DEMISE1, contracts. In its most extended signification, it is a conveyance2 either in fee, for life, or for years. In its more technical meaning, it is a lease or conveyance for a term of years. Vide Cow. L. & T. Index, h. t.; Ad. Eject. Index, h. t.; 2 Hill. Ab. 130; Com. Dig. h. t., and the heads there referred to. According to Chief Justice Gibson, the term demise strictly3 denotes a posthumous4 grant, and no more. 5 1 Whart. R. 278. See 4 Bing. N. C. 678; S. C. 33 Eng. C. L. R. 492; 2 Bouv. Inst. n. 1774, et seq.
DEMISE, persons. A term nearly synonymous with death. It is usually applied5 in England to the death of the king or queen.
DEMOCRACY, government. That form of government in which the sovereign power is exercised by the people in a body, as was the practice in some of the states of Ancient Greece; the term representative democracy has been given to a republican government like that of the United States.
DEMONSTRATION6. Whatever is said or written to designate a thing or person. For example, a gift of so much money, with a fund particularly referred to for its payment, so that if the fund be not the testator's property at his death, the legacy7 will fail; this is called a demonstrative legacy. 4 Ves. 751; Lownd. Leg. 85; Swinb. 485.
2. A legacy given to James, who married my cousin, is demonstrative; these expressions present the idea of a demonstration; there are many James, but only one who married my cousin. Vide Ayl. Pand. 130; Dig. 12, 1, 6; Id. 35, 1, 34 Inst. 2, 20, 30.
3. By demonstration is also understood that proof which excludes all possibility of error; for example, mathematical deductions9.
DEMURRAGE11, mar8. law. The freighter of a ship is bound not to detain it, beyond the stipulated12 or usual time, to load, or to deliver the cargo13, or to sail. The extra days beyond the lay days (being the days allowed to load and unload the cargo), are called the days of demurrage; and that term is likewise applied to the payment for such delay, and it may become due, either by the ship's detention14, for the purpose of loading or unloading the cargo, either before, or during, or after the voyage, or in waiting for convoy15. 3 Kent, Com. 159; 2 Marsh16, 721; Abbott on Ship. 192 5 Com. Dig. 94, n., 505; 4 Taunt17. 54, 55; 3 Chit. Com. Law, 426; Harr. Dig. Ship and Shipping18, VII.
DEMURRER. (From the Latin demorari, or old French demorrer, to wait or stay.) In pleading, imports, according to its etymology19, that the objecting party will not proceed with the pleading, because no sufficient statement has been made on the other side; but will wait the judgment20 of the court whether he is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.
2. A demurrer may be for insufficiency either in substance or in form that is, it may be either on the ground that the case shown by the opposite party is essentially21 insufficient22, or on the ground that it is stated in an inartificial manner; for the law requires in every pleading, two thing's; the one, that it be in matter sufficient; the other, that it be deduced and expressed according to the forms of law; and if either the one or the other of these be wanting, it is cause of demurrer. Hob. 164. A demurrer, as in its nature, so also in its form, is of two kinds; it is either general or special.
3. With respect to the effect of a demurrer, it is, first, a rule, that a demurrer admits all such matters of fact as are sufficiently23 pleaded. Bac. Abr. Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a demurrer, the court will consider the whole record, and give judgment for the party who, on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1, M 2; Bad. Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1 Saund. 285 n. 5. For example, on a demurrer to the replication, if the court think the replication bad, but perceive a substantial fault in the plea, they will give judgment, not for the defendant24, but for the plaintiff; 2 Wils. R. 1&0; provided the declaration be good; but if the declaration also be bad in substance, then upon the same principle, judgment would be given for the defendant. 5 Rep. 29 a. For when judgment is to be given, whether the issue be in law or fact, and whether the cause have proceeded to issue or not, the court is always to examine the whole record, and adjudge for the plaintiff or defendant, according to the legal right, as it may on the whole appear.
4. It is, however, subject to, the following exceptions; first, if the plaintiff demur10 to a plea in abatement25, and the court decide against the plea, they will give judgment of respondeat ouster, without regard to any defect in the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172 Secondly26, the court will not look back into the record, to adjudge in favor of an apparent right in the plaintiff, unless the plaintiff have himself put his action upon that ground. 5 Barn. & Ald 507. Lastly, the court, in examining the whole record, to adjudge according to the apparent right, will consider the right in matter of substance, and not in respect of mere27 form, such as should have been the subject of a special demurrer. 2 Vent28. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer upon a demurrer, or pleading over when an issue in fact is offered, is a discontinuance. Salk. 219; Bac. Abr. Pleas, N 2.
6. Demurrers are general and special, and demurrers to evidence, and to in
terrogatories.
7. - 1. A general demurrer is one which excepts to the sufficiency of a previous pleading in general terms, without showing specifically the nature of the objection; and such demurrer is sufficient, when the objection is on matter of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr. Pleas, N 5; Co. Lit. 72 a.
8. - 2. A special demurrer is one which excepts to the sufficiency of the pleadings on the,opposite side, and shows specifically the nature of the objection and the particuIar ground of exception. Co. Litt. 72, a.; Bac. Abr. Pleas, N 5.
9. A special demurrer is necessary, where it turns on matter of form only; that is, where, notwithstanding such objections, enough appears to entitle the opposite party to judgment, as far as relates to the merits of the cause. For, by two statutes30, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed with a view to the discouragement of merely formal objections, it is provided in nearly the same terms, that the judges "shall give judgment according to the very right of the cause and matter in law as it shall appear unto them, without regarding any imperfection, omission31, defect or want of form, except those only 'Which the party demurring32 shall, specifically. and particularly set down and express, together with his demurrer, as the causes of the same." Since these statutes, therefore, no mere matter of form can be objected to on a general demurrer; but the demurrer must be in the special form, and the objection specifically stated. But, on the other hand, it is to be observed, that, under a special demurrer, the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies33, but also of all objections in substance, or regarding the very right of the cause, (as the statute29 expresses it.) as under those statutes, need not be particularly set down. It follows, therefore, that unless the objection be clearly of the substantial kind, it is the safer course, in all cases, to demur specially34. Yet, where a general demurrer is plainly efficient, it is more usually adopted in prctice; because the effect of the special form being to apprise35 the opposite party more distinctly of the nature of the objection, it is attended with the inconvenience, of enabling him to prepare to maintain his pleading by argument, or of leading him to apply the earlier to amend36. With respect to the degree of particularity, with which, under these statutes, the special demurrer must assign the ground of objection, it may be observed, that it is not sufficient to object, in general terms, that the pleading is "uncertain, defective37, and informal," or the like, but if is necessarily to show in what, it respect, uncertain, defective, and informal. 1 Saund. 161, n. 1, 337 b, n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.
10.- 3. A demurrer to evidence is analogous38 to a demurrer in pleading; the party from whom it comes declaring that he will not proceed, because the evidence offered on the other side, is not sufficient to maintain the issue. Upon joinder in demurrer, by the opposite party, the jury are, in general, discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being entered on record, is afterwards argued and decided39 by the court in banc; and the judgment there given upon it, may ultimately be brought before a court of error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2, §47 United States Dig. Pleading, Viii.
11. - 4. Demurrer to interrogatories. By this phrase is understood the reasons which a witness tenders for not answering a particular question in interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a demurrer, which admits the facts stated, for the purpose of taking the. opinion of the court but by an abuse of the term, the witness objection to answer is called a demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12. The court are judicially40 to determine their validity. The witness must state his objection very carefully, for these demurrers are held to strict rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. & J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com. Dig. Pleader, Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1 Chit. Pl. 639-649 Bouv. Inst. Index, h. t.
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