said to demur ore tenus.1 When such a demurrer only is sustained and the previously assigned causes are held bad, the defendant usually recovers no costs, and often is obliged to pay costs. But a demurrer ore tenus will, it has been said, never be allowed, unless there is a demurrer on record. Thus, when there was a plea on record, and that was disallowed, a demurrer ore tenus was also disallowed. A demurrer filed to a part cannot at the hearing ore tenus be extended to the whole of the bill; and such a demurrer is, it seems, only permitted for some cause which covers the whole extent of the demurrer filed." It is doubtful whether by a demurrer ore tenus advantage can be taken of defects in form.7

§ 117. Prayer of judgment.— A demurrer, having assigned the cause or causes of its interposition, then proceeds to demand judgment of the court whether the defendant ought to be compelled to put in any further or other answer to the bill, or to such part thereof as is specified as the subject of demurrer; and concludes with a prayer that the defendant be dismissed, or, if to a part only, that he be excused from answering that part, with his reasonable costs in that behalf sustained.' When the demurrer is to a part only of the bill, the answer or plea to what remains usually follows the statement of the causes of demurrer, and the submission to the judgment of the court of the plaintiff's right to call upon the defendant to make further or other answer.2

§ 116. 1 Taylor v. Holmes, 14 Fed. R. 498; Brinkerhoff v. Brown, 6 J. Ch. (N. Y.) 149; Daniell's Ch. Pr. (2d Am. ed.) 657; Langdell's Eq. Pl., § 95; Story's Eq. PL., § 464; Tourton v. Flower, 3 P. Wms. 371.

2 Taylor v. Holmes, 14 Fed. R. 498, 499; Wright v. Dame, 1 Met. (Mass.) 237; Story's Eq. Pl., § 464; Daniell's Ch. Pr. 672. But see Rule 34.

3 Langdell's Eq. Pl., § 95; Story's Eq. Pl., § 464; Atty. Gen. v. Brown, 1 Swanst. 265, 268; Mortimer v. Fraser, 2 Myl. & Cr. 173.

4 Durdant v. Redman, 1 Vern. 78; Hook v. Dorman, 1 Sim. & S. 227; Story's Eq. Pl., § 464; Daniell's Ch. Pr. (2d Am. ed.) 668.

'Story's Eq. Pl., § 464; Durdant v. Redman, 1 Vern. 78; Atty. Gen. v. Brown, 1 Swanst. 288; Hook v. Dorman, 1 Sim. & S. 227.

6 Equitable L. A. Soc. v. Patterson, 1 Fed. R. 126; Baker v. Mellish, 11 Ves. 70, 76; Story's Eq. Pl., § 464. But see Crouch v. Hickin, 1 Keen, 385; Board, etc. German Reformed Church v. Von Puechelstein, 27 N. J. Eq. 30. But see Garlick v. Strong, 3 Paige (N. Y.), 440.

7Story's Eq. Pl., § 443.

§ 117. Daniell's Ch. Pr. (2d Am. ed.) 659.

2 Daniell's Ch. Pr. (2d Am. ed.) 659.

§ 118. Certificate of counsel.- Every demurrer must be accompanied by a certificate of counsel, that in his opinion it is well founded in point of law, and supported by the affidavit of the defendant that it is not interposed for delay. Otherwise it may be disregarded. The former remedy for this, as for any irregularity in form or in filing, was a motion to take the demurrer off the file. It seems that the demurrer may be overruled for such an omission; but the objection cannot be raised for the first time on appeal; and the statement of the causes of the demurrer must be considered as grounds of objection to an interlocutory injunction." Whether a certificate of counsel is required when the defendant appears in person, has not yet been decided in the Federal courts."

§ 119. Motions to take demurrers off the file.-The remedy for an irregularity in the form or the manner of filing a demurrer, for example, if there be an error in its title, or it be filed too late, is by a motion to take it off the file. When an order to that effect is granted, the cause stands in the same position as if no demurrer had been filed; and the defendant is at liberty to demur anew, or to plead or answer, as he may be advised. The order that a demurrer be taken off the file may allow the defendant to file the same paper with the proper additions and corrections. The application should be for an order "to take a certain paper purporting to be a demurrer" off the file. A demurrer is not taken off the file by the mere entry of an order to that effect. The order should be taken to the clerk, who will withdraw the demurrer by annexing the order to it. By setting the demurrer down for argument or

§ 118. Rule 31.

2 National Bank v. Insurance Co., 104 U. S. 54, 76; Sheffield Furnace Co. v. Witherow, 149 U. S. 574; Brazoria County v. Youngstown Br. Co., 80 Fed. R. 10.

3 See injra, § 119; Daniell's Ch. Pr. (2d Am. ed.) 661-663; Ewing v. Blight, 3 Wall. Jr. 134.

7 Secor v. Singleton, 9 Fed. R. 809; s. C., 3 McCrary, 230.

§ 119. Ewing v. Blight, 3 Wall. Jr. 134; Curzon v. De la Zouch, 1 Swanst. 193; Daniell's Ch. Pr. (2d Am. ed.) 661-663.

2 Cust v. Boode, 1 Sim. & S. 21; Daniell's Ch. Pr. 663.

Bailey W. M. Co. v. Young, 12

4 See U. S. R. S., § 747; 1 Hoffman's Blatchf. 199. Ch. Pr. 97.

5 Brazoria County v. Youngstown Br. Co., 80 Fed. R. 10.

• Preston v. Finley, 72 Fed. R. 850.

4 Daniell's Ch. Pr. (2d Am. ed.) 732. Cust v. Boode, 1 Sim. & S. 21; Daniell's Ch. Pr. (2d Am. ed.) 663.

taking any other proceeding in the cause, all defects of form except the omission of the affidavit and certificate of counsel," and any irregularity in filing it would probably be waived.

§ 120. Setting demurrer down for argument.- If the plaintiff fail to set down any plea or demurrer for argument on the rule-day when the same is filed, or on the next succeeding rule-day, he is deemed to admit the sufficiency thereof, and his bill is dismissed as of course, unless a judge of the court allows him further time for the purpose.1 The defendant filing the demurrer is the only party that can have the bill dismissed upon this account. The former English practice in setting a demurrer down for argument was for the plaintiff to obtain an order ex parte, upon petition for that purpose; and to serve the same upon the defendant's solicitor at least two days before the hearing. In the different circuits of the United States the matter is usually regulated by local rule or custom. The demurrer is not "ready for argument" until the rule-day after it is filed. By the argument of a demurrer any informality or delay in setting it down for a hearing is waived. It has been held, that a demurrer to a bill seeking an injunction must be decided, before a motion for an injunction noticed after the filing of the demurrer can be heard,' and before action is taken upon a plea subsequently or contemporaneously filed; and that while a demurrer is pending undecided, the allegations of the bill must for the purposes of a motion be deemed admitted."

§ 121. Argument of demurrer.- When a demurrer was called on for hearing and the defendant failed to appear, in the English practice the demurrer was struck out of the paper, unless the plaintiff had set down the demurrer, and could produce an affidavit of service upon the defendant or his solicitor of the order to set it down. If the plaintiff could produce

such an affidavit, the demurrer was not necessarily overruled; but he had to be heard in support of the bill, the affidavit of service not authorizing the court, in the absence of the defendant, to overrule the demurrer, but to hear the plaintiff.1 When the defendant appeared and the plaintiff did not, the demurrer was also struck out of the paper, unless the defendant could produce an affidavit of service upon himself of the order setting down the demurrer; or unless, in the event of the defendant having himself set down the demurrer, he could produce an affidavit of service upon the plaintiff or his solicitor. On the production of such an affidavit in either case, the defendant might have the demurrer allowed with costs. Where a demurrer had been struck out of the paper, a fresh order had to be obtained for setting it down, which might be had either upon petition or motion. The usual course of proceeding, when the demurrer came on for hearing, and all parties appeared, was generally for the junior counsel for the party setting the demurrer down for argument to open the pleadings, after which the counsel in support of the demurrer were heard, and next the plaintiff's counsel, and then the leading counsel for the demurring party replied. The practice in these respects in the courts of the United States is very loose; it is sometimes regulated by the local rule, and often by a local custom, after the analogy of the State practice.

§ 122. Overruling a demurrer.- If upon the hearing any demurrer is overruled, the plaintiff is entitled to his costs in the cause up to that period, unless the court is satisfied that the defendant has good ground, in point of law or fact, to interpose the same, and it was not interposed vexatiously or for delay.1 Upon the overruling of any demurrer, the defendant is assigned to answer the bill, or so much thereof as is covered by the demurrer, the next succeeding rule-day, or at such other period as, consistently with the rights of the defendant, the same can, in the judgment of the court, be reasonably done; in default whereof, the bill is to be taken against him pro confesso, and

§ 121. 1 Penfold v. Ramsbottom, 1 Swanst. 552; Daniell's Ch. Pr. (2d Am. ed.) 666, 667.

3 Tolson v. Lord Fitzwilliam, 4 Madd. 403.

4 Daniell's Ch. Pr. (2d Am. ed.) 666,

2 Jennings v. Pearce, 1 Ves. Jr. 447. 667.

$122. 1 Equity Rule 34

the matter thereof proceeded in and decreed accordingly. If the plaintiff does not desire an answer, terms may be imposed as a condition upon the filing of an answer by the defendant.3 A demurrer is presumed abandoned when the parties proceed to a hearing after an answer without argument of the demurrer. When a demurrer both to the whole bill and to part thereof is sustained only as to a part, the proper decree is to dismiss so much of the bill as seeks relief in reference to the matters adjudged to be bad, overrule the demurrer to the residue, and direct the defendant to answer thereto. When several defendants have joined in the demurrer, it may be sustained as to one of them, and overruled as to the rest. "The court cannot let a demurrer stand for an answer, because it is a mute thing." It must be either sustained or overruled. If, therefore, it is doubtful whether a demurrer should be sustained or not, the court will overrule it, and allow the same defense to be taken by answer; or, even if it be not taken in the answer, may sustain it at the hearing. By special leave, such a defense may also be made by a plea.10 When the answer by supplying omissions in the bill establishes the complainant's case, a decree for him will not be reversed upon appeal, for an error in overruling a demurrer." After a demurrer to the whole bill has been overruled, a second demurrer to the same extent cannot be allowed; for that would be in effect to rehear the case on the first demurrer; as, on argument of a demurrer, any cause of demurrer, though not shown in the demurrer as filed, may be alleged at the bar, and if good will support the demurrer.12 A demurrer, however, of a less extensive nature may by special

McLean, 336; Standard Oil Co. v. So. Halderman, Pac. Ry. Co., 42 Fed. R. 295. See Crawford v. The William Penn, 3 Wash. 484.

4 Basey v. Gallagher, 20 Wall. 670. 5 Powder Co. v. Powder Works, 98 U.S. 126.

6 Mayor of London v. Levy, 8 Ves. 403, 404; Story's Eq. Pl., § 445.

7 Ch. Hardwicke, in Anon., 3 Atk. 530.

8 Storms v. Kansas P. Ry. Co., 5 Dill. 486; Bromley v. Jeffersonville, 3

9 Johnasson v. Bonhote, L. R. 2 Ch. D. 298.

10 Daniell's Ch. Pr. (2d Am. ed.) 675; Rowley v. Eccles, 1 S. & S. 512.

11 Cavender v. Cavender, 114 U. S. 464. See also West v. Randall, 2 Mason, 181.

12 Daniell's Ch. Pr. (2d Am. ed.) 674.