are either: (a) That the complainant is not entitled to sue by reason of some personal disability, or (b) that the complainant has no title to the character in which he sues.65 Demurrers to the substance of the bill are divided into the following heads: (a) That the suit is unworthy of the dignity of the court; (b) that the complainant has no interest in the subjectmatter or no proper title to institute a suit concerning it; (c) that the complainant has no right to call upon the defendant to answer his demand; (d) the want of interest of the defendant in the subject-matter of the suit; (e) that the object of the bill is to enforce a penalty or forfeiture; (f) the statute of frauds; (g) that complainant's claim is barred by lapse of time; (h) another suit pending for the same matter.67 Objections to the form and frame of a bill are: (a) Defects of form; (b) multifariousness; (c) want of proper parties; and (d) misjoinder.

§ 208. Demurrers to jurisdiction.

(1) A demurrer to the jurisdiction will lie on the ground that the subject is not properly cognizable by any municipal court of justice. This may arise from the subject-matter being entirely of a political nature, and therefore constituting a fit subject for negotiation or treaty by the executive department of the government.68

65 Story, Eq. Pl. § 493; Cooper, Eq. Pl. 119, 163, 164. See Mitford, Eq. Pl. 110.

66 Cooper, Eq. Pl. 165, 166, 174, 177; Story, Eq. Pl. §§ 500-527.

67 Beach, Mod. Eq. Pr. § 234; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 559561. As to the right to assert defense of statute of frauds by demurrer, see post, § 265; of laches, post, § 275; of statute of limitations, post, § 264; of another suit pending, post, § 258; for asserting defenses resting upon statute, see post, § 266. If it appears by the bill that another suit is pending relative to the same matter, the defendant may demur. Such a demurrer, however, will not hold unless it appears by the bill that the suit already depending will afford the complainant the same relief as he would have been entitled to in the bill which is the subject of the demurrer. 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 561; Law v. Rigby, 4 Brown Ch. 60; Bent v. Maxwell Land Crant & Ry. Co., 3 Johns. (N. M.) 158, 3 Pac. 721.

68 Cooper, Eq. Pl. 119; Story, Eq. Pl. § 468; Nabob of the Carnatic

(2) It will also lie because the subject of the suit is not within the jurisdiction of a court of equity. It is settled doctrine that, whenever there is no sufficient ground shown in the bill for the interference of a court of equity, the defendant may demur to the bill for want of equity to sustain the jurisdiction. It is a rule subject to few exceptions that where

v. East India Co., 2 Ves. Jr. 56; Nabob of Arcot v. East India Co., 4 Brown Ch. 180; Foster v. Neilson, 2 Pet. (U. S.) 253; United States v. Percheman, 7 Pet. (U. S.) 51; Fairfax's Devisee v. Hunter's Lessee, 7 Cranch (U. S.) 603; Barclay v. Russell, 3 Ves. 424. See Pearson v. Parson, 108 Fed. 461.

69 Story, Eq. Pl. § 472; Reed v. Johnson, 24 Me. 322; Pond v. Vermont Valley R. Co., 12 Blatchf. 280, Fed. Cas. No. 11,265; Kendrick v. Whitfield, 20 Ga. 379; Emerson v. Western Union R. Co., 75 Ill. 176; Smith v. Morehead, 59 N. C. 360. "The general objects of that jurisdiction have been well summed up in a passage in Lord Redesdale's work, which may, without impropriety, be repeated in this connection. "The jurisdiction,' says he, 'when it [a court of equity] assumes a power of decision, is to be exercised: (1) Where the principles of law, by which the ordinary courts are guided, give a right, but the powers of those courts are not sufficient to afford a complete remedy, or their modes of proceeding are inadequate to the purpose. (2) Where the courts of ordinary jurisdiction are made instruments of injustice. (3) Where the principles of law, by which the ordinary courts are guided, give no right, but, upon the principles of universal justice, the interference of the judicial power is necessary to prevent a wrong, and the positive law is silent. And it may also be collected that courts of equity, without deciding upon the rights of the parties, administer to the ends of justice by assuming a jurisdiction: (4) To remove impediments to the fair decision of a question in other courts. (5) To provide for the safety of property in dispute pending a litigation, and to preserve property in danger of being dissipated or destroyed by those to whose care it is by law entrusted, or by persons having immediate, but partial, interests. (6) To restrain the assertion of doubtful rights in a manner productive of irreparable damage. (7) To prevent injury to a third person by the doubtful title of others. And (8) to put a bound to vexatious and oppressive litigation, and to prevent multiplicity of suits. And, further, that courts of equity, without pronouncing any judgment, which may affect the rights of parties, extend their jurisdiction: (9) To compel a discovery or obtain evidence which may assist the decision of other courts. And (10) to preserve testimony, when in danger of being lost before the matter to which it relates can be made the subject of judicial investigation.'" Story, Eq. Pl. § 472; Mitford, Eq. Pl. 111-151.

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the complainant can have as effectual and complete a remedy in a court of law as in a court of equity, and that remedy is direct, certain, and adequate, a demurrer, which is in truth a demurrer to the jurisdiction of the court, will hold. Where there is a clear right, and yet there is no remedy in a court of law, or the remedy is not plain, adequate, and complete, and adapted to the particular exigency, then and in such cases courts of equity will maintain jurisdiction.71 A like principle to that existing in cases where there is a complete remedy at law will apply to cases where, upon the face of the bill, there is no remedy either at law or in equity, or where there is not, according to the practice of courts of equity, any right or any remedy,

70 Story, Eq. Pl. § 473; Mitford, Eq. Pl. 123; Cooper, Eq. Pl. 124; Gifford v. Thorn, 7 N. J. Eq. 90; Consolidated Roller Mill Co. v. Coombs, 39 Fed. 25; Wangelin v. Goe, 50 Ill. 459; Lynch v. Willard, 6 Johns. Ch. (N. Y.) 342; Brooks v. Gibbons, 4 Paige, Ch. (N. Y.) 374. A demurrer on the ground of the existence of an adequate remedy at law will hold only when the bill affirmatively discloses the fact. Where the bill is silent as to the existence of such remedy, the defense based on such existence is matter for answer or plea. Bunn v. Timberlake, 104 Ala. 263, 16 So. 97.

71 Story, Eq. Pl. § 473; Parker v. Winnipiseogee Lake Cotton & Woolen Co., 2 Black (U. S.) 545. If the subject-matter of the bill is wholly foreign to the jurisdiction of equity, the court may properly dismiss the suit at any stage of the proceedings; but if the subjectmatter belongs to that class over which a court of equity will always take jurisdiction, when the relation of the parties to each other renders the exercise of such jurisdiction necessary, the objection that for the case before the court there was an adequate remedy at law comes too late after having filed an answer without taking exception. This objection should be taken at the earliest opportunity. Stout v. Cook, 41 Ill. 447; Magee v. Magee, 51 Ill. 500. Such an objection cannot be raised on appeal. Ohling v. Luitjens, 32 Ill. 28. The court, of its own motion, may at any time interpose the objection for its own protection, and thus prevent drawing into the vortex of a court of chancery matters purely cognizable at law, and that by the management and consent of the parties interested. If such a power did not exist, the lines dividing the jurisdiction of the courts of law and chancery would be speedily obliterated. Kimball v. Walker, 30 Ill. 482. This rule applies only where the subject-matter is of such a character as to be wholly foreign to the jurisdiction of a court of chancery, as, for example, a claim for damages, or for an assault and battery. Stout v. Cook, 41 Ill. 447.

even though there might be at law;72 and to a bill which states a case within the statute of limitations, and upon which courts of equity follow the analogy of the law.73 The remedy at law which precludes relief in equity must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.74

(3) The objection that some other court of equity is invested with the proper jurisdiction can rarely occur in America, from the structure of the local equity tribunals.75

(4) The objection that some other court possesses the proper jurisdiction is not confined to cases cognizable in courts of common law, but it may arise in cases where another court has an exclusive jurisdiction; or a competent, although not an exclusive, jurisdiction; or a mixed jurisdiction, embracing the subject-matter.76 Failure in a bill to show citizenship requisite to federal jurisdiction may be taken advantage of by demurrer."

§ 209. Demurrers to the person.

These may be either (1) to the personal disability of the complainant to sue, or (2) to the defect of the title of the complainant to the character in which he sues.

(1) If an infant, or a married woman, or an idiot, or a luna

72 Cooper, Eq. Pl. 124, 125; Story, Eq. Pl. § 485; Kemp v. Pryor, 7 Ves. 237; Hardy v. Reeves, 4 Ves. 479; Cholmondeley v. Clinton, Turn. & R. 107.

73 Mitford, Eq. Pl. 272, 273; Cooper, Eq. Pl. 254, 255; Story, Eq. Pl. § 484.

74 Springfield Milling Co. v. Barnard & Leas Mfg. Co., 49 U. S. App. 438, 81 Fed. 261; Boyce's Ex'rs v. Grundy, 3 Pet. (U. S.) 210. For illustration of the rule, see Story, Eq. Pl. §§ 474-483; Jones v. Jones, 3 Mer. 161; Jones v. Frost, Jac. 466; Gaines v. Chew, 2 How. (U. S.) 619; Parry V. Owen, 3 Atk. 740; Ryves v. Ryves, 3 Ves. 343; Mitford, Eq. Pl. 123125; Cooper, Eq. Pl. 61, 125-128, 208.

75 Story, Eq. Pl. § 486. See remarks of Lord Redesdale on this point in Mitford, Eq. Pl. 151-153; Story, Eq. Pl. § 487.

76 Story, Eq. Pl. § 490; Mitford, Eq. Pl. 125, 126; Cooper, Eq. Pl. 162; The Noysomhed, 7 Ves. 593.

77 Story, Eq. Pl. § 492; Jackson v. Ashton, 8 Pet. (U. S.) 148. See supra, § 71.

tic, exhibiting a bill, appear upon the face of it to be thus incapable of instituting a suit alone, and no next friend or committee is named in the bill, the defendant may demur. But if the incapacity does not appear upon the face of the bill, the defendant must take advantage of it by plea. This objection extends to the whole bill, and advantage may be taken of it as well in the case of a bill for discovery, merely, as in the case of a bill for relief.78 If an uncertificated bankrupt should sue in equity for property which had clearly passed to his assignees, and that fact should appear upon the face of the bill, it wouldordinarily constitute a good ground for a demurrer, though circumstances such as an allegation of fraud and collusion between the assignees and the defendant, and refusal upon their part to allow the suit, and a title in the bankrupt to a clear surplus-might exist which might sustain the bill.79

(2) It has sometimes been considered that an objection based on the defect of the title of the complainant to the character in which he sues is the proper subject of a plea, and not of a demurrer. A demurrer is, however, proper where the objection. positively appears (which can rarely be the case) upon the face of the bill.so Thus, if a voluntary association of persons not incorporated should affect, by their bill, to sue in the style and character of a corporate body, the bill would be demurrable on that account, if the objection appeared on the face of it. If the plaintiff in a suit at law is a fictitious person, the defendant may plead it in abatement. In equity a different and more summary course is adopted, and upon motion the court will direct a stay of the proceedings, or the bill to be taken off the files, and will order the solicitor to pay the costs for his con

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78 Cooper, Eq. Pl. 163; Story, Eq. Pl. §§ 493, 494; Mitford, Eq. Pl. 153, 154; Wartnaby v. Wartnaby, Jac. 377. See supra, § 11 et seq.

79 Cooper, Eq. Pl. 163; Story, Eq. Pl. § 495; Benfield v. Solomons, 9 Ves. 77; Barton v. Jayne, 7 Sim. 24.

80 Story, Eq. Pl. § 496; Cooper, Eq. Pl. 164, 169, 170; Mitford, Eq. Pl. 155.

81 Story, Eq. Pl. § 497; Lloyd v. Loaring, 6 Ves. 773; Cooper, Eq. Pl. 164; Livingston v. Lynch, 4 Johns. Ch. (N. Y.) 573.