CHAPTER VIII.

DEMURRERS.

§ 105. Definition and general characteristics of a demurrer. A demurrer is a pleading which admits the truth of a bill, but claims that the defendant should be excused from answering thereto and the complainant be denied relief on account of some irregularity or insufficiency existing in it. As the name denotes, demurrers were borrowed from the common law. They are so termed because the defendant demoratur, or will go no farther. A speaking demurrer is one that introduces a new fact or averment which is necessary to support the demurrer, and does not appear distinctly on the face of the bill. Such a demurrer is always bad, and will be overruled. But in order to constitute a speaking demurrer, the fact or averment introduced must be one which is necessary to support the demurrer and is not found in the bill; the introduction of immaterial facts, or averments, or of arguments, is improper, but constitutes mere surplusage and will not vitiate the demurrer. A demurrer is also bad if it relies for its support upon averments in an answer. A demurrer must not be addressed to a point within the discretion of the court; if so, it will be overruled.' It has been held that when the bill shows that a defendant is not an inhabitant of the district that defect may be raised by demurrer. A demurrer cannot reg

$105. 1 Langdell's Eq. Pl., §§ 53, 92. 2 Daniell's Ch. Pr. (5th Am. ed.) 543; 3 Bl. Com. 314.

Edsell v. Buchanan, 4 Brown Ch. C. 254; Davies v. Williams, 1 Simons, 5, 7; Lamb v. Starr, Deady, 350; Daniell's Ch. Pr. (2d Am. ed.) 656, note 2; Story's Eq. Pl., § 448.

4 Esdell v. Buchanan, 4 Brown Ch. C. 254; Story's Eq. Pl., § 448; Daniell's Ch. Pr. (2d Am. ed.) 656, note 2. 5 Daniell's Ch. Pr. (2d Am. ed.) 657;

ularly be filed to an answer, nor to a plea. The propriety of issuing the writ of ne exeat cannot be questioned by a demurrer.11

§ 106. Admissions by a demurrer.- A demurrer admits the truth of the allegations of fact in the bill.1 "As a matter of construction of an ambiguous clause, the court is bound to adopt that interpretation which is least favorable to the plaintiff; but the defendant is not entitled to press this principle so far as to draw any inferences of fact he pleases which may happen to be not inconsistent with the averments of the bill." It has been said that “reasonable presumptions are admitted by demurrer as well as the matters expressly alleged." The court will not infer from an allegation that a fraud was committed at a time beyond the limit of the Statute of Limitations, that the fraud was then discovered. "A demurrer only admits facts well pleaded; it does not admit matters of inference and argument, however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms, nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer." "Though the authorities are by no means unanimous, the weight of opinion

9 Crouch v. Kerr, 38 Fed. R. 549; Grether v. Wright (C. C. A.), 75 Fed. R. 742; infra, §§ 147, 153.

10 Zimmerman v. So Relle, 80 Fed. R. 417. See MacVeagh v. Denver C. W. Co., 85 Fed. R. 74; Griswold v. Bacheller, 77 Fed. R. 857; infra, § 140. 11 Shainwald v. Lewis, 69 Fed. R. 487; infra, § 263.

§ 106. Bailey v. Birkenhead, L. & C. J. Ry. Co., 12 Beav. 433, 443; Pac. R. Co. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505, 522; Boyer v. Boyer, 113 U. S. 689, 701.

2 Sir Page Wood, V. C., in Simpson v. Fogo, 1 J. & H. 18, 23; s. c., 6 Jur

ist (N. S.), 949. See Union Pac. Ry. Co. v. Mercer, 28 Fed. R. 9.

3 Clifford, J., in Amory v. Lawrence, 3 Clifford, 523, 526.

4 Sheldon v. Keokuk N. L. P. Co., 8 Fed. R. 769, 777; Johnson v. Powers, 13 Fed. R. 315; Jones v. Slawson, 33 Fed. R. 632, 636.

5 Field, J., in Dillon v. Barnard, 21 Wall. 430, 437, 438. See also s. c., 1 Holmes, 386; U. S. v. Ames, 99 U. S. 35, 45; Cornell v. Green, 43 Fed. R. 105, 107; Interstate L. Co. v. Maxwell L. Co., 139 U. S. 569. Where deeds and other written instruments were set out in a pleading, from which

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is in favor of the proposition that where profert is made of a recorded paper it is for all purposes presented to the court as a part of the pleading, and an objection thereto may be taken by demurrer." A demurrer does not admit conclusions of law; and in the construction of the bill upon the argument they may be disregarded. Such, for example, are the allegations that a tax is "unreasonable and excessive," without the statement of any valid reasons for so considering it; that a fee charged by an ordinance styling it wharfage "is not real wharfage, but a duty on tonnage." "The words 'fraud' and 'conspiracy' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another they have no more effect than other words of unpleasant signification." 10 The words "fraudulently," "deceitfully," and "by mistake" are conclusions of law, and will be disregarded." Averments that what was done

a certain inference as to their legal effect might plausibly be drawn, but it was alleged as a fact that a reason existed for their execution which would justify a different inference as to their legal effect, it was said that it could not be held on demurrer that the former inference should, and the latter should not, be drawn, but proof must be adduced to show the actual facts which determine the proper effect of the instruments. Smith v. Glasgow Ins. Co. (C. C. A.), 74 Fed. R. 332.

6 Coxe, J., in Bogart v. Hinds, 25 Fed. R. 484, citing Knott v. Burle son, 2 G. Greene (Iowa), 600; Wilder v, McCormick, 2 Blatchf. 31, 35; Grahame v. Cooke, 1 Cranch, C. C. 116; Douglass v. Rathbone, 5 Hill (N. Y.), 143; Rantin v. Robertson, 2 Strobh. Law (S. C.), 366; 1 Chitty's Pl. 415, 416. So held of patents and reissued patents by Coxe, J., in International T. C. L. Co. v. Maurer, 44 Fed. R. 618, 619; Enterprise Mfg. Co. v, Snow, 67 Fed. R. 235; U. S. Credit S. Co. v. Am. Credit Co., 53 Fed. R. 818; Germain v. Wilgus, 67 Fed. R.

597; Heaton P. B. F. Co. v. Schlochter meyer, 69 Fed. R. 592. But see Indurated F. Ind. Co. v. Grace, 52 Fed. R. 124, 128: supra, §§ 77, 78. In Ulman v. Jaeger, 67 Fed. R. 980, 982, held, that exhibits filed with a bill are upon a demurrer to be read as part of the bill. Contra, held under Code practice in Penrose v. Pac. Mut. L. I. Co., 66 Fed. R. 253. See Kesher v. Lyon, 40 W. Va. 161, 20 S. E R. 933.

7 Dillon v. Barnard, 21 Wall. 430; Wilson v. Gaines, 103 U. S. 417; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Louisville & N. R. Co. v. Palmes, 109 U. S. 244. 8 Packet Co. v. Catlettsburg, 105 U. S. 559.

9 Transportation Co. v. Parkersburg, 107 U. S. 691.

10 Waite, C. J., in Ambler v. Choteau, 107 U. S. 586, 591. For allegations held sufficient, see Pac. R. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505.

11 Magniac v. Thompson, 2 Wall. Jr. 209; supra, $$ 67, 69.

was "colorable," "a fraud," "a breach of trust," and "a scheme by which Blair and Taylor were to get " certain stock or shares of stock in a corporation "without paying for them," are allegations of conclusions of law, which a demurrer does not admit.1 An averment that a thing was done with the intent to defraud is an allegation of fact.13 An allegation as to the future effect of an act threatened by the defendant was held to be admitted by a demurrer.14 A demurrer does not admit a false allegation concerning a fact of which the court will take judicial notice. Thus, a demurrer does not admit the allegation that a town is in a certain county, when in fact it is in another county of which the court can take judicial notice.16 Upon a demurrer to an infringement bill the court may take judicial notice of facts within the common knowledge of persons ordinarily well informed; and it may refresh its recollection upon the subject by a reference to books published before the application, which show that the patent is void for lack of novelty, utility or patentability." But it will not apply any special knowledge which the judge may possess, 18 nor investigate the prior state of the art,19 nor even, it has been said, examine other patents mentioned in the bill,20 nor recitals as to the prior state of the art in the specifications of the letterspatent of which profert is made; 21 and in such case every doubt is resolved against the demurrer.22 A demurrer is deemed to be an admission of the allegations of the bill upon a motion on the bill and demurrer.23

12 Fogg v. Blair, 139 U. S. 118, 127. 508. See an essay by Mr. Samuel H. 13 Platt v. Mead, 9 Fed. R. 91. Fisher in 5 Yale Law J. 213.

14 St. Louis v. Knapp Co., 104 U. S. 658. In Hutton v. Joseph Bancroft & Sons, 83 Fed. R. 17, it was held that a bare allegation that certain matters "will be" done was insufficient.

15 Taylor v. Barclay, 2 Simons, 213. Compare Louisville & N. R. Co. v. Palmes, 109 U. S. 244, 252.

18 Cleveland F. Co. v. Vulcan B. Co., 72 Fed. R. 505.

19 Rowe v. Blodgett & C. Co., 87 Fed. R. 868.

20 Cleveland F. Co. v. Vulcan B. Co., 72 Fed. R. 505.

21 Indurated F. L. Co. v. Grace, 52 Fed. R. 124.

22 Drainage Constr. Co. v. Engle

16 Ross v. Fort Wayne, 63 Fed. R. wood, 67 Fed. R. 141. 466.

17 Am. Fibre Ch. Co. v. Williamson, 69 Fed. R. 247; Am. Fibre Ch. Co. v. Buckskin F. Co. (C. C. A.), 72 Fed. R.

23 Bayerque v. Cohen, McAllister, 113. As to the effect of the admission in another suit, see Kankakee, L. & M. R. Co. v. Horan, 131 Ill 288.

§ 107. Demurrers to parts of bills. A demurrer may be to the whole, or to a part of a bill, or to both the whole and separate parts of a bill. Separate demurrers may be filed for different causes to separate parts of a bill. If only a part of the bill be demurred to, the demurrer must be accompanied by a plea or answer to what remains. The defendant may demur to part, plead to part, and answer as to the residue." Such a mode of pleading is now, however, very rare; for the same defenses can usually be embraced with more convenience and safety in an answer. "If a demurrer is too general, that is, if it covers, or is applied to the whole bill, when it is good to a part only; or if it is a demurrer to a part of a bill only, but yet is not good to the full extent which it covers, but is so to a part only, it will be overruled; for it is a general rule that a demurrer (it is otherwise as to a plea) cannot be good as to a part which it covers, and bad as to the rest, and therefore it must stand or fall altogether." The court may, however, allow the defendant to' amend his demurrer upon narrowing its terms. It has been held at Circuit that an objection to an immaterial allegation in a bill should be taken by exception and not by demurrer. The equity rules, changing the former practice, now provide that "no demurrer or plea shall be overruled upon argument, only because such demurrer or plea shall not cover so much of the bill as it might by law have extended to." 10 Formerly, when a defendant filed a plea or answer to

107. Equity Rule 32.

Heath v. Erie Ry. Co., 8 Blatchf. 347;

2 Int. T. C. Lumber Co. v. Marner, Eq. Life Ass. Soc. v. Patterson, 1 Fed. 44 Fed. R. 621.

3 North v. Earl of Strafford, 3 P. Wms. 148; Roberdeau v. Rous, 1 Atk. 544; Daniell's Ch. Pr. (5th Am. ed.), 584.

4 See Story's Eq. Pl., § 442; Daniell's Ch. Pr. (5th Am. ed.) 583. 5 Equity Rule 32.

Equity Rule 39. 7Story's Eq. Pl., § 443; Metcalf v. Hervey, 1 Ves. Sen. 248; Verplank v. Caines, 1 J. Ch. (N. Y.) 57; Higinbotham v. Burnet, 5 J. Ch. (N. Y.) 184; Atwill v. Ferrett, 2 Blatchf. 39; Brandon Mfg. Co. v. Prime, 14 Blatchf. 371; s. c., 6 Bann. & A. 191;

R. 126.

8 Baker v. Mellish, 11 Ves. 70; Gregg v. Legh, 4 Madd. 192, 207; Atwill v. Ferrett, 2 Blatchf. 39, 49; N. P. R. Co. v. Roberts, 42 Fed. R. 734.

9 Stonemetz P. M. Co. v. Brown F. M. Co., 46 Fed. R. 72; Stirrat v. Excelsior Mfg. Co., 44 Fed. R. 142; supra, § 68.

10 Equity Rule 36, which follows the 36th Order in Chancery of August, 1811. See, however, Dell v. Hale, 2 Y. & C. N. R. 1; Atwill v. Ferrett, 2 Blatchf. 39; Heath v. Erie Ry. Co., 8 Blatchf. 347; Brandon Mfg. Co. v. Prime, 14 Blatchf. 371; & c., 3