Sidebilder
PDF
ePub

2001

A SELECTION OF CASES

ON

PLEADING

WITH REFERENCES AND CITATIONS

BY JAMES BARR AMES

DANE PROFESSOR/OF LAW IN HARVARD UNIVERSITY

REPARED FOR USE AS A TEXT-BOOK IN

HARVARD LAW SCHOOL

“ Cases arise by Chance, and are many Times intricate, confused, and ob
scured, and are cast into Form and made evident, clear, and easie by good and
fair Pleading; so that this is the principal Art of Law, for Pleading is not
Talking.” — HOB. 295.

“Et saches mon fils, que est un des pluis honorables laudables et profitables
choses en nostre ley, de aver le science du bien pleader en actions reals et
personels ; et pur ceo, jeo toy counsaile especialement de metter ton courage
et cure de ceo apprender.” — Litt. Ten. Sect. 534.

CAMBRIDGE, MASS.:
THE HARVARD LAW REVIEW PUBLISHING COMPANY

1905

Entered according to Act of Congress, in the year 1905, by

- JAMES BARR AMES, In tne Uffice of the Librarian of Congress, at Washington

The Riverside Press
PRINTED BY H, O, HOUGHTON & CO.
CAMBRIDGE, MASS.

S.A.

CHAPTER 1.

DEMURRERS.

SECTION I.

General Demurrers.

NOTE.

[Coke upon Littleton, 71 6.) A demurrer cometh of the Latin word demorari to abide ; and there fore he which demurreth in law, is said, he that abideth in law : Moratur or demoratur in lege. Whensoever the learned counsel of a party is of opinion that the count or plea of the adverse party is insufficient in law, then he demurreth or abideth in law, and referreth the same to the judgment of the court."

HAITON AND OTHERS, ASSIGNEES V. JEFFREYS.

IN THE KING'S BENCH, HILARY TERM, 1715.

(Reported in 10 Modern Reports, 280.) The court was moved for leave to plead a plea, and demur to tho declaration, at the same time, upon the 4 Anne, c. 16, § 1, the words of which are," that it shall be lawful for any defendant, or tenant in any action or suit, or for any plaintiff in replevin, in any court of record, with the leave of the same court, to plead as many several 1 The concise form of a general demarrer is as follows:

State of - Co. ss. otel The defendant (or “plaintiff”] by — his attorney says that the declaration (or B "plea ") is not sufficient in law.

The demurrer was formerly very prolix. 2 Chitty (1st ed.), 678. By statute in many states the reason of the insufficiency of a pleading must be specified in the demurrer.

A demurrer is effective although informal. Leaves v. Bernard, 5 Mod. 131 (a demurrer framed as a plea). Davies o. Gibson, 2 Ark. 115 (a mere statement that “defendant demurs to the declaration of the plaintiff." But see, contra, Tooke o. Berkley, 57 Kan. 111.com

A pleading is none the less a demurrer, although described by the demurrants as a reply. Thompson v. Foss, 16 Ind. 297.

In Stokes v. Grant, 4 C. P. D. 25, the informality of a demurrer being such as to make it embarrassing, the demurrer was stricken out on motion. - ED.

« ForrigeFortsett »