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the same part of a bill as that to which he demurred, it was held that he thereby waived his demurrer, which was then overruled by the court." But a demurrer by one defendant was not overruled by a plea or answer filed by another. 12 Now, however, the rules declare that "no demurrer or plea shall be held bad, and overruled upon argument, only because the answer of the defendant may extend to some part of the same matter as may be covered by the demurrer or plea." 13 It has been held, under this rule, that a demurrer to the whole bill is not overruled by a plea or answer; " but the defendant may be compelled upon motion to elect between such a demurrer and the answer or plea; 15 and if he elect to stand by his demurrer, it seems that he will thereby waive his right to answer should his demurrer be overruled.16 By proceeding to an argument of the demurrer, an objection of this nature will be waived." The English courts have held, that a defendant cannot answer to the relief of a bill and demur to the discovery, unless he can rest his demurrer upon one of the recognized grounds on account of which a witness is always excused from answering 18 A demurrer which is good as to the relief will also bar the discovery; although if the bill be good for discovery but not for relief, the defendant does not prejudice a demurrer filed by him to the relief by answering as to the discovery.1 A demurrer which is good as to the discovery need not be good as to the relief.20

19

Bann. & A. 191; Eq. L. A. Soc. v. Patterson, 1 Fed. R. 126.

11 Story's Eq. Pl., § 443; Dawson v. Sadler, 1 Sim. & S. 537, 542; Langdell's Eq. Pl., § 103.

264; s. c., 9 Fed. R. 347; Orendorf v. Budlong, 12 Fed. R. 24.

17 Hayes v. Dayton, 8 Fed. R. 702,

706.

18 Dell v. Hale, 2 Y. & C. N. R. 1;

12 Dakin v. Union Pac. Ry. Co., 5 Brownsword v. Edwards, 2 Ves. Sen. Fed. R. 665. 243; Daniell's Ch. Pr. (2d Am. ed.) 605-607.

13 Equity Rule 37.

14 Hayes v. Dayton, 8 Fed. R. 702, 706. But see Crescent City L. S. Co. v. Butchers' U. L. S. Co., 12 Fed. R. 225; Adams v. Howard, 21 Off. Gaz. 264; s. C., 9 Fed. R. 347; Huntington v. Laidley, 79 Fed. R. 865; infra, § 140, note 17.

15 Adams v. Howard, 21 Off. Gaz. 264; s. C., 9 Fed. R. 347. See U. S. v. Am. Bell Tel. Co., 30 Fed. R. 523.

16 Adams v. Howard, 21 Off. Gaz.

19 Daniell's Ch. Pr. (2d Am. ed.) 604. 605; Langdell's Eq. Pl., § 103; Story's Eq. Pl., § 312; Rules 36, 37; Jeffreys v. Baldwin, Amb. 164; Hodgkin v. Longden, 8 Ves. 2; Todd v. Gee, 17 Ves. 273; French v. Hay, 22 Wall. 250.

20 Atwill v. Ferrett, 2 Blatchf. 39, 43; Heath v. Erie Ry. Co., 8 Blatchf. 348; Farmer v. Calvert Lith. Co., 1 Flippin, 228.

§ 108. Classification of demurrers to the relief.- Demurrers to the relief claim that for some reason apparent upon the face of the bill the plaintiff is not entitled to the relief prayed for in it. They are classified by Mitford, afterwards Lord Redesdale, substantially as follows: Demurrers to the relief are founded on objections to the jurisdiction; to the person; or to the matter of the bill, either in substance or in form. Demurrers to the jurisdiction are allowed either (1) because the subject of the suit is not within the jurisdiction of a court of equity; or (2) because some other court of equity has the proper jurisdiction. A demurrer of this last class is much more frequent now than formerly. For the rule, that in a superior court of general jurisdiction the presumption is that nothing shall be intended out of its jurisdiction that is not shown or intended to be so,2 does not apply to the courts of the United States, whose jurisdiction is confined to what is expressly given them by the Constitution and statutes; and must always appear upon the record. It has been held that the objection that one of two plaintiffs suing to enforce a common, not a joint right, is a citizen of the same State as a defendant, cannot be raised by a demurrer to the whole bill. Causes of demurrer to the person are: that it appears upon the face of the bill that the plaintiff has not the legal capacity to sue, either at all, as an alien enemy, or an unincorporated association suing as a corporation; or alone, as an infant, idiot, lunatic, and in some States a married woman.5 Demurrers to the substance of a bill are that it appears upon the face of the bill: (1) That the plaintiff has no interest in the subject-matter of the bill. It has been held that the objection that one of two plaintiffs has no interest in the subject-matter can be raised by a general demurrer for want of equity. (2) That the defendant is not

§ 108. Mitford's Pl., ch. 11, § 2.

2 Daniell's Ch. Pr. (2d Am. ed.) 615; Earl of Derby v. Duke of Athol, 1 Ves. Sen. 203.

3 Turner v. Bank of N. A., 4 Dall. 8; Godfrey v. Terry, 97 U. S. 171.

4 Nebraska City Nat. Bank v. Nebraska City H. G. L. Co., 14 Fed. R. 763. But see Hodge v. North Mo. R. Co., 1 Dill. 104.

a next friend was held demurrable when it did not show that the plaintiff was disabled to sue alone. West v. Reynolds, 35 Fla. 317, 17 S. R. 740. See also Wheeler & Wilson Mfg. Co. v. Filer, 52 N. J. Eq. 164; Paige v. Broadfoot, 100 Ala. 610.

6 Hodge v. North Mo. R. Co., 1 Dill. 104. But see Nebraska C. Nat. Bank v. Nebraska C. H. G. L. Co., 14 Fed.

5 Supra, §§ 31-33. A bill filed by R. 763.

answerable to him, but to some other person. (3) That the defendant has no interest in the subject-matter of the suit. (4) That the plaintiff is not entitled to the relief he prays; but if the bill show a case for some relief, and yet ask for too much or the wrong relief, it is not demurrable, provided it contain the prayer for general relief. (5) That the value of the subject-matter is beneath the dignity of the court. In England the Court of Chancery declined to interfere when the value of the matter in dispute was less than ten pounds, except in suits brought by or on behalf of charities, and under bills to obtain relief on account of fraud, or to establish a right. In the Circuit Courts of the United States the bill should show affirmatively that the matter in dispute, exclusive of interest and costs, exceeds two thousand dollars, except in certain cases for which the statutes specially provide.10 (6) That the bill does not embrace the whole matter concerning which the suit is brought, and which is capable of being immediately disposed of, so that there is danger of the defendant's being harassed with other suits about the same." (7) That there is a want of proper parties, plaintiff or defendant.12 (8) That there is a misjoinder 13 of parties plaintiff. A superfluity of defendants, not accompanied by multifariousness, is the subject of objection by those only who were improperly joined." (9) That the plaintiff's remedy is barred by length of time or laches.15 When

7 Patrick v. Isenhart, 29 Fed. R. 339; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106.

8 Daniell's Ch. Pr. (2d Am. ed.) 378, 379; Brace v. Taylor, 2 Atk. 253; Moore v. Lyttle, 4 J. Ch. (N. Y.) 183. 9 U. S. v. Pratt C. & C. Co., 18 Fed. R. 708; 24 St. at L., ch. 373. But see Sharon v. Terry, 36 Fed. R. 337.

10 See SS 15, 16.

11 Anon., 2 Ch. Cas. 164; Purefoy v. Purefoy, 1 Vern. 29; Shuttleworth v. Laycock, 1 Vern. 245; Margrave v. Le Hooke, 2 Vern. 207.

Markey v. Mutual Ben. L. I. Co., 6 Ins. L. J. 537; Wollensak v. Reiher, 115 U. S. 96.

14 Cherrey v. Monro, 2 Barb. Ch. (N. Y.) 618; Toulmin v. Hamilton, 7 Ala. 362. But see Bank v. Carrollton R. Co., 11 Wall. 624.

15 Maxwell v. Kennedy, 8 How. 210; Badger v. Badger, 2 Wall. 87, 94; Marsh v. Whitmore, 21 Wall. 185; Sullivan v. P. & K. R. Co., 94 U. S. 806; Brown v. Buena Vista, 95 U. S. 161; Godden v. Kimmell, 99 U. S. 201; National Bank v. Carpenter, 101

12 Dwight v. Central Vt. R. Co., 9 U. S. 567. For a definition of equiFed. R. 785. table laches see De Gendre v. Byrnes, 44 N. J. Eq. 372. But see Beekman v. Hudson R. W. S. Ry. Co., 35 Fed. R. 3.

13 Walker v. Powers, 104 U. S. 245; Lansdale v. Smith, 106 U. S. 391; Taylor v. Holmes, 14 Fed. R. 498;

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a bill praying an injunction to restrain the infringement of a reissued patent sets out or exhibits both the original and the reissued patent, and it appears from inspection that the sole object of the reissue was to enlarge and expand the claims of the original, and that a delay of two or three years has taken place in applying for the reissue, not explained by special circumstances giving sufficient ground for the delay; the question of laches is a question of law arising on the face of the bill, which avails as a defense, upon a general demurrer for want of equity. If it appears by the face of the bill that the case of the complainant is barred by the statute of limitations, it is demurrable." The facts which show that the delay is excusable must be set up in the bill.18 A demurrer will also be sustained where the bill shows that the plaintiff's case is repugnant to the statute of frauds.19 (10) That the bill is multifarious.20 It has been held that only such defendants as would suffer by the multifariousness can raise this objection." Or (11) that there is another suit pending between the parties for the same cause of action. Demurrers for insufficiency as to form are either: (1) That the plaintiff's place of abode is not stated; or that a compliance has not been made with any of the other requirements of Rule 20.22 (2) That the facts essential to the plaintiff's right and within his own knowledge are not alleged positively.23 (3) That the bill is deficient in certainty.24 (4) That the plaintiff does not in his bill offer to do equity, when it is the custom of the

16 Wollensak v. Reiher, 115 U. S. Life Assur. Soc. of U. S., 55 Fed. R. 96, 101. 478; supra, § 69. But see Brush El Co. v. Ball El. L. Co., 43 Fed. R. 899.

17 Godden v. Kimmell, 99 U. S. 201; National Bank v. Carpenter, 101 U. S. 567; Wisner v. Barnet, 4 Wash. 631. But see Sullivan v. P. & K. R. Co., 94 U. S. 806, 811; Doe v. Hyde, 114 U. S. 247; Philippi v. Philippe, 115 U. S. 151. A defendant to a foreclosure suit, who claimed an interest in the property, but who was not alleged to be in possession nor alleged to owe the amount of the debt, was not allowed by a demurrer to avail himself of the statute of limitations. Blair v. Silver Peak Mines, 84 Fed. R. 737.

19 Randall v. Howard, 2 Black, 585, 589. But see Chapman v. School Dist., 1 Deady, 108.

20 See §§ 71-75.

21 Atwill v. Ferrett, 2 Blatchf. 39, 44; Buerk v. Imhaeuser, 8 Fed. R. 457; Hill v. Bonaffon, 2 W. N. C. (Pa.) 356; supra, §§ 71–75.

22 Mitford's Pl., ch. 2, § 2; Rowley v. Eccles, 1 Sim. & S. 511.

23 Mitford's Pl., ch. 2, § 2; Daniell's Ch. Pr. 412, 625.

24 Taylor v. Holmes, 14 Fed. R. 498; Goldsmith v. Gilliland, 22 Fed. R.

18 Edison El. L. Co. v. Equitable 865.

court to require him to do so.25 (5) That the bill is not signed by counsel.26 (6) That the bill is not supported by an affidavit when one is necessary." A demurrer to the relief will not lie upon the ground that the bill contains irrelevant matter. The proper remedy for this is an exception for impertinence.28 Neither is a bill demurrable because indispensable parties, whom it names and against whom it prays process, have not been served with subpoenas to appear and answer.29 If any part of the relief prayed is proper the demurrer will be overruled.30

§ 109. Demurrers to the discovery.- A demurrer to the discovery claims that, for some reason apparent upon the face of the bill, the defendant should not be obliged to answer so much thereof as his demurrer covers. Professor Langdell says: "A demurrer to discovery indeed is not in its nature a demurrer at all, but a mere statement in writing that the defendant refuses to answer certain allegations in the bill, for reasons which appear upon the face of the bill, and which the demurrer points out." A defendant may thus demur because (1) his answer may subject him to a pain, penalty, or forfeiture;2 (2) that it is immaterial to the purposes of the suit; (3) that it would involve a breach of some confidence which it is the policy of the law to preserve inviolate, as a professional confidence, or one obtained in the course of a public office;" (4) that the matters of which a discovery is sought pertain ex

3

25 U. S. v. Pratt C. & C. Co., 18 Fed. SS 575-599. Perhaps, also, if it might R. 708. See § 82. disgrace him. Franco v. Bolton, 3 26 Rule 24; Dwight v. Humphreys, Ves. 368; Finch v. Finch, 2 Ves. Jr. 3 M'Lean, 104. 491, 493; Brownsword v. Edwards, 2 Ves. Jr. 243, 245; Northrop v. Hatch, 6 Conn. 361, 363.

27 Findlay v. Hinde, 1 Pet. 241, 244. 28 Pac. R. Co. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505, 522; Rule 26; supra,

$ 68.

3

Harvey v. Morris, Rep. temp. Finch, 214; Daniell's Ch. Pr. (2d Am. 29 Kilgour v. N. O. G. Light Co., 2 ed.) 636, 637. But see Pac. R. of Mo. Woods, 145.

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v. Mo. Pac. Ry. Co., 111 U. S. 505, 522.

4 Story's Eq. Pl., § 547; Gormully & Jeffery Mfg. Co. v. Bretz, 64 Fed. R. 612.

5 Greenough v. Gaskell, 1 Myl. & K. 100; Story's Eq. Pl., § 547, and cases cited.

6 Smith v. East India Co., 1 Phillips, 50; Atty.-Gen. v. London, 12 Beav. 8; Worthington v. Scribner, 109 Mass. 487, 493.

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