First Page
1136
Abstract
Demurrer: The Tennessee cases reiterate the orthodox proposition that a demurrer admits the facts alleged or averred in the pleading to which it is interposed.' It is perhaps unnecessary to note that this proposition is true only when the problem concerns the sufficiency of the allegations or averments in the pleading. In truth, the demurrer is merely a default as to the facts and a tender of issue on the law. If the demurrer is overruled and the action is for unliquidated damages, the plaintiff's averment as to the amount of the damages is not taken as true; he must prove the amount. And if the demurrer to the declaration is overruled and the defendant then answers by a denial, the fact that he has previously demurred is not receivable in evidence against him as an admission. The rule as to the effect of a demurrer is applicable to bills in equity as well as to declarations at law. But the admission "is strictly confined to the facts. It does not admit any matters of law suggested in the bill, or inferred from the facts stated.
Recommended Citation
Edmund M. Morgan,
Procedure and Evidence,
6 Vanderbilt Law Review
1136
(1953)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol6/iss5/16