Definition
A speaking demurrer is a pleading device — historically available in equity practice — by which a defendant challenged the sufficiency of the plaintiff's bill (complaint) while simultaneously introducing new facts not appearing on the face of that bill. The new matter was offered as the very basis for the demurrer, meaning the demurring party asked the court to consider facts beyond the pleadings to sustain the challenge.
The term distinguishes this device from a general or special demurrer, which tests only what is already alleged. A speaking demurrer effectively says: "Even taking your bill as written, and adding these additional facts which you did not allege, your case still fails — or, alternatively, these outside facts defeat your claim at the threshold." Courts of equity generally disfavored speaking demurrers because they collapsed the boundary between a demurrer (a pure question of law on the pleadings as presented) and an answer (which introduces factual matters). In most circumstances, new matter had to be raised by plea or answer, not by demurrer.
Common Confusion
SPEAKING DEMURRER vs. GENERAL DEMURRER vs. SPECIAL DEMURRER: A general demurrer challenges the overall legal sufficiency of a pleading without specifying defects. A special demurrer identifies specific technical defects in form or substance. A speaking demurrer does neither exclusively — it reaches outside the four corners of the pleading to import new facts. The confusion arises because all three are labeled "demurrers" and all attack the pleading before an answer on the merits, but only the speaking demurrer introduces extrinsic matter, which is precisely what courts penalized as improper. Researchers reading older equity cases must not treat these terms as interchangeable; the court's ruling on whether a demurrer was "speaking" often determined whether it would be entertained at all.
SPEAKING DEMURRER vs. PLEA IN EQUITY: A plea in equity was the proper vehicle for raising new affirmative matter in bar or abatement of a bill. Where a defendant mistakenly packaged new facts as a demurrer rather than a plea, the court would typically disallow the demurrer on grounds that it was speaking — i.e., improperly attempting to plead while demurring. The distinction between these two devices is central to understanding equity procedure in pre-code courts.
Why It Matters in Research
This term belongs almost entirely to the pre-code equity pleading era. Researchers will encounter it primarily in English Chancery cases, antebellum American equity decisions, and state court equity practice before the adoption of the Field Code (1848) and its successors. After code pleading merged law and equity, and after the Federal Rules of Civil Procedure (1938) replaced demurrers with motions to dismiss, the speaking demurrer effectively became obsolete as a formal category.
Several traps for the historical researcher:
First, the term is not uniformly defined across sources. Rapalje & Lawrence's entry is garbled in the surviving text and offers no usable definition; researchers should not rely on it for this term. Black's first edition and Bouvier's are the authoritative historical sources here, and they agree on the core definition.
Second, the cases cited in Bouvier's (4 Bro. C.C. 254; 2 Ves. 83; 4 Paige Ch. 374; 85 Ala. 589) are English Chancery and New York and Alabama equity reports — a useful trail into how American and English equity courts policed the boundary between demurrer and plea. Researchers tracing doctrine should begin there.
Third, the concept has a partial modern echo. Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, motions to dismiss are generally limited to the pleadings, and courts continue to use the phrase "speaking motion" (analogous to "speaking demurrer") when a movant improperly imports extrinsic evidence into what should be a pleadings-only challenge. When this happens, courts typically convert the motion to one for summary judgment under Rule 12(d) or simply refuse to consider the outside material. Researchers connecting historical equity practice to modern federal procedure will find the speaking demurrer concept alive in this converted form.
Fourth, jurisdictional survival varied. Some states retained demurrer practice well into the twentieth century; others abolished it early. A case from 1905 Alabama or New York equity may treat speaking demurrers very differently from a contemporaneous federal case.
Historical Dictionary Support
Black's first edition and Bouvier's are in close agreement: a speaking demurrer is one that "alleges new matter in addition to that contained in the bill as a cause for demurrer." Both cite overlapping English Chancery authority, suggesting the definition was settled in equity practice by the mid-nineteenth century. Black's second edition offers no independent definition, redirecting readers to the general demurrer entry — an editorial choice that reflects the term's declining practical importance by the time of that edition.
Rapalje & Lawrence's entry is corrupted in the available text and cannot be relied upon. What survives suggests the entry conflated "speaking" with some discussion of parliamentary speakers — almost certainly a printing or compilation error. Researchers should treat Rapalje & Lawrence as non-authoritative for this term.
What the historical dictionaries do not address: the procedural consequences of filing a speaking demurrer. Sources are silent on whether courts struck the demurrer, allowed it to stand as a plea, or dismissed it outright. Case law — not the dictionaries — supplies this doctrinal content.
Jurisdictional Note
The speaking demurrer was a creature of equity pleading and therefore had no direct analog in common law courts, which used demurrers differently. In American jurisdictions that retained distinct equity courts longest (notably New York, New Jersey, and Alabama), the doctrine received more sustained development. Modern application is indirect: federal and state courts invoking the concept today do so by analogy when ruling on the scope of materials a court may consider on a motion to dismiss.