Definition
A general demurrer is a pleading device by which a party challenges the legal sufficiency of an opponent's pleading on substantive grounds — arguing that even if every alleged fact is taken as true, the pleading fails to state a legally cognizable claim or defense. Unlike a special demurrer, which targets technical defects in the form or manner of pleading, a general demurrer goes to the heart of the matter: the opposing party simply has no legal case, whatever the facts.
In practice, a general demurrer says: "Assume everything you've alleged is true. You still lose as a matter of law." The court does not weigh evidence or resolve factual disputes — it asks only whether the pleading, on its face, discloses a legally sufficient cause of action or defense.
Common Confusion
GENERAL DEMURRER vs. SPECIAL DEMURRER: These are the two primary demurrer types, and the distinction is critical. A general demurrer attacks substance — the pleading fails to state a legally valid claim. A special demurrer attacks form — the pleading is defective in structure, certainty, or technical compliance, but the underlying claim may be sound. In many jurisdictions, failure to raise a special demurrer waived the formal objection; failure to raise a general demurrer could be raised at any stage because substantive legal insufficiency was considered non-waivable. Researchers conflating the two will misread historical pleading records.
GENERAL DEMURRER vs. MOTION TO DISMISS: In modern federal practice and most reformed state systems, the demurrer has been abolished and replaced by the motion to dismiss for failure to state a claim (Federal Rule of Civil Procedure 12(b)(6)). Functionally, a 12(b)(6) motion is the successor to the general demurrer. The terms are not interchangeable across time — using modern dismissal doctrine to interpret historical demurrer practice, or vice versa, introduces anachronism.
Core Elements
A general demurrer was properly interposed when:
1. ADMISSION OF FACTS: The demurring party concedes, for purposes of the demurrer only, that all well-pleaded facts in the opponent's pleading are true.
2. LEGAL INSUFFICIENCY: Those admitted facts, even fully credited, fail to establish a legally cognizable cause of action or defense under applicable law.
3. SUBSTANCE, NOT FORM: The objection goes to the intrinsic merit of the pleading — not to ambiguity, redundancy, misjoinder, or other technical defects (which are the domain of the special demurrer).
4. GENERAL TERMS: The demurrer is framed without specifying the precise nature of the objection, distinguishing it from the particularized objections of a special demurrer.
Why It Matters in Research
PLEADING-ERA SOURCES: The general demurrer is a creature of common law pleading and reached its fullest development in the era of strict pleading practice — roughly the seventeenth through nineteenth centuries. Researchers working with English common law materials, early American case law, or pre-code state practice will encounter it constantly. It operated under rules that have no direct modern equivalent, and the procedural stakes (including waiver rules) differed sharply from modern motion practice.
THE CODE PLEADING TRANSITION: The Field Code of 1848 in New York, and its successors in other states, formally abolished the demurrer in its classical form and replaced it with the "objection that the complaint does not state facts sufficient to constitute a cause of action." Many states retained the demurrer label while altering its substance. Researchers must determine which system governed at the time of the source material — classical common law pleading, code pleading, or modern rules-based pleading — before applying any demurrer doctrine they encounter.
CALIFORNIA SURVIVAL: California is the most significant jurisdiction where the general demurrer survived the adoption of code pleading and persists to the present day under that name (California Code of Civil Procedure § 430.10). California cases and treatises using "general demurrer" in a modern context are not anachronistic — they reflect live procedural law. Researchers moving between California materials and federal or other state materials must not assume terminological equivalence.
WAIVER TRAPS: At common law, the general demurrer's reach to substantive legal insufficiency meant it generally could not be waived by proceeding to trial. Special demurrers, by contrast, were often waived if not timely raised. A historical court's discussion of waiver in the demurrer context is meaningless without first determining which type of demurrer is at issue.
CORPUS NAVIGATION: In Law Mind sources, general demurrer entries and discussions cluster in pleading-focused treatises and early American and English case reporters. Cross-reference with demurrer (general), special demurrer, and the pleading sections of Blackstone and Chitty for the doctrinal infrastructure underlying any specific instance.
Historical Dictionary Support
Black's and Burrill are in near-verbatim agreement on the definition, both citing Stephen on Pleading (140–142) and Chitty on Pleading (Vol. 1, 663) as their authorities. This is noteworthy: both dictionaries are drawing from the same mid-nineteenth-century English pleading treatises, confirming that the doctrine was largely uniform across English and early American common law. Bouvier's entry is truncated in the available source (directing the reader to the main "Demurrer" entry), which is a common Bouvier structure for subordinate terms — researchers should consult the parent entry.
None of the three historical dictionaries address the code pleading transition, the California survival, or the modern 12(b)(6) analog. This is an expected gap given their publication dates, but it means historical dictionary definitions are incomplete guides for any source material generated after the mid-nineteenth century without supplementation.
Jurisdictional Note
The general demurrer is functionally obsolete in federal courts and most states that have adopted rules-based pleading modeled on the Federal Rules of Civil Procedure. California is the primary jurisdiction where both the term and the substantive doctrine remain in active use. Researchers should treat any demurrer practice after approximately 1938 (the year the Federal Rules took effect) as jurisdiction-specific.