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clusively to the defendant's case; (5) according to the oid rule, because the defendant has, "in conscience, a right equal to that claimed by a person filing a bill against him, though not clothed with a perfect legal title," as, if he be a purchaser in good faith, and for a valuable consideration, without any notice of the plaintiff's claim." Where the complainant is the only person who can insist upon the penalty or forfeiture, and he waives it in his bill, he may compel a discovery. In certain cases, a defendant may be obliged to answer to a charge of a fraud which might subject him to a criminal prosecution." An English case holds that a discovery can be compelled although a defendant might thereby admit his guilt of an offense against the criminal laws of a foreign country.12 Demurrers to the discovery are now rarely filed. For the objections to the discovery do not usually appear upon the face of a bill; and when they do, it seems that, since the equity rules, they can now in all cases be taken by answer. 13 A demurrer to an interrogatory that has been already answered cannot raise the question whether the answer to it is sufficient." The subject of discovery is of much less importance now than formerly; and the curious reader is therefore referred to the works of Wigram and Hare for a full discussion of it.15

§ 110. Of what defects advantage should be taken by demurrer. Advantage can be taken of most defects in a bill by answer, as well as by demurrer. But objections to defects in the form of a bill, except possibly those which are required by the equity rules,' can only be raised by demurrer. Such are an omis

7 Bolton v. Liverpool, 1 Myl. & K. 88; Daniell's Ch. Pr. (2d Am. ed.) 645-648.

8 Daniell's Ch. Pr. (2d Am. ed.) 635, 636.

9 Jerrard v. Saunders, 2 Ves. Jr. 454; Glegg v. Legh, 4 Madd. 193; Langdell's Eq. Pl., § 188.

10 Mason v. Lake, 2 Brown, P. C. 495; Lord Uxbridge v. Staveland, 1 Ves. Sen. 56; Atwill v. Ferrett, 3 Blatchf. 39.

11 Dummer v. Chippenham, 14 Ves. 245, 251; Story's Eq. Pl., § 578; Daniell's Ch. Pr. (2d Am. ed.) 631, 632.

12 King of Two Sicilies v. Wilcox,

1 Simons (N. S.), 301. See also U. S. v. McRae, L. R. 4 Eq. 327; s. c., L. R. 3 Ch. App. 79.

13 See Rules 39, 44.

14 Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. R. 18.

15 See infra, §§ 148, 281.

§ 110. See National Bank v. Insurance Co., 104 U. S. 54, 76.

2 Daniell's Ch. Pr. (2d Am. ed.) 453; Story's Eq. Pl., §§ 453, 528: Hook v. Dorman, 1 Sim. & S. 227; Crosse v. Bedingfield, 12 Sim. 35; Findlay v. Hinde, 1 Pet. 244; Fischer V. O'Shaughnessey, 6 Fed. R. 92.

sion to allege that two defendants infringed a patent jointly," and a lack of certainty in the bill, especially as regards allegations of fraud. If the want of equity of the plaintiff's case be clearly apparent upon the face of the bill, an omission to demur may be a ground for refusing the defendant costs at the hearing. The objection that the plaintiff has an adequate remedy at law should be specifically raised in a demurrer, plea, or answer,' although the court may for its own protection dismiss a bill for this at any stage of the proceedings.

8

§ 111. When a demurrer should be filed." It shall be the duty of the defendant, unless his time shall be otherwise enlarged, for cause shown by a judge of the court upon motion for that purpose, to file his plea, demurrer, or answer to the bill in the clerk's office on the rule-day next succeeding that of entering his appearance. In default thereof, the plaintiff may at his election enter an order (as of course) in the order-book that the bill be taken pro confesso; and thereupon the cause shall be proceeded in ex parte, and the matter of the bill may be decreed by the court at any time after the expiration of thirty days from and after the entry of said order, if the same can be done without an answer and is proper to be decreed.”1 The demurrer may be filed, even after the rule-day, at any time before an order has been entered directing that the bill be taken pro confesso, or after such an order by leave of the court.3

§ 112. Title of demurrer.-A demurrer is usually entitled substantially thus: "The demurrer of John Stiles to the bill of complaint of Richard Roe." If accompanied by a plea or answer, or both, it should be called in the title "the demurrer and plea," or "the demurrer and answer," or "the demurrer,

3 Fischer v. O'Shaughnessey, 6 Fed. R. 92; Putnam v. Hollander, 6 Fed. R. 882.

4 Chicago, M. & St. P. R. Co. v. Pullman P. C. Co., 50 Fed. R. 24; Green v. Terwilliger, 56 Fed. R. 384; Thomas v. Nantahala M. & T. Co. (C. C. A.), 58 Fed. R. 485.

5 Rorback v. Dorsheimer, 25 N. J. Eq. 516, 518; Mason v. Daly, 117 Mass. 403; supra, § 69.

6 Harland v. Bankers' & M. Tel. Co., 32 Fed. R. 305.

7 Reynes v. Dumont, 130 U. S. 354;

Kilburn v. Sunderland, 130 U. S. 505; Brown v. Lake Sup. L. Co., 134 U. S. 530.

8 Lewis v. Cocks, 23 Wall. 466; Oelrichs v. Spain, 15 Wall. 211; Reynes v. Dumont, 130 U. S. 354, 395. § 111. Equity Rule 18.

2 Equity Rule 32; Oliver v. Decatur, 4 Cranch, C. C. 458.

3 Equity Rule 32; Harvey v. Richmond O. & M. Ry. Co., 64 Fed. R. 19. § 112. Daniell's Ch. Pr. (2d Am. ed.) 652.

plea, and answer." 2 When it is to an amended bill, it need not be expressed in the title to be a demurrer to both the original and the amended bill; but if designated as a demurrer to the amended bill, that will be sufficient."

§ 113. Protestation. After the title formerly followed the clause, "This defendant, by protestation, not confessing all or any of the matters and things in the said complainant's bill contained to be true in such manner and form as the same are therein set forth and alleged." This was a practice borrowed from the common law, and was probably intended to avoid conclusion in another suit; but it is a needless form, and may well be omitted.

§ 114. Statement of the extent of the demurrer. If a demurrer be not to the whole bill, it must clearly express those parts which it is designed to cover.1 "And this must be

done not by way of exception, as by demurring to all except certain parts of the bill, but by a positive definition of the parts to which the defendant seeks to avoid making any answer." A special demurrer should point out specifically by paragraph, page, or folio, or in some other distinct form of reference, the parts of the bill to which it is intended to apply.3 When the bill was long, a special demurrer "to so much of the bill as seeks" certain relief, without further specifying the part demurred to, has been held bad. A demurrer may, however, be expressed as to the whole bill except to a specified part.5

§ 115. Statement of causes of demurrer.- By the English practice a demurrer was required to contain a statement of its causes, otherwise it would be overruled.1 It is the safer prac

2 Daniell's Ch. Pr. (2d Am. ed.) 652, Daniell's Ch. Pr. (2d Am. ed.) 653, 653. 654; Story's Eq. Pl., §§ 457, 458.

3 Daniell's Ch. Pr. (2d Am. ed.) 653; Smith v. Bryon, 3 Madd. 428.

§ 113. Story's Eq., § 455, n. 3. 2 Mitford's Pl., ch. 2, § 2; Taylor v. Holmes, 14 Fed. R. 498.

Story's Eq. Pl., § 452.

§ 114. 1 Devonsher v. Newenham, 2 Sch. & Lef. 199; Chetwynd v. Lindon, 2 Ves. Sen. 450; Salkeld v. Sci. ence, 2 Ves. Sen. 107; Atwill v. Ferrett, 2 Blatchf. 39; Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. R. 18;

2 Story's Eq. Pl., § 457; Robinson v. Thompson, 2 Ves. & B. 118; Devonsher v. Newenham, 2 Sch. & Lef. 205. 3 Atwill v. Ferrett, 2 Blatchf. 39; Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. R. 18.

4 Atwill v. Ferrett, 2 Blatch. 39. 5 Hicks v. Raincock, 1 Cox, 40; Howe v. Duppa, 1 Ves. & B. 511; Daniell's Ch. Pr. (2d Am. ed.) 654.

$ 115. Langdell's Eq. Pl., § 96; Sanders' Orders, 180, 223; Duffield v.

tice for the pleader to comply with this. It was, however, said by a District Judge: "The formal statement of causes of a demurrer, though usual, is not necessary. The assertion of a general demurrer is that the plaintiff has not, on his own showing, made out a case. If the causes of demurrer are not formally set forth the plaintiff may object, and require them to be thus stated." Demurrers are either general or special. They are general when no particular cause is assigned except the usual formulary, to comply with the rules of the court, that there is no equity in the bill. Such a one is called a demurrer for want of equity. They are special when the particular defects or objections are pointed out. The former will be sufficient, although special causes are usually stated, when the bill is defective in substance. The latter is indispensable when the objection is to the defects of the bill in point of form. But under a general demurrer a defendant may take advantage of a few objections which appear to be as to matters of form. Thus, under a demurrer for want of equity, the objection that a necessary affidavit is wanting, or that the plaintiff has not offered to do equity when that is required, may be raised.5 So, may a lack of sufficient positiveness in the statement of facts in the bill, and a misjoinder of plaintiffs by the addition of one with no interest in the subject of the bill. But it has been held that a general demurrer for want of equity will not cover an objection to the discovery only. That, it was said, must be made the subject of a special demurrer. A failure to aver that the invention covered by a patent had not been previously patented or described in any printed publication is a defect which can be raised by a special, but not by a general, demurrer.10 A defendant may,

Greaves, Cary, 125; Offeley v. Morgan, Cary, 153; Peachie v. Twyecrosse, Cary, 113; Daniell's Ch. Pr. (2d Am. ed.) 655.

2 Taylor v. Holmes, 14 Fed. R. 498, 499, per Dick, D. J.

see Taylor v. Holmes, 14 Fed. R. 498, 499.

5 Daniell's Ch. Pr. (2d Am. ed.) 655. 6 Daniell's Ch. Pr. (2d Am. ed.) 655. 7 Hodge v. North Mo. R. Co., 1 Dill. 104; Hubbard v. Manhattan Tr. Co.,

3 Story's Eq. PL, § 455; Langdell's 87 Fed. R. 51. Eq. Pl., § 95.

4 Supra, § 111; Story's Eq. Pl., § 455. See also Beames' Orders in Ch. 77, 173; Mitford's Pl., ch. 2, § 2; Daniell's Ch. Pr. (2d Am. ed.) 655. But

8 Whittingham v. Burgoyne, 3 Anst. 900; Daniell's Ch. Pr. (2d Am. ed.) 656.

9 Overinan Wheel Co. v. Elliot H. C. Co., 49 Fed. R. 859; Hanlon v.

10 McCoy v. Nelson, 121 U. S. 484.

11

however, in cases where he demurs to the substance of the bill, in which term is included an apparent defect of jurisdiction, state specially the different grounds upon which he founds his objection; and, indeed, some of these grounds of demurrer seem to require a more particular statement. Thus, a demurrer for want of parties should show who are the necessary parties that have been omitted, not necessarily by name, but in such a manner as to point out to the plaintiff the objections to his bill, so that he may amend by adding the proper parties.12 But it has been said that this rule does not apply where it appears from the face of the bill that the plaintiff has sufficient information as to the names, interests, and residences of the proper parties.13 It is said by Mr. Daniell that "in the case of a demurrer for multifariousness, a mere allegation 'that the bill is multifarious' will be informal; it should state, as the ground of demurrer, that the bill unites distinct matters upon one record, and show the inconvenience of so doing." 14 But the case cited by him does not seem to hold that the more general form is bad.15 A defendant is not limited to show one cause of demurrer only; he may assign as many causes of demurrer as he pleases, either to the whole bill or to each part demurred to, and if any one of the causes of demurrer assigned hold good the demurrer will be allowed.16 When, however, two or more causes of demurrer are shown to the whole bill the court will treat it as one demurrer; and if one of the causes be considered sufficient the order will be drawn up as upon a complete allowance of the demurrer.1

§ 116. Demurrers ore tenus.—At the hearing other causes of demurrer may be assigned orally; when the defendant is

Primrose, 56 Fed. R. 600; Hutton v. Star S. S. Co., 60 Fed. R. 747; Coop v. Dr. Savage P. D. Institute, 47 Fed. R. 899; Consol. B. S. Co. v. Detroit S. & S. Co., 47 Fed. R. 894.

11 See, for example, the statement of causes for the demurrer in Pacific R. Co. of Mo. v. Mo. Pac. Ry. Co., 111 U. S. 505, 514.

12 Daniell's Ch. Pr. (2d Am. ed.) 333, 655; Tourton v. Flower, 3 P. Wms. 369; Att'y-Gen. v. Jackson, 11 Ves. 369; Dwight v. Central Vt. R. Co., 9 Fed. R. 785; Taylor v. Holmes, 14

Fed. R. 498, 499; Glens Falls Nat.
Bank v. Cramton, 72 Fed. R. 734.

13 Taylor v. Holmes, 14 Fed. R. 498, 499.

14 Daniell's Ch. Pr. (2d Am. ed.) 655. 15 Rayner v. Julian, 2 Dickens, 677; s. c. more fully reported, 5 Madd. 144, note.

16 Harrison v. Hogg, 2 Ves. Jr. 323; Jones v. Frost, 3 Madd. 9; s. c. on appeal, 1 Jacobs, 466.

17 Wellesley v. Wellesley, 4 Myl. & Cr. 554; Daniell's Ch. Pr. (2d Am. ed.) 657.