demurrer ore tenus:
n. (1838)
1. A demurrer made orally at the time of argument in support of a demurrer of record, pointing out the defect in the pleading to which it is addressed. Wetherell v Eberle, 123 Ill 666, 14 NE 675.
1. A demurrer in the form of an objection to evidence on the ground that the complaint, declaration, or petition fails to state a cause of action. Cleveland v Bateman, 21 NM 675, 158 P 648. [1]
1. An oral demurrer. See ORE TENUS.
ore tenus:
adv. & adj,
[Latin “by word of mouth”]
(17c)
l. Orally; by word of mouth: VIVA VOCE <pleading carried on ore tenus>. [2]
Excerpt from William Blackstone’s Commentaries on the Laws of England (1768):
“Pleadings are the mutual altercations between the plaintiff and defendant; which at present are set down and delivered into the proper office in writing, though formerly they were usually put in by their counsel ore tenus, or viva voce in court, and then minuted down by the chief clerks, or prothonotaries; whence in our old law French the pleadings are frequently denominated the parol.” [3]
prothonotary:
(pro-thon’o-ta-ri)
1. A clerk of court, particularly a chief or principal clerk. A ministerial officer of the court, having the custody of its records and seals, with power to certify to the correctness of transcripts from such records, and possessing authority to perform certain acts of a judicial nature incidental to his ministerial duties. [1]
ore tenus:
(second definition)
2. Made or presented orally <ore tenus evidence>. [2]
Excerpt from Edwin E. Bryant’s The Law of Pleading Under the Codes of Civil Procedure (2d ed. 1899):
“The codes either expressly or by implication require all pleadings to be in writing. To this proposition there is the apparent exception that objections to the jurisdiction of the court, or to the sufficiency of a pleading, that it does not state a cause of action or defence, may be raised on the trial by what is sometimes called a demurrer ore tenus (that is, orally, — by word of mouth).” [4]
References:
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[1]: Ballantine’s Law Dictionary with Pronunciations
Third Edition by James A. Ballantine (James Arthur 1871-1949). Edited by William S. Anderson. © 1969 by THE LAWYER’S CO-OPERATIVE PUBLISHING COMPANY. Library of Congress Catalog Card No. 68-30931
[2]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[3]: 3 William Blackstone, Commentaries on the Laws of England 293 (1768).
[4]: Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 179 (2nd ed. 1899)
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Back to Types of Demurrers
Historical Pleadings Not Included or that were Replaced within the Federal Rules of Procedure
Legal Precepts Adopted (from Europe) into The U.S. Constitution
§ § of Law Embedded into the Constitution Pursuant to the American Revolution
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