Definition
To demur is to interpose a formal legal objection — specifically, to challenge the legal sufficiency of an opposing party's pleading without disputing its factual allegations. A party who demurs, in effect, concedes that the facts pleaded are true as stated but argues that those facts, even if proven, do not give rise to a cognizable legal claim or defense. The act of demurring suspends the pleading process and refers the question of legal adequacy to the court.
Demur is the verb; the formal pleading itself is the demurrer. Although the two terms are often treated interchangeably in older texts, precision requires the distinction: one demurs by filing a demurrer.
Common Language
Modern common usage (Wiktionary): To object or be reluctant; to balk or take exception, often with a mild or hesitant connotation — as in "she demurred when asked to sign."
Historical common usage (Webster's 1913): To linger, delay, or pause; to suspend judgment in view of doubt or difficulty; to scruple or object.
The gap is significant. In ordinary English, to demur suggests a polite hesitation or soft objection — tentative, informal, social. In law, to demur is a precise procedural act with defined consequences: it halts the pleading sequence, narrows the dispute to a pure question of law, and if overruled, forces the demurring party to answer or suffer judgment against them. A witness who "demurs" at a question is hedging; a defendant who demurs to a complaint is making a calculated legal argument. A researcher reading historical judicial opinions must recognize which sense is operative.
Common Confusion
Demur and demurrer are frequently collapsed in both historical and modern legal writing. To demur is the act; a demurrer is the pleading instrument through which that act is accomplished. Older English reports use demur freely where modern American practice would say demurrer, and some jurisdictions abolished the demurrer by name while preserving the functional equivalent under a different label (e.g., motion to dismiss for failure to state a claim under Federal Rule 12(b)(6)). A researcher encountering "the defendant demurred" in a nineteenth-century report should understand this as the filing of a formal demurrer, not merely an informal objection.
Why It Matters in Research
The action of demurring sits at the intersection of pleading history and jurisdictional procedure, making it one of the more treacherous verbs in the corpus.
First, the procedural context has shifted dramatically. In common law pleading — the framework governing most cases before code pleading reforms of the mid-nineteenth century — demurring was a formal, structured step in an elaborate pleading sequence. A party who demurred and lost was often barred from subsequently raising factual defenses. Under the Field Code (New York, 1848) and successor code pleading states, the demurrer was retained but simplified. Under modern notice pleading (Federal Rules of Civil Procedure, 1938), the general demurrer effectively disappeared, replaced by the Rule 12(b)(6) motion. Encountering "demur" in a source requires identifying which procedural regime governed.
Second, the parol demur — referenced in Rapalje & Lawrence — is an entirely distinct usage: a prayer that proceedings be stayed (demur = pause) until an infant heir reached majority. This archaic sense appears in debt actions against heirs and in early equity practice and has no functional modern counterpart. A researcher encountering it in pre-nineteenth-century English chancery materials should not conflate it with the pleading demurrer.
Third, the stakes of a demurrer varied by jurisdiction and era. In some systems, sustaining a demurrer ended the case entirely; in others, it granted leave to amend. Whether a sustained demurrer was with or without prejudice affects how reported outcomes should be read and cited.
Fourth, the verb form demur often appears in opinions without specifying general demurrer versus special demurrer — a distinction that determined the scope of the objection and whether the court could look beyond the pleadings.
Corpus researchers should also be alert to demur appearing in non-pleading contexts in older materials — legislative debates, diplomatic correspondence, and administrative proceedings — where it retains its common-English sense of objecting or hesitating.
Historical Dictionary Support
The three shelf sources converge on the core procedural meaning but differ in emphasis and depth.
Black's is terse: to present a demurrer; to take exception to the legal sufficiency of a pleading or state of facts. Accurate but stripped of context — characteristic of Black's entry-level treatment of procedural verbs.
Bouvier's is the most instructive of the three for understanding the working logic of the act. His formulation — "to raise an objection in point of law, and rest or pause upon it, referring its decision to the court" — captures what makes a demurrer distinctive: the party stops, holds, and asks the court to resolve a pure legal question before the pleading proceeds. The phrase "rest upon it" is significant; in classical pleading theory, both parties stood still pending the court's ruling, neither advancing new facts.
Burrill's entry is fragmentary in the excerpt provided, but the Latin-French root (demurer, demorer) points toward the temporal sense — to stay, to remain, to linger — which maps directly onto the early common-law procedural pause. This etymology, while not essential to modern research, illuminates why the parol demur (a motion to stay proceedings) and the pleading demurrer (an objection that halts the action pending legal ruling) share the same root.
None of the shelf sources adequately flag the replacement of the demurrer by the Rule 12(b)(6) motion in federal practice, nor do they address the demurrer's continued vitality in several state systems (California being the most prominent). For post-1938 federal research, these dictionary entries are historically useful but jurisdictionally incomplete.
Jurisdictional Note
The demurrer was abolished in federal civil practice with the adoption of the Federal Rules of Civil Procedure in 1938 and replaced functionally by the motion to dismiss under Rule 12(b)(6). Several states — including California — continue to use the demurrer as a named pleading. In those jurisdictions, the historical dictionary definitions remain operationally relevant, not merely antiquarian.
Encyclopedia Cross-Reference
See Law Mind Encyclopedia — Pleadings (for the procedural architecture within which demurring operated); Demurrer (for the instrument itself, general versus special forms, and consequences of ruling).