put in a demurrer even after he has obtained an order for time.127 It is usually made a special condition of the order giving the defendant time to demur, plead, or answer to the complainant's bill, that he shall not demur alone. When, therefore, the defendant has obtained an order for time, and is afterwards advised to demur, he must also plead to or answer some part of the bill.128 If the defendant omits to put in his demurrer, or to answer within the time allowed by the order, and an attachment is, in consequence, issued against him for want of an answer, the demurrer, even though coupled with an answer, will be irregular, and in such a case the proper course is to move that the demurrer and answer be taken off the file, and not that the demurrer be overruled.129 It is in the discretion of the court to allow the withdrawal of an answer, and the filing of a demurrer in lieu thereof, at any stage of the cause before final decree.130

§ 222. Admitting demurrer.

If the complainant takes exceptions to the answer, pending a

127 1 Barbour, Ch. Pr. 110; Bruce v. Allen, 1 Madd. 556; Harvey v. Mathew, 1 Dickens, 30; Dyson v. Benson, Coop. 110; Burrall v. Raineteaux, 2 Paige (N. Y.) 331; Kenrick v. Clayton, 2 Brown Ch. 214; Taylor v. Milner, 10 Ves. 444; Lakens v. Fielden, 11 Paige (N. Y.) 644.

128 1 Barbour, Ch. Pr. 110; Mitford, Eq. Pl. 208. It has been held that answering to some fact immaterial to the cause, and denying combination, do not amount to a compliance with the terms of such an order. 1 Barbour, Ch. Pr. 110; Stephenton v. Gardiner, 2 P. Wms. 286. In another case, which was a bill for discovery, the answer gave no information, but simply stated the default of the person, and denied combination; and Lord Eldon said that he was afraid that, according to the practice of the court, if the defendant had been under the order not to demur alone, the addition of that short answer would have saved the terms of the order. Tompkin v. Lethbridge, 9 Ves. 178; 1 Barbour, Ch. Pr. 110; 1 Hoffman, Ch. Pr. 214. Though an answer to a single fact will be a sufficient compliance with the condition, such fact must not be one that is covered by the demurrer; otherwise, the demurrer will be overruled by the answer. 1 Barbour, Ch. Pr. 110. 129 1 Barbour, Ch. Pr. 110; Curzon v. De la Zouch, 1 Swanst. 193. 130 Saunders v. Savage (Tenn. Ch. App.) 63 S. W. 218; Chestnutt v. Frazier, 6 Baxt. (Tenn.) 219; Lowe v. Morris, 4 Sneed (Tenn.) 69.

demurrer to the discovery, he admits the demurrer, but the court may permit him to withdraw the exceptions.131

§ 223. Withdrawing demurrer.

Where the demurrer is defective in form, the court will grant the defendant permission to withdraw it, and file a new one, on payment of costs.132 After the demurrer has been noticed for argument, the defendant may, by motion, obtain an order to withdraw it.183

§ 224. Form of order on withdrawal of demurrer.

[Title of court and cause.]

This cause coming on now to be heard, upon the demurrer of the said defendant, C. D., filed herein, to the bill of complaint, said defendant withdraws said demurrer, and leave is hereby given to said defendant to, and it is ordered that the said defendant, file his answer to the bill of complaint herein, within ten days from this date.

§ 225. Demurrer to amended bill.

The general rule is that an amendment of a bill does not enable the defendant, who has answered the original bill, to demur to the amended bill upon any cause of demurrer to which the original bill was open.134 But if the complainant so amend his bill as to make an entirely new case, leaving the original bill (as Lord Eldon expresses it) in nubibus, the answer must be treated as "in the clouds" also, and a demurrer would be in order.180 The right to demur a second time to the whole

131 1 Barbour, Ch. Pr. 112; Mitford, Eq. Pl. 317; 1 Hoffman, Ch. Pr. 217; Boyd v. Mills, 13 Ves. 85. It is said that if the demurrer is to the relief only, and not to any part of the discovery, the complainant may take exceptions to the answer before the demurrer is argued. 1 Barbour, Ch. Pr. 113; London Assurance v. East India Co., 3 P. Wms. 326. 1321 Barbour, Ch. Pr. 111; Norton v. Coley, 45 Miss. 125; Devonsher v. Newenham, 2 Schoales & L. 199. See, as to withdrawing demurrer, Bailey v. Holden, 50 Vt. 15.

183 1 Barbour, Ch. Pr. 111; Downes v. East India Co., 6 Ves. 586. 134 State v. Mitchell, 104 Tenn. 336, 58 S. W. 365; Atkinson v. Hanway, 1 Cox, 360; Ellice v. Goodson, 3 Mylne & C. 653.

135 Ritchie v. Aylwin, 15 Ves. 79; Cresy v. Bevan, 13 Sim. 354; State v. Mitchell, 104 Tenn. 336, 58 S. W. 365.

bill, upon an amendment made, applies only to cases where the amendment is made and the demurrer filed before the answer. is put in.136 The defendant has a right to interpose a new demurrer to an amended bill, notwithstanding the previous demurrer to the original bill has been overruled.137

§ 226. Setting down demurrer for argument.

Either party has a right to notice the demurrer for argument,138 and, although it is usually noticed by the complainant, the defendant may give the notice, if he pleases, and in some cases it becomes necessary for him to do so in case of the complainant's neglect.139 The time when, and manner and order in which, demurrers shall be heard, are regulated by local usage or rules of court.140

$227. Form of notice of argument of demurrer.

[Title of court and cause.]

To A. B., Esq., Solicitor for case may be]:

-, Complainant [or Defendant, as the

You are hereby notified that on Monday, the 9th day of April, A. D. 1900, at 10 o'clock a. m., or as soon thereafter as counsel can be heard, we shall, before his honor Judge M. F. T., in the room usually occupied by him as a court room in said county, move for the argument and disposition of the demurrer to the bill of complaint filed by the de

136 Bond v. Pennsylvania Co., 171 Ill. 508, 49 N. E. 545; Booth v. Stamper, 10 Ga. 114; 1 Daniell, Ch. Pl. & Pr. (6th Am. Ed.) 409. A defendant whose demurrer has been overruled, and to whom time has been given to answer, may demur again, without leave being specially granted, on complainants' amending their bill by joining a new party complainant. Moore v. Armstrong, 9 Port. (Ala.) 697.

137 Bowes v. Hoeg, 15 Fla. 403; Booth v. Stamper, 10 Ga. 109. See, also, Scott v. Calvit, 3 How. (Miss.) 48, questioning the reasonableness of the rule in all instances, and reviewing authorities. If the bill is amended after an order extending the time to answer the original bill, the defendant may put in a demurrer to the amended bill. Cowman v. Lovett, 10 Paige (N. Y.) 559.

138 1 Smith, Ch. Pr. 209.

1891 Barbour, Ch. Pr. 111; Done v. Allen, 1 Dickens, 55; Anonymous, 2 Ves. Jr. 287.

140 For practice in Cook county, Illinois, see Rule 4 of Chancery Rules of Superior and Circuit Courts of Cook County. For practice in Michigan, see Zabel v. Harshman, 68 Mich. 270, 36 N. W. 71.

fendant in the above-entitled cause, at which time and place you may

appear, if you see fit

Yours, etc.,

G., H. & I., Solicitors for Defendant [or Complainant].

Dated Chicago, April 3, 1900.

§ 228. Hearing on demurrer.

In hearing a demurrer, the argument is strictly confined to the case appearing upon the record, and, for the purposes of the argument, the matters of fact stated in the bill are admitted to be true.141 The demurrer cannot be defeated by suggesting proposed amendments to the bill at the time of the hearing of the demurrer.142 The usual course of proceeding, when a demurrer comes on for hearing, and all parties appear, is for the solicitor in support of the demurrer to be first heard, next the complainant's solicitor, and then the solicitor for the demurring party replies in conclusion.148 A bill may be finally heard on the demurrer of one defendant, though the other has not appeared, if sufficient matter be disclosed to enable the court to determine the rights of all the parties.144 A demurrer by a part of several defendants may be heard and determined before service is had on the others.145 It is said to be the practice that, if the defendant does not appear to argue the demurrer, it is not to be overruled, but the court will hear the complainant.146 The demurrer must be determined as of the time it was filed.147

1411 Barbar, Ch. Pr. 111; East India Co. v. Henchman, 1 Ves. Jr. 289; Phelps v. McDonald, 2 MacArthur (D. C.) 375; Black v. Shreeve, 7 N. J. Eq. 440; Tallmadge v. Lovett, 3 Edw. Ch. (N. Y.) 563; Chicago, St. L. & N. O. R. Co. v. Macomb, 2 Fed. 18; Gray v. Regan, 23 Miss. 304.

142 Mutual Reserve Fund Life Ass'n v. Bradbury, 53 N. J. Eq. 643, 33 Atl. 960.

143 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 596.

144 Morgan v. Scott, Minor (Ala.) 81, 12 Am. Dec. 35.

145 Thomas v. Winter, 21 Ga. 358.

146 1 Hoffman, Ch. Pr. 218; Penfold v. Ramsbottom, 1 Swanst. 552 147 Scott v. McFarland, 34 Miss. 363.

§ 229. Sustaining the demurrer.

Formerly, on a demurrer to the whole bill being allowed, the case was out of court, and no subsequent proceedings could be taken therein.148 The rigor of this rule has been relaxed in most jurisdictions by liberal statutory provisions relative to amendments.149 The allowance of a partial demurrer was never attended with such consequences as a demurrer to the whole bill. The bill, or that part of it which was not covered by the demurrer, still remained in court, and the complainant might obtain an order to amend, or to refer the answer upon exceptions, or adopt any other proceedings in the case in the same manner that he might have done had there been no demurrer.150 Under the modern practice, when a bill discloses merits, though deficiently stated, the court may sustain a demurrer, but must grant leave to amend the bill.151 A court of equity should not dismiss a bill, when the allegations are sufficient to authorize the court to grant the relief sought, because the complainant has failed to make proper parties. The complainant should be allowed to amend his bill, and further proceedings had, that the

148 1 Barbour, Ch. Pr. 111; Beach, Mod. Eq. Pr. § 279; Smith v. Barnes, 1 Dickens, 67; Watkins v. Bush, 2 Dickens, 701; Mallery v. Dudley, 4 Ga. 52; Edward P. Allis Co. v. Withlacoochee Lumber Co., 105 Fed. 680. 149 Beach, Mod. Eq. Pr. § 279; National Bank v. Carpenter, 101 U. S. 567; Fleece v. Russell, 13 Ill. 31; Cullison v. Bossom, 1 Md. Ch. 95. For practice in federal courts, see United States Equity Rule 35; National Bank v. Carpenter, 101 U. S. 567; United States v. Atherton, 102 U. S. 372; Edward P. Allis Co. v. Withlacoochee Lumber Co., 105 Fed. 680. See post, § 378 et seq.

150 1 Barbour, Ch. Pr. 111; Mitford, Eq. Pl. 215; Durling v. Hammar, 20 N. J. Eq. 220. See Beauchamp v. Gibbs, 1 Bibb (Ky.) 481; Lookout Bank v. Susong, 90 Tenn. 590, 18 S. W. 389; McElwee v. Massey, 10 Rich. Eq. (S. C.) 377.

151 Shonk v. Knight, 12 W. Va. 667; Puterbaugh v. Elliott, 22 Ill. 157; Wright v. Dunklin, 83 Ala. 317, 3 So. 597; Roser v. Slade, 3 Md. Ch. 91; Hiller v. Cotton, 48 Miss. 593; Rose v. King, 4 Hen. & M. (Va.) 475; Barnard v. Cushman, 35 Ill. 451; Hunt v. Rousmaniere, 2 Mason, 342, Fed. Cas. No. 6,898; Palmer v. Rankins, 30 Ark. 771; Thurmond v. Clark, 47 Ga. 500; Davis v. Clabaugh, 30 Md. 508; Gray v. Hays, 7 Humph. (Tenn.) 588; Bigelow v. Sanford, 98 Mich. 657, 57 N. W. 1037.