complainant's bill that he is entitled neither to relief nor discovery, as against one of the defendants, such defendant should demur to the bill in the first instance, and if he puts in an answer unnecessarily, where it is clear that a demurrer to the whole bill may be sustained upon the merits, costs may be taxed against him." Where the facts relied on as a matter of defense are stated in the bill by way of pretense, and not expressly charged, it is not generally safe to demur, unless the whole right against the defendant is founded on that charge. The question of the propriety of issuing a writ of ne exeat cannot be raised by demurrer.9 § 195. Dismissal of bill on motion. 8 Under the chancery practice in Illinois and in some other jurisdictions, a motion to dismiss a bill may be properly made by the defendant whenever he denies the right of the complainant to file it, as where a bill of review has been filed without first obtaining leave of court, or the motion may be based upon the failure of the complainant to comply with some order of the court made after the bill has been filed, as the failure to give bond for costs. The motion may also be made upon the ground that there is no equity apparent upon the face of the bill, or that the court has no jurisdiction, though such is not the generally approved chancery practice; and in such case the motion is treated as a general demurrer, admitting all the facts 303; Judson v. Stephens, 75 Ill. 255; Billing v. Flight, 1 Madd. 230; Varick v. Dodge, 9 Paige (N. Y.) 149. 7 Murray v. Graham, 6 Paige (N. Y.) 622; Bradley v. Bosley, 1 Barb. Ch. (N. Y.) 131; Harland v. Bankers' & Merchants' Telegraph Co., 32 Fed. 305. 8 Story, Eq. Pl. § 450; Fletcher v. Tollet, 5 Ves. 3; Hicks v. Raincock, 1 Cox, 40; Braband v. Hoskins, 3 Price, 31. Shainwald v. Lewis, 69 Fed. 487. A demurrer lies where it appears on the face of the bill that the suit is prematurely brought; but when there is no demurrer, and at the hearing the objection appears, the court is not bound to dismiss the suit, but, if complainant is then entitled to the relief he seeks, may decree for him. Sarter v. Gordon, 2 Hill, Eq. (S. C.) 121; Haskell v. Waties, 2 Rich. Eq. (S. C.) 8. well pleaded by the bill. A bill will never be dismissed upon such a motion unless it is clear that no amendment can help it.10 § 196. Who may demur. Only those defendants who are improperly joined, or are injured by the misjoinder as defendants, can demur for such misjoinder.11 A demurrer will lie on the part of any of the defendants to a nonjoinder or misjoinder of complainants.12 The rule that, for a misjoinder of defendants, those only can demur who are improperly joined, applies with equal force to a misjoinder of matters.13 If a claim against several defendants is joined with a claim in which one only of the defendants is interested, and which is wholly disconnected with the claim against all of the defendants, all or either of them may demur for multifariousness.14 In a suit against several defendants whose liability is joint, and whose interests in the suit are identical, the court will not entertain a demurrer from one of the defendants only.15 After the death of a defendant in a bill, his executor can demur only if the testator might have done so in the same stage of the cause.16 One defendant may ap 10 Grimes v. Grimes, 143 Ill. 550, 32 N. E. 847. See, Glover v. Hembree, 82 Ala. 324, 8 So. 251; Terry v. Rosell, 32 Ark. 478; Thrasher v. Partee, 37 Ga. 392; Whitney v. Cotten, 53 Miss. 689; Conover v. Ruckman, 32 N. J. Eq. 685; Bradt v. Kirkpatrick, 7 Paige (N. Y.) 62; Randall v. Payne, 1 Tenn. Ch. 137; Henderson v. Mathews, 1 Lea (Tenn.) 34; Bicycle Stepladder Co. v. Gordon, 57 Fed. 529; Coleman v. Butt (Ala.) 30 So. 364; South & North Alabama R. Co. v. Highland Ave. & B. R. Co., 98 Ala. 400, 13 So. 682, 39 Am. St. Rep. 74. See post, § 574. 11 Buerk v. Imhaeuser, 8 Fed. 457; Toulmin v. Hamilton, 7 Ala. 362; Bigelow v. Sanford, 98 Mich. 657, 57 N. W. 1037; Payne v. Berry, 3 Tenn. Ch. 154; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640; Crosby v. Berger, 4 Edw. Ch. (N. Y.) 210; Cherry v. Monro, 2 Barb. Ch. (N. Y.) 618; Torrent v. Hamilton, 95 Mich. 159, 54 N. W. 634. See supra, § 59. 12 Peoria, D. & E. Ry. Co. v. Pixley, 15 Ill. App. 283. See supra, § 56. 13 Torrent v. Hamilton, 95 Mich. 159, 54 N. W. 634; Atwill v. Ferrett, 2 Blatchf. 39, Fed. Cas. No. 640. 14 Swift v. Eckford, 6 Paige (N. Y.) 22; Ward v. Northumberland, 2 Anstr. 469; Gibbs v. Clagett, 2 Gill & J. (Md.) 14. 15 Von Glahn v. De Rossett, 76 N. C. 292. 16 Pode v. Fowles, 3 Hen. & M. (Va.) 47. pear gratis, and demur, before the other defendants have been served.17 § 197. Demurrer coupled with plea or answer. A plea or answer to any part of a bill demurred to will overrule the demurrer.18 It is said that a demurrer for multifariousness is not overruled by an answer denying confederacy;1 nor is a demurrer to relief only overruled by an answer as to the discovery.20 It is held that the demurrer of one defendant is not overruled by the plea of a co-defendant.21 If the demurrer does not go to the whole bill, it must express to what particular parts it is meant to extend. It ought to express in clear and precise terms to what part the defendant refuses to It is not a proper way of demurring to say that the defendant answers to such a particular part, and demurs to all the rest of the bill.22 answer. 17 Jones v. Fulghum, 3 Tenn. Ch. 193. See Fell v. Christ's College, 2 Brown Ch. 279. 18 Story, Eq. Pl. §§ 442, 465; 1 Barbour, Ch. Pr. 108; Mitford, Eq. Pl. 109, 110; Tidd v. Clare, 2 Dickens, 712; Hester v. Weston, 1 Vern. 463; Savage v. Smalebroke, 1 Vern. 90; Adams v. Howard, 9 Fed. 347; Chase's Case, 1 Bland (Md.) 206, 17 Am. Dec. 277; Baines v. McGee, 1 Smedes & M. (Miss.) 208; Clark v. Phelps, 6 Johns. Ch. (N. Y.) 214; Barbey's Appeal, 119 Pa. 413, 13 Atl. 451; Robertson v. Bingley, 1 McCord Eq. (S. C.) 333; United States v. Parrott, 1 McAll. 271, Fed. Cas. No. 15,998; McDermott v. Blois, R. M. Charlt. (Ga.) 281; Fall v. Hafter, 40 Miss. 606; Spofford v. Manning, 6 Paige (N. Y.) 383; Kuypers v. Reformed Dutch Church, 6 Paige (N. Y.) 570; Jones v. Strafford, 3 P. Wms. 81; Ellice v. Goodson, 3 Mylne & C. 653; Dawson v. Sadler, 1 Sim. & S. 537; Crouch v. Hickin, 1 Keen, 389; Harding v. American Glucose Co., 182 Ill. 551, 55 N. E. 577; Souzer v. De Meyer, 2 Paige (N. Y.) 574. 19 1 Barbour, Ch. Pr. 108; Hester v. Weston, 1 Vern. 463. 20 1 Barbour, Ch. Pr. 108. 21 Dakin v. Union Pac. Ry. Co., 5 Fed. 665. 22 Mitford, Eq. Pl. 213, 214; Story, Eq. Pl. §§ 442, 457; 1 Barbour, Ch. Pr. 106; Devonsher v. Newenham, 2 Schoales & L. 199; Bruen v. Bruen, 4 Edw. Ch. (N. Y.) 640; Wetherhead v. Blackburn, 2 Ves. & B. 121; Robinson v. Thompson, 2 Ves. & B. 118; Salkeld v. Science, 2 Ves. Sr. 107; Gray v. Regan, 23 Miss. 304; Waring v. Suydam, 4 Edw. Ch. (N. Y.) 426. United States Equity Rule 37 provides that no demurrer or plea § 198. Abandonment or waiver of demurrer. A demurrer to a bill, on which no action is taken, is waived by a subsequent answer, 23 or by proceeding to a trial on the merits.24 Where the complainant fails to stand by his original bill after demurrer sustained thereto, and files an amended bill free from the objections raised on demurrer, he cannot urge the insufficiency of the demurrer on appeal.25 Whether one of two defendants to a bill has waived his right to demur thereto will be immaterial when both defendants filed a joint and several demurrer, as the demurrer of one of the defendants will be sufficient to raise the question of the sufficiency of the bill.26 When the defendant moves, and is granted leave, to withdraw his demurrer and file an answer, he waives such demurrer, and thereafter it is not to be considered as pending.27 § 199. Admissions by demurrer. A demurrer to a bill admits the truth of all matters therein stated which are well pleaded.28 It does not admit averments shall be held bad and overruled, on argument, only because the answer may extend to some part of the same matter as may be covered by such demurrer or plea. See Hayes v. Dayton, 8 Fed. 702; Crescent City Live-Stock, Landing & Slaughter House Co. v. Butchers' Union LiveStock, Landing & Slaughter House Co., 12 Fed. 225; Mercantile Trust L'o. v. Missouri, K. & T. Ry. Co., 84 Fed. 379. 23 Bauerle v. Long, 165 Ill. 340, 46 N. E. 227; Ray's Adm'r v. Womble, 56 Ala. 32; McLane v. Johnson, 59 Vt. 237, 9 Atl. 837; Wade v. Pulsifer, 54 Vt. 45; Strang v. Richmond, P. & C. R. Co., 101 Fed. 511. 24 Daughdrill v. Helms, 53 Ala. 62; Kiernan v. Blackwell, 27 Ark. 235; Waterman v. Buck, 63 Vt. 544, 22 Atl. 15; Chattanooga Grocery Co. v. Livingston (Tenn. Ch. App.) 59 S. W. 470; Harding v. Egin, 2 Tenn. Ch. 39. 25 Lookout Bank v. Susong, 90 Tenn. 590, 18 S. W. 389. 26 Illinois Land & Loan Co. v. Speyer, 138 Ill. 137, 27 N. E. 931. The filing of a cross bill after a demurrer to the bill does not prevent the court from considering the demurrer. Bennett v. Bennett (N. J. Err. & App.) 49 Atl. 501. 27 Wilson v. Derrwaldt, 100 Ill. App. 396. 28 Mitford, Eq. Pl. 211, 213; Story, Eq. Pl. § 452; Baker v. Booker, 6 Price, 381; Myers v. Wright, 33 Ill. 284; Roby v. Cossitt, 78 Ill. 638; Maddox v. White, 4 Md. 72, 59 Am. Dec. 67; Dillon v. Barnard, 21 Wall. (U. S.) 430; Baker v. Atkins, 62 Me. 205. amounting to statements of law, nor mere legal conclusions, 29 nor statements of arguments.30 Where the averment is that the complainant is informed and believes that certain things are true, the demurrer admits that complainant is so informed and does so believe, but not that the information is true.31 Where there is an inconsistency between an averment in a bill and a written instrument attached thereto as an exhibit, a demurrer does not admit the truth of the conflicting averment in the bill.32 A demurrer to a bill in which perjury is distinctly and specifically alleged is, for the purposes required by the demurrer, equivalent to a party's own confession of the crime, or to competent evidence of his legal conviction thereof.33 Any material fact which is stated with legal certainty anywhere in the stating part of the bill is well pleaded, and therefore admitted by a demurrer.34 Where there are several defendants, a demurrer of the principal defendant admits the facts alleged only as between the complainant and himself.35 A demurrer is always preceded by a protestation against the truth of the matters contained 29 Cooper, Eq. Pl. 111; Story, Eq. Pl. § 452; Cornell v. Green, 43 Fed. 105; Preston v. Smith, 26 Fed. 884; Stow v. Russell, 36 Ill. 18; Churchill Township v. Cummings Township, 51 Mich. 446, 16 N. W. 805; Partee v. Kortrecht, 54 Miss. 66; Dauphin v. Key, MacArthur & M. (D. C.) 203; Pearson v. Tower, 55 N. H. 36; Tompson v. National Bank of Redemption, 106 Mass. 128; Lockhart v. Leeds (N. M.) 63 Pac. 48. 30 Johnson v. Roberts, 102 Ill. 655. 31 Walton v. Westwood, 73 Ill. 125; Trimble v. American Sugar-Refining Co. (N. J. Eq.) 48 Atl. 912; Vickers v. Cowell, 7 Jur. 51; Egremont v. Cowell, 5 Beav. 620; Uxbridge v. Staveland, 1 Ves. Sr. 56. See supra, § 100. 32 National Park Bank of New York v. Halle, 30 Ill. App. 17. See Lea v. Robeson, 12 Gray (Mass.) 280; Le Baron v. Shepherd, 21 Mich. 262; Interstate Land Co. v. Maxwell Land Grant Co., 139 U. S. 569. See, also, Ulman v. Iaeger, 67 Fed. 980. A demurrer gives no legal effect to an allegation in opposition to the record (Green v. Dodge, 6 Ohio, 80, 25 Am. Dec. 736), nor to a matter, such as legislative acts and records, of which the court is bound to take judicial notice (Griffin v. Augusta & K. R. Co., 72 Ga. 423). See supra, § 99. 33 Craft v. Thompson, 51 N. H. 536. 84 Paterson & Hudson River R. Co. v. 35 Edwards v. Edwards, 2 Strob. Eq. 5 Sim. 406. Jersey City, 9 N. J. Eq. 434. |