Page:Black's Law Dictionary (Second Edition).djvu/360

From Wikisource
Jump to navigation Jump to search
This page needs to be proofread.


DEMONSTRATIO

DEMONSTRATIO. Lat. Description; addition; denomination. Occurring often in the phrase, "Fizlsa demonslratio non Meet," (a false description does not harm.)

DEMONSTRATION. Description; pointing out. That which is said or written to designate a thing or person.

In evidence. Absolutely convincing proof. That proof which excludes all possihllily of error. Treadwell v. Vvliittier, 80 Cal. 574. 22 Psc. 266, 5 L R. A. 498, 13 Am. St. Rep. 175; Boetgeu v. Railroad Co. (Sup.) 50 N. Y. Supp. 332.

DEMONSTEATIVE LEGACY. Lnoacr.

See

DEIVLPSTER. In Scotch law. A dooms- man. one who pronounced the sentence of court. 1 How. State Tr. 937.

IDEMUR. To presentadeuiurrer; totske

an exception to the sutliclcnc-y in point of law of a pleading or state of facts alleged See Dsiuiraizss. —I)exnurrn'Iile. A pleading, petition, or the like, is said to be deniurrable when it does not state such facts as support the claim, prayer. or defense put forward. 5 Ch. Div. 979.--De- nnn-rnnt. One who demuis: the party who. in pleading. inter-poses a demurrer.

DEMURRAGE.}} In maritime law. The sum which is fixed by the contract of carriage, or which is allowed, as remuneration to the owner of a ship for the detention of his vessel beyond the number of days allowed by the charter-party for loading and unloading or for sailing. Also the detention of the vessel by the freighter beyond such time. See 3 Kent. Comm. 203; 2 Steph. Oomm. 1S5. The Apuiion. 9 Wheat. 378, 6 L Ed. 111; Fisher v. Abcel, 44 How. Prac. (N. Y.) 440: Wordln v. Benils. 32 Conn. 273. 85 -1111. Dec. 255; Cross v. Beard, 26 N. Y S5: The J. E. Owen (D. C.) 54 Fed. 185; Euikenburg V. Clark, 11 R. I. 283.

Demurrage is only an extended freight or IE- vuaril to the vessel, in C0i'I'l])uiiS'iiiDl:l for the earnings she is inrproperly caused to lose. Every improper detention of a vessel may he considered a demurrage, and compensation under that name be obtained for it. Dnnnlrlsnn V. McDowell, Holmes, 200. Fed Cas. i\o. :’ S5.

Demnri-ige is the allowance or C0m})£‘nS:itil)i‘.i due to the master or owners of a ship, by the frci 'ilCEl', for the time the vessel may have been detained beyond the time spr-tificd or implied in the contract of affreightment or the charterpartv. Bell.

DEMURRER. In pleading. The form- ai mode of disputing the suiiiciency in law of the pleading of the other side. In effect it is an allegation that, even if the facts as stated in the pleading to which ohjection is taken be true, yet their legal consqueiices are not such as to put the demui-ring party to the necessity of answering them or proceeding further with the cause. Reid v. Field, 83

352

DEMURRER

Va. 26, I S E. 395; Parish v. Sloan. 38 C. (309; Goodman v. Ford, 23 l\Iiss. 595: Hostetter Co. v. Lyons 00. (C. C.) 99 Fed. 131

An objection made by one party to his opponent's pleading, alleging that he ought not ‘to answer it, for some defect in law in the pleading. It admits the facts, and refers the law arising thereon to the court. 1 How. 581.

it imports that the uhjcciing party will not proceed, but will wait the judgnieiit of the court whether he is bound so to do. Go. I.ltL 'i'1b,' Steph. P1. 61.

In Equity. An allegation of a defenrlant Which, admitting the matters of fact alhaed by the bill to be true, shows that as they are therein set forth they are lnsulilrient for the plaintiff to proceed upon or to oblige the defendant to answer: or that, for some racism apparent on the face of the biil, or on im- count of the omission of some matter which ought to be contained therein, or for want of some circumstances which omht to be attendant thereon, the defendant ought not to be compelled to answer to the whole bill, or to some certain part thereof. Mitt’. E11. PL 107.

Classification and varieties. A neivnl demurrer is a demurrer framed in general hrlu, Wiiilollt showing specifically the nature of the objection, and “hi h is usually resorted to

nhere the oi-jeni is to matter of substance.

4., 1 Chit. Pl. 663. See livid


\. lhcld, S3 1 S. E. 395: U. S. V. National linnk (O. C.) 73 Fed. 381; llictlulr V ' a Pelt, 55 Ala. 3-14; Taylor v. 'I‘n_r..;i',

s

8' Mich. ('r1, 49 N. W. 519. A special demurrer is one which excepts to the sulhcienry of the pleadings on the opposite side, and shons specifically the nature of the objection, and the particular ground of the exuzptinn. 3 liuiiv. inst. no. 3022. Darcey v. Laike. 46 Miss. 117', Christmas v. Russell, 5 Wall. ?fl.'i. 13 L. Ed. 4 Shaw v. Uhnse, 77 Mich. -131}. 43 N. W.

883 A speaking demurrer is one which, in oriler to sustain itself, requires the aid of a fact not sppearing.on the face of the pleading ob- jectcd to, or, in_ other words, which alleges or assumes the existence of a fact not already pleaded, and which constitutes the Eround of o ' Wright v. \'Vcbcr, 17 Pa. Super. Ct Walker v. Conant. 65 Mich. 194, 31 N.

in). Clarke v. Land Co.. 113 Ga 21, 33 S E. 323. A parol demurrer (not properly a demurrer at all) was a staying of the pleaciin-,2;-; a suspension of the proceedings in iin action during the nnnage of an infant. especially in a rim] action. Now abolished. 3 Bl. Comm. iiflfl. —-Denun-rer book. in prsctice. A re’--rd of the issue on a demurrer at law, containing a transcript of the pleadings, with proper entries; and intended for the use of the court and counsel on the argument. 3 Bl Comm. EH7: 3 Staph. Comm. 5Rl.—Dem\u-rer ore tennis. This name is sometimes given to a ruling on an oh]ection to evidence, but is not prop- erly H demurrer at all. lllanilelert. v. Land Co.. 10-1 Wis. 423, 80 N. W. 72G.—Dexnnri-er to evidence. This proceeding (now practically obsolete) was analogous to a demurrer to a pleading. It was an objection or exception by one of the parties in an action at law. to the effect that the evidence which his adversary had produced was insnflicient in point of law (whether true or not) to make out his case or sustain the issue. Upon joinder in demurrer.

the jury was discharged, and the case was at