be sufficient to sustain the bill.90 If a doubtful title only is shown, it will be sufficient to support a bill which seeks the assistance of the court to preserve the property in dispute pending litigation.

91

§ 212. No right to call upon defendant to answer complainant's demand.

Another objection which may be taken by demurrer to the substance of the bill is that, although the complainant has an interest in the subject-matter of the suit, and a title to institute a suit concerning it, yet he has no right to call upon the defendant to answer his demand. This objection frequently arises from a want of privity between the parties, but it is not necessarily confined to such cases, nor, indeed, does it apply to all cases where there is a want of privity.92

§ 213.

Demurrer for want of interest of the defendant.

The want of interest of the defendant in the subject-matter of the suit may be demurred to. Some of the cases arising under this head-for example, as the cases of mere witnesses, or arbitrators, bankrupts, and others having no interest in the controversy-have already been considered.93 It is not only necessary in order to prevent a demurrer that the bill should show that the defendant has an interest in the subject-matter, but it must also be shown that he is liable to the complainant's demand, which is the groundwork of the bill.94

90 Mitford, Eq. Pl. 157; Story, Eq. Pl. § 511; Griffiths v. Hamilton, 12 Ves. 298; Cooper, Eq. Pl. 170; Gaines v. Chew, 2 How. (U. S.) 619. 91 Story, Eq. Pl. § 512; Mitford, Eq. Pl. 157, 158. See supra, § 90. 92 Story, Eq. Pl. § 513; Cooper, Eq. Pl. 174; Mitford, Eq. Pl. 158; Tollett v. Tollett, 1 Amb. 194; Hawkins v. Kelly, 8 Ves. 308; Alsager v. Johnson, 4 Ves. 217; Alsager v. Rowley, 6 Ves. 748; Troughton v. Binkes, 6 Ves. 573; Elmslie v. McAulay, 3 Brown Ch. 624. See supra, § 90.

93 Story, Eq. Pl. § 519; Mitford, Eq. Pl. 160; Newman v. Godfrey, 2 Drown, Ch. 332; Fenton v. Hughes, 7 Ves. 290. See supra, §§ 45-47.

94 Mitford, Eq. Pl. 162; Story, Eq. Pl. § 520; Cooper, Eq. Pl. 178. See supra, § 90.

$214. Demurrer to bill to enforce penalty or forfeiture.

Another ground of objection by demurrer is when it appears on the face of the bill that the object of the bill is to enforce a penalty or forfeiture. It is a general rule that courts of equity do not lend their aid to enforce any penalty or forfeiture, but leave the party to his remedy at law. The exceptions to the general rule stand upon peculiar grounds, entirely consistent with its general scope and objects. Thus, for example, if the complainant seeking relief is solely entitled to take advantage of the penalty or forfeiture, and he expressly waives any right to the penalty or forfeiture, the bill is maintainable.95 A defendant may so act or so contract as to waive on his part any objection to a bill to enforce a penalty or forfeiture. Thus, he may contract to answer fully a bill of discovery which may involve a penalty or forfeiture, but not a crime, or he may, by his acts in fraud of the complainant, and in violation of law, by implication, exclude himself from the benefit of the objection, if allowing it would subvert the whole policy of the law.96 The objection above stated may not only apply to the whole bill, when the sole purpose of it is to enforce a penalty or forfeiture, but it is equally applicable to a particular interrogatory in the bill, otherwise unexceptionable, which may expose the defendant to a penalty or forfeiture.97 The objection is not personal and confined to the original party defendant, but, if he should die, his personal representative would be entitled to the same protection which the deceased might claim if there should be any interest in the personal representative which might be forfeited or affected by the discovery.98 The same principle applies to a case where the discovery demanded may

95 Story, Eq. Pl. § 521; Mitford, Eq. Pl. 193-198; Southall v. Younge, 308; Horsburg v. Baker, 1 Pet. (U. S.) 232.

96 Mitford, Eq. Pl. 195, 287, 288; Cooper, Eq. Pl. 205, 206; Story, Eq. Pl. § 521; Hare, Disc. 139-144; South Sea Co. v. Bumpstead, Mos. 74; Green v. Weaver, 1 Sim. 404.

97 Story, Eq. Pl. § 522; Southall v.

Tahourden, 2 Atk. 392.

Younge, 308; Chauncey v.

98 Story, Eq. Pl. § 523; Parkhurst v. Lowten, 1 Mer. 391.

lead to a legal accusation of a crime.99 The objection is confined strictly to the point of the discovery sought, and does not affect the jurisdiction of the court to grant relief. A party shall not protect himself against relief in a court of equity by alleging that, if he answers the bill filed against him, he must subject himself to the consequences of a supposed crime, although the court will not force him, by his own oath, to subject himself to punishment.100

§ 215. Demurrer for defects of form.

Defects for want of form must ordinarily be taken advantage of by demurrer assigning the defect of form as a special cause. Usually, the court will not entertain special objections at the hearing, if the case stated is such that it can properly proceed to a decree.101 The want of form itself, most usually insisted on, is the want of certainty in the allegations, or the loose and inartificial structure of the bill, or the omission of some prescribed formularies.102 In regard to the latter, it is said that any irregularity in the frame of a bill, not only of this sort, but of any other sort, may be taken advantage of by demurrer; as, for example, if a bill is brought contrary to the usual course of the court.103 Where a bill consists of a great variety of circumstances which might sustain the relief asked, with some modifications, the demurrer will not properly lie.104

§ 216. Multifariousness.

The objection that a bill is multifarious, when it appears upon the face of the bill, may be taken by demurrer.1

105

99 Mitford, Eq. Pl. 194, 195; Cooper, Eq. Pl. 202; Story, Eq. Pl. § 524; Lichfield v. Bond, 6 Beav. 88. See post, § 811.

100 Story, Eq. Pl. § 525; Mitford, Eq. Pl. 196.

101 Story, Eq. Pl. § 528.

102 Story, Eq. Pl. § 528.

103 Story, Eq. Pl. § 528; Mitford, Eq. Pl. 206, 207. See supra, §§ 70 et seq.

104 Story, Eq. Pl. § 528; Brooke v. Hewitt, 3 Ves. 253.

105 Story, Eq. Pl. §§ 530-541; Campbell v. Mackay, 1 Mylne & C. 618; Ward v. Northumberland, 2 Anstr. 469; Salvidge v. Hyde, 5 Madd. 138;

$217. Demurrer for want of parties.

Whenever the want of proper parties appears on the face of the bill, it constitutes a good ground of demurrer.106

218. Misjoinder of parties.

If the misjoinder is of parties as complainants, all the defendants may demur; if of parties as defendants, those only can demur who are improperly joined.10 If a person is improp

erly joined as a defendant who is without the jurisdiction, and is therefore a party only by virtue of the usual prayer of process, such misjoinder will not affect the case; for, until he has appeared and acted, no decree can be had against him.108

§ 219. Frame of demurrer.

The demurrer should be entitled in the cause, and is headed "The demurrer of A. B., one," etc., "of [or of A. B. and C. D.] the above-named defendants, to the bill of complaint of the above-named complainant." If it should be accompanied by a plea or by an answer, it should be called in the title "the demurrer and plea" or "demurrer and answer."109 Where it is to an amended bill, it need not be expressed in the title to be a demurrer to the original and amended bill, but a demurrer to the amended bill will be sufficient.110 As it confesses the mat

ters of fact to be true as stated by the opposite party, it is always preceded by a general protestation against the truth of

Mitford, Eq. Pl. 181, 182; Shackell v. Macaulay, 2 Sim. & S. 79. See, on this point, supra, § 107 et seq. See Dillard & Coffin Co. v. Smith, 105 Tenn. 372, 59 S. W. 1010.

106 Story, Eq. Pl. § 541; Cockburn v. Thompson, 16 Ves. 325. This question has been heretofore fully considered in section 56. See, also, Wormley v. Wormley, 8 Wheat. (U. S.) 451.

107 Story, Eq. Pl. § 544.

108 Story, Eq. Pl. § 544. The right to demur for misjoinder of parties has been heretofore considered in section 59.

109 Beach, Mod. Eq. Pr. § 267; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 585.

110 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 585; Smith v. Bryon, 3 Madd.

428

the matters contained in the bill.111 This clause has no effect in limiting admissions as to facts properly alleged in the pending suit.112 If the demurrer is to part of the bill, it must proceed distinctly to point out the parts of the bill to which it is intended to apply.113 A demurrer, however, to all the bill, except as to a particular specified part, is not open to objection. In framing such a demurrer, however, care must be taken that it should appear distinctly by the demurrer itself what part of the bill is to be included in the exception; otherwise, the demurrer is bad.114 Where there are two or more distinct demurrers to different portions of the bill, the different portions of the bill to be covered by each demurrer must be distinctly pointed out.115 Care should be taken to frame the demurrer correctly with the nature of the bill.118 The demurrer must express some cause of demurrer, either general or specific. It is not sufficient to say generally that the defendant demurs to the bill.117 A demurrer for want of parties must show who are the necessary parties in such a manner as to point out to the complainant the objection to his bill, so as to enable him to amend by adding proper parties; and in case of a demurrer for multifariousness, a mere allegation that the bill is multifarious will be informal. It should state, for the ground of demurrer, that the bill unites distinct matters on one record, and show the inconvenience of so doing.118 The demurrer,

1111 Daniell, Ch. Pl. & Pr. (4th Ed.) 585; Story, Eq. Pl. § 457; Mit ford &T. Pl. & Pr. in Eq. 309. See supra, § 199.

112 Taylor v. Holmes, 14 Fed. 498.

118 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 585; Story, Eq. Pl. §§ 457, 465; Munch v. Shabel, 37 Mich. 166; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Ormsby v. Union Pac. Ry. Co., 4 Fed. 170. See supra, § 192.

114 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 585; Clancy v. Craine, 17 N. C. 364. A demurrer "to all that part of the bill not pleaded or demurred to for want of jurisdiction" is bad for want of certainty. Payne v Berry, 3 Tenn. Ch. 154, citing Devonsher v. Newenham, 2 Schoales & L. 205.

115 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 586.

116 Story, Eq. Pl. § 458a.

117 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 586.

118 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 586; Dwight v. Central Vermon