in the bill, a practice probably intended to avoid any conclusion in another suit, for in the present suit it is wholly without effect.36

$200. Speaking demurrer.

Care must be taken, in framing a demurrer, that it be made to rely only upon the facts stated in the bill; otherwise, it will be what is termed a "speaking demurrer,"-that is, a demurrer which states facts not appearing on the face of the bill,-and will be overruled.37

$201. Separate demurrers.

A defendant may put in separate demurrers to separate and distinct parts of a bill for separate and distinct causes; for the same grounds of demurrer, frequently, will not apply to different parts of a bill, though the whole may be liable to demurrer; and in such a case one demurrer may be overruled upon argument, and another allowed.38

A defendant may, at the hearing of his demurrer, orally assign another cause of demurrer, different from or in addition to those assigned upon the record, which, if valid, will support the demurrer, although the causes of demurrer stated in the demurrer itself are held to be invalid: This oral statement of

a cause of demurrer at the bar is called "demurring ore tenus."39

86 Mitford, Eq. Pl. 212; Story, Eq. Pl. § 452; Cooper, Eq. Pl. 212.

37 Cooper, Eq. Pl. 111; Story, Eq. Pl. §§ 447, 448; 1 Barbour, Ch. Pr. 107; Brooks v. Gibbons, 4 Paige (N. Y.) 374; Davies v. Williams, 1 Sim. 5; Cawthorn v. Chalie, 2 Sim. & S. 127; Saxon v. Barksdale, 4 Desaus. (S. C.) 522; Brownsword v. Edwards, 2 Ves. Sr. 245; Edsell v. Buchanan, 2 Ves. Jr. 83; Kuypers v. Reformed Dutch Church, 6 Paige (N. Y.) 570; Pendlebury v. Walker, 4 Younge & C. Exch. 424; Southern Life Ins. & Trust Co. v. Lanier, 5 Fla. 110; Black v. Shreeve, 7 N. J. Eq. 440; Richardson v. Loree, 94 Fed. 375; Stewart v. Masterson, 131 U. S. 151. 38 Story, Eq. Pl. §§ 438, 444; Mitford, Eq. Pl. 106, 107; 1 Barbour, Ch. Pr. 107; North v. Strafford, 3 P. Wms. 148; Roberdeau v. Rous, 1 Atk. 544.

89 Cooper, Eq. Pl. 112; Story, Eq. Pl. § 464; 1 Hoffman, Ch. Pr. 218; 1

A defendant cannot demur ore tenus unless there is a demurrer on the record.40 Where a new cause of demurrer is assigned ore tenus, the cause must be coextensive with the demurrer upon the record.42 41 Want of equity in the substance of a bill may be assigned ore tenus.42 Under a general demurrer for want of equity, a demurrer ore tenus may be made for want of parties.43 Misjoinder may be assigned as cause for a demurrer ore tenus at the argument, though a general demurrer for want of equity be overruled. So may an objection that the suit is brought by a feme covert in her own name, instead of by her next friend.45 It has been held that a demurrer ore tenus must extend to the whole bill, and cannot be made to a part only.46 A demurrer ore tenus is only allowed upon new grounds, and not where a written demurrer on the same point has been overruled.47 Demurrers ore tenus are not encouraged; and when the demurrer filed is overruled, although the demurrer ore ten

44

Barbour, Ch. Pr. 108; McDermott v. Blois, R. M. Charlt. (Ga.) 281; Vanhorn v. Duckworth, 42 N. C. 261; Tourton v. Flower, 3 P. Wms. 371; Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 143; Burk v. Muskegon Ma chine & Foundry Co., 98 Mich. 614, 57 N. W. 804.

40 Cooper, Eq. Pl. 112; Story, Eq. Pl. § 464; 1 Barbour, Ch. Pr. 109; Durdant v. Redman, 1 Vern. 78; Hook v. Dorman, 1 Sim. & S. 227; Attorney General v. Brown, 1 Swanst. 288. Therefore, there cannot be a demurrer ore tenus after a plea overruled. 1 Hoffman, Ch. Pr. 220; Hook v. Dorman, 1 Sim. & S. 227.

411 Barbour, Ch. Pr. 109; Pitts v. Short, 17 Ves. 213; Metcalf v. Brown, 5 Price, 560; Equitable Life Assur. Soc. v. Patterson, 1 Fed. 126; Clark v. Davis, Har. (Mich.) 227; Van Orden v. Van Orden (N. J. Eq.) 41 Atl. 671.

42 Hastings v. Belden, 55 Vt. 273.

48 1 Barbour, Ch. Pr. 109; Stillwell v. McNeely, 2 N. J. Eq. 305; Robinson v. Smith, 3 Paige (N. Y.) 231; Tourton v. Flower, 3 P. Wms. 371; Van Orden v. Van Orden (N. J. Eq.) 41 Atl. 671.

44 Barrett v. Doughty, 25 N. J. Eq. 379.

45 Garlick v. Strong, 3 Paige (N. Y.) 440.

46 1 Hoffman, Ch. Pr. 219; Story, Eq. Pl. § 464; 1 Barbour, Ch. Pr. 109; Shepherd v. Lloyd, 2 Younge & J. 490; Baker v. Mellish, 11 Ves. 70. It has also been said, however, that after a demurrer to part of a bill has been overruled the defendant may demur ore tenus to the same part. 1 Barbour, Ch. Pr. 109, citing Crouch v. Hickin, 1 Keen, 385. 47 1 Barbour, Ch. Pr. 109; Bowman v. Lygon, 1 Anst.. 1.

us has been allowed, the general rule seems to be that the demurrant must pay the costs of the demurrer on record.48

§ 203. Demurrer to bill good in part.

A demurrer to a whole bill must be overruled if the bill, taken altogether, entitles the complainant to some kind of relief.49 Where a bill contains sufficient allegations of fact to constitute a cause of action, mere conclusions of law do not take away the effect of such allegations.50 Thus, where a bill seeks discovery and relief, and is sustainable for relief, a demurrer to the whole bill cannot be sustained, though the complainant is not entitled to the discovery.51

§ 204. Demurrer cannot be good in part and bad in part.

If

A demurrer cannot be good in part and bad in part.52 any part of a bill is good, and entitles complainant to either relief or discovery, a demurrer to the whole bill cannot be sustained.53 Where there are several defendants, if they all joir

48 Mortimer v. Fraser, 2 Mylne & C. 173; Attorney General v. Brown, 1 Swanst. 288; Durdant v. Redman, 1 Vern. 78; Van Orden v. Van Orden (N. J. Eq.) 41 Atl. 671.

49 Livingston v. Story, 9 Pet. (U. S.) 632; Beall v. Lehman Durr Co., 110 Ala. 446, 18 So. 230; El Modello Cigar Mfg. Co. v. Gato, 25 Fla. 886, 7 So. 23, 23 Am. St. Rep. 537; Wescott v. Wicks, 72 Ill. 524; Laughton v. Harden, 68 Me. 208; Darrah v. Boyce, 62 Mich. 480, 29 N. W. 102; Craft v. Thompson, 51 N. H. 536; Durling v. Hammar, 20 N. J. Eq. 220; Le Fort v. Delafield, 3 Edw. Ch. (N. Y.) 32; Thompson v. Newlin, 38 N. C. 338, 42 Am. Dec. 169; Riddle v. Motley, 1 Lea (Tenn.) 468; Eakin v. Hawkins, 48 W. Va. 364, 37 S. E. 622.

50 Berwind v. Canadian Pac. Ry. Co., 98 Fed. 158.

51 Cooper, Eq. Pl. 117; Story, Eq. Pl. § 312; Parker v. Simpson (Mass.) 62 N. E. 401.

521 Barbour, Ch. Pr. 107; Story, Eq. Pl. § 443.

53 Gooch v. Green, 102 Ill. 507; Washington v. Soria, 73 Miss. 665, 19 So. 485; Livingston v. Story, 9 Pet. (U. S.) 632; Metcalf v. Hervey, 1 Ves. Sr. 248; Higinbotham v. Burnet, 5 Johns. Ch. (N. Y.) 184; Livingston's Ex'rs v. Livingston, 4 Johns. Ch. (N. Y.) 294, 8 Am. Dec. 562; Reading v. Stover, 32 N. J. Eq. 326; Gay v. Skeen, 36 W. Va. 582, 15 S. E. 64; Lowe v. Burke, 79 Ga. 164, 3 S. E. 449; Castleman v. Veitch, 3 Rand. (Va.) 598; Larter v. Canfield, 59 N. J. Eq. 461, 45 Atl. 616.

(241)

in one demurrer, the demurrer may be good as to one of the defendants demurring, and bad as to others.54

§ 205. Demurrers are either general or special.

55

Demurrers are either general or special. They are general when no particular cause is assigned, except the usual formulary, that there is no equity in the bill. 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.5 On a general demurrer to a whole bill, the defendant cannot raise the objection that some of the allegations and charges in the bill are unnecessary and impertinent.56 The omission from the prayer for answer of the names of defendants cannot be taken advantage of by general demurrer.57 Vagueness and uncertainty are objections not good on general demurrer, if the averments are sufficiently certain to be susceptible of an answer, or to lay the foundation for a decree.58 A bill defective

54 Cooper, Eq. Pl. 113; Story, Eq. Pl. § 445; 1 Barbour, Ch. Pr. 108; City of London v. Levy, 8 Ves. 403; Barstow v. Smith, Walk. (Mich.) 394.

55 Story, Eq. Pl. § 455; Cooper, Eq. Pl. 118; Barton, Suit in Eq. 107, 108; Forbes v. Whitlock, 3 Edw. Ch. (N. Y.) 446; Wellborn v. Tiller, 10 Ala. 305; Laughton v. Hardin, 68 Me. 208; Harrington v. McLean, 62 N. C. 258; Essex Paper Co. v. Greacen, 45 N. J. Eq. 504, 19 Atl. 466; Pacific Live Stock Co. v. Hanley, 98 Fed. 347; Wilson v. Hill, 46 N. J. Eq. 367, 19 Atl. 1097; Stewart v. Flint, 57 Vt. 216. By the English rules, every demurrer was required to contain the causes thereof, and they must be set down with reasonable certainty and directness. Beames, Order Ch. 77, 173; Story, Eq. Pl. § 455. It is held that a general demurrer will not lie to a bill containing an allegation of fraud (Stovall v. Northern Bank, 5 Smedes & M. [Miss.] 17), and that, where a bill charges fraud and undue advantage, a demurrer for want of equity will not be favored (Rambo v. Rambo, 4 Desaus. [S. C.] 251). But see Ross v. Ross, Freem. Ch. (Miss.) 587.

56 Beach v. Beach, 11 Paige (N. Y.) 161.

57 Boon v. Pierpont, 28 N. J. Eq. 7.

58 Chouteau v. Rice, 1 Minn. 106 (Gil. 83), citing Lube, Eq. Pl. 347; Story, Eq. Pl. §§ 242, 455.

for want of parties must be demurred to specially, and the demurrer must show who are the proper parties.59 Where the complainant filed a bill for himself and others, who are not parties to the bill, when it should have been for himself only, a general demurrer on that ground to the whole bill is too broad.60 Where a defendant to a bill praying relief demurs to the discovery only, he cannot do so under a general demurrer for want of equity, but must make it the subject of a special demurrer.61

§ 206. Several causes of demurrer.

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 of the bill demurred to; and if any one of the causes assigned holds good, the demurrer will be allowed.62

$207. Classification of demurrers in general.

Demurrers to relief may be properly divided into three classes: (1) To the jurisdiction; (2) to the person of the complainant; and (3) to the matter of the bill, either as to its substance or as to its form and frame.63 Demurrers to the jurisdiction admit of a further subordinate division into four heads: (a) That the subject is not cognizable by any municipal court of justice; (b) that the subject is not within the jurisdiction of a court of equity; (c) that some other court of equity is invested with the proper jurisdiction; and (d) that some other court possesses the proper jurisdiction.64 Demurrers to the person

Reese v. Reese, 89 Ga. 645, 15 S. E. 846. See supra, § 57.

60 Parish v. Sloan, 38 N. C. 607.

611 Barbour, Ch. Pr. 107; Whittingham v. Burgoyne, 3 Anstr. 900; Payne v. Hathaway, 3 Vt. 212; Weisman v. Heron Min. Co., 57 N. C. 112; Burpee v. Smith, Walk. (Mich.) 327.

621 Barbour. Ch. Pr. 107; Harrison v. Hogg, 2 Ves. Jr. 323; Jones v. Frost, 3 Madd. 1.

63 Story, Eq. Pl. § 466; Cooper, Eq. Pl. 118. See Mitford, Eq. Pl. 110.

64 Story, Eq. Pl. § 466; Cooper, Eq. Pl. 118, 119. See Mitford, Eq. Pl.

110.