This motion has been been abolished in many states and, instead, any such arguments are to be made while presenting a regular defence to the claim or making a formal application to strike a statement of claim or applying for summary judgment.
Once a popular motion in British criminal trials to attempt to have an indictment thrown out by raising a formal and allegedly fatal defect in the charging document.
Indeed, in 1873, Justice Jessel in Fothergill, wrote:
"I never did approve, when at the Bar, and I do not approve now, when on the bench, of the practice of not deciding a substantial question when it is fairly raised between the parties and argued, simply because it is raised by demurrer. It is a great benefit to all parties to have the question in the case speedily and cheaply determined, and the practice of demurring ought, if possible, to be encouraged."
In a 1963 British case, one judge said:"I hope that now demurrer in criminal cases will be allowed to die naturally" (R v Deputy Chairman of Inner London Quarters Sessions).
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