Duhaime's Law Dictionary


Demurrer Definition:

A mostly obsolete motion put to a trial judge after the plaintiff has completed his or her case, in which the defendant, while not objecting to the facts presented, and rather than responding by a full defence, asks the court to reject the petition right then and there because of a lack of basis in law or insufficiency of the evidence.

Related Terms: Directed Verdict

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).

In Fazal, Master Hanebury of the Court of Queen’s Bench of Alberta wrote, at ¶7-9:

"Rule 129 (permitting the striking of a claim) and similar rules in other provinces result from a codification of the court’s inherent jurisdiction to stay actions that are an abuse of process or that disclose no reasonable cause of action.

"This codification occurred first in England after the enactment of the Supreme Court of Judicature Act, 1873, and the advent of the new Rules of the Supreme Court in 1883. Before this legislation the courts relied on their inherent authority to ensure that the court process was not used to harass parties by the filing of actions that were clearly without merit.

"Prior to 1873 a demurrer was available to challenge a statement of claim. Pursuant to a demurrer a defendant could admit all of the facts in the statement of claim and allege that these facts were not sufficient in law to support the plaintiff’s case. The matter then went immediately to argument.

"However, judges became reluctant to provide answers to the points of law raised, with the result that an easier summary process was developed to dismiss an action that was clearly groundless."

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