Definition
A special demurrer is a formal objection to an opposing party's pleading that challenges not the legal sufficiency of the substance alleged, but rather a defect in the form or manner of the pleading. Unlike a general demurrer—which argues that the pleading fails to state a cause of action or defense even if everything alleged is accepted as true—a special demurrer must identify with particularity the specific formal defect being challenged: ambiguity, uncertainty, redundancy, misjoinder, want of proper parties, or similar technical failures in the structure or expression of the pleading rather than in its underlying legal theory.
The requirement of specificity is the defining feature. A party filing a special demurrer cannot simply object that the pleading is defective; the demurrer must state the precise nature of the fault and the grounds for the exception. This requirement serves both to give the pleading party fair notice of what must be corrected and to distinguish the objection from a general demurrer challenging substantive legal adequacy.
Common Confusion
Special demurrer and general demurrer are frequently conflated in historical sources and in jurisdictions that retained demurrer practice into the twentieth century. The distinction is consequential: a general demurrer attacks the legal merits of the pleading (no valid claim or defense stated, even assuming all facts true); a special demurrer attacks only formal or technical deficiencies in how the pleading is constructed. A court that overrules a general demurrer has found a cognizable legal theory; a court that overrules a special demurrer has found the form adequate, leaving the substantive merits untouched. In practice, overruling a special demurrer rarely prevents the demurring party from later challenging the substance. Researchers should not read an overruled special demurrer as a merits ruling.
Why It Matters in Research
The special demurrer is primarily a historical research term. Its practical significance was abolished in England by the Common Law Procedure Act 1852, which eliminated formal demurrers for defects of form, replacing them with applications to a judge. In the United States, the Federal Rules of Civil Procedure (1938) effectively displaced demurrer practice at the federal level by substituting the motion to dismiss under Rule 12. Many states followed, though the timeline varies significantly. Researchers working in pre-reform American or English case law will encounter special demurrers frequently; researchers in modern litigation will encounter them only in states that preserved older pleading codes.
The key navigational trap is jurisdictional and temporal: demurrer vocabulary persisted in some state courts long after federal reform, and the labels "special" and "general" were not always used consistently across jurisdictions or even within a single jurisdiction across time. A "special demurrer" in one state's 1880 reports may describe something functionally different from the same term in another state's 1910 reports. Read the surrounding procedural context carefully.
When researching a historical case, a special demurrer in the record signals a dispute about the adequacy of pleading form, not a substantive legal battle. It may indicate the demurring party lacked confidence in a general demurrer on the merits, or was strategically forcing the opponent to replead with greater precision. The disposition of a special demurrer can affect how courts interpreted the scope of issues actually in dispute at trial.
For corpus researchers: special demurrer entries connect naturally to the broader demurrer cluster and to historical pleading doctrine. Any source discussing common law pleading practice—Chitty on Pleading, Stephen on Pleading (cited by Burrill), or Gould on Pleading—will provide the procedural architecture within which the special demurrer operated.
Historical Dictionary Support
The four source dictionaries converge on the core distinction between formal and substantive objection, though they vary in depth. Black's, drawing on Bouvier's Institutes, emphasizes the specificity requirement—the objecting party must show the nature of the objection and the particular ground of exception. Burrill similarly grounds the definition in defect of form specially set forth, pointing researchers to Stephen on Pleading and Mansel on Demurrer as the authoritative treatise sources.
Rapalje & Lawrence adds the most historically useful detail: the explicit note that England abolished the special demurrer by the Common Law Procedure Act 1852, section 251, and that defects formerly addressed by special demurrer were thereafter handled by judicial application. This is an important marker for dating research—any English case after 1852 would not feature a special demurrer as such.
Bouvier's entry as captured here is incomplete (truncated to a cross-reference), which is a known limitation of some Bouvier's editions in the corpus. Researchers relying on Bouvier's should locate the full DEMURRER entry for the complete treatment.
None of the historical dictionaries address the American procedural reform story or the transition to notice pleading, which is expected given their publication dates. Modern context must be supplied independently.
Jurisdictional Note
Special demurrer practice survived in several American states well into the twentieth century, particularly in states that retained code pleading rather than adopting notice pleading modeled on the Federal Rules. California, for example, preserved a statutory special demurrer under its Code of Civil Procedure for objections including uncertainty, ambiguity, and unintelligibility. Researchers should check each state's procedural history before assuming federal reform dates apply.