state more than the general rules above-mentioned; the particular instances in which a party may demur generally have been already noticed in the preceding parts of the work.

Special Demurrer.] A special demurrer, as has been already mentioned, specifies, the particular defect objected to, and insists upon it as the cause of demurrer. Anciently, when the pleadings were ore tenus at bar, the demurrer was always special; for the demurrer was argued at the same time it was pleaded. And even for a long time after the practice of pleading ore tenus ceased, it still continued customary to specify the causes of demurrer; sec 1 Vent. 240; although the only instance in which it was absolutely necessary to do so, was, in the case of a demurrer for duplicity; and which still remains the subject of a special demurrer only. 37 H. 6, 6. per Fortesc. Co. Lit. 72. 1 Ro. Rep. 112. Lutw. 4. 1 Salk. 219. 2 L. Raym. 798. 2 L. Raym. 798. 7 Mod. 71. Comb. 297. 2 Salk. 678. Hardw. 167. By stat. 27 El. c. 5, s. 1, however, the demurrer must now be special where the objection is for "any imperfection, defect or want of form in any writ, return, plaint, declaration or other pleading, process or course of proceeding whatsoever;" otherwise the court shall proceed and give judgment accord. ing as the very right of the cause and matter in law shall appear unto them, without regard had to any such imperfection &c. And since this *statute, it has been holden that a demurrer for an immaterial traverse must be special; 1 Saund. 14. (n. 2.) 1 Str. 694. 195; so a demurrer for a negative pregnant, Lil. Reg 437. 199, or to a plea because it is argumentative, Lil. Reg. 437, or because a special plea amounts to the general issue, ante, p. 180. 10 Co. 94 a. Doct. Pl. 116. Hob. 127, or for uncertainty, 1 Str. 681. 1416. Ante, p. 222. 107, for repugnancy, 1 Str. 611. or the like, must be special. So, in an action of covenant, where the declaration assigned breaches of several covenants, some affirmative,

Ante, p,

Ante, p.

2 L. Raym. Ante, p. 112,

some negative, and the defendant pleaded performance generally, the court held it to be matter of form merely, and that the demurrer should have been special. Cro. El. 691. and see ante, p. 217. And, in fine, if a sufficient cause of action appear in the count, or a sufficient answer to the preceding pleading appear in the plea &c., every other defect shall be deemed a defect in form, within the meaning of this statute, and can be the subject of a special demurrer only. Hob. 233.

After this statute of Eliz., however, it still remained doubtful in many instances whether certain defects were so in form only, or in substance. And it was therefore thought necessary to enact, by stat. 4 Ann. c. 16, that no advantage or exception shall be taken of or for an immaterial traverse; or the default of entering pledges upon any bill or declaration; or the default of alleging a profert in curia of any bond, bill, indenture or other deed mentioned in the declaration or other pleading, or of letters testamentary or letters of administration; or the omission of vi et armis or contra pacem; or the want of an averment of hoc para. tus est verificare, or huc paratus est verificare per recordum; or not alleg. ing prout putet per recordum; but the court shall give judgment according to the very right of the cause, without regarding any such omissions and defects, or any other matter of like nature, except the same shall be specially and particularly set down and shewn for cause of demurrer.

It is advised by Lord Hale, 1 Vent. 240, and Lord Coke, 2 Bulst. 267, to demur specially in all cases, and not to demur generally; and it is advisable, certainly, to demur specially in all cases where it is doubtful whether the matter of objection he a defect in substance or a defect of form merely. As to the particular instances in which a de. murrer must be special, they have already been noticed in the preceding part of this work. See Co. Lit. 72 b.

SECT. II.

The Form of a Demurrer and Joinder.

By Reg. Pl. H. 4 W. 4, I., s. 14, the form of a demurrer shall be as follows: "The said defendant, by his attorney," [or "in person,' &c., or “ plaintiff,"]"says that the said declaration" [or "plea," &c.] "is not sufficient in law;" shewing the special causes of demurrer, if any. The form of a joinder in demurrer shall be as follows: “The said plaintiff" [or "defendant"]" says that the declaration" [or " plea," &c.]" is sufficient in law."

The form of a general demurrer to a declaration, replication, or othe pleading of a plaintiff, will therefore be thus: