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Vanderbilt Law Review

First Page

1071

Abstract

Demurrer: Demurrers are not favored in Tennessee. The pleading to which a demurrer is interposed is construed most favorably to the pleader. For the purpose of determining the sufficiency of a pleading all properly pleaded allegations are upon demurrer taken to be true; in the usual phrasing, they are said to be admitted. Although Tennessee courts, like all others, declare that a demurrer does not admit a conclusion of law, they sometimes let it come perilously close to doing so. Thus, in an action by a bailee against his bailor for failure to return chattels in the condition in which they were bailed, an allegation that the failure was "the direct and proximate result of defendant's breach of duty" was a sufficient allegation of negligence.' Perhaps the result is due to the circumstance that the facts were within the peculiar knowledge of the bailee. But where the plaintiff sets out the facts of cohabitation with a man, now deceased, as man and wife and recognition of them as such by their friends and the public at large, the allegation that plaintiff is the widow of the deceased and "entitled to all the rights in his estate allowed widows of decedents by Tennessee Law" is a bare conclusion of law and is not admitted by demurrer.

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