This clause has no effect the matters contained in the bill.111 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.116 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.1 The demurrer, 118 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 Vermonı having assigned the cause or causes of demurrer, then proceeds to demand judgment of the court whether the defendant ought to be compelled to put in any further or other answer to the bill, or to such part thereof as is specified as being the subject of the demurrer, and concludes with a prayer that the defendant may be dismissed with his reasonable costs in that behalf sustained.119 If a demurrer is to part of the bill only, the answer, if any, to the remainder, usually follows the statement of the cause of demurrer and the demand of judgment.120 The demurrer must be signed by counsel. It need not, however, be signed by the defendant.121 Where a solicitor has appeared in a cause, and a demurrer is filed, signed by solicitors who have not appeared, it may be treated as without signature, and as a nullity.122 As a demurrer asserts no fact, and relies merely on matters apparent on the face of the bill, it is put in without oath,123 § 220. Forms of demurrers-For want of equity. [Title of court and cause.] The demurrer of C. D., defendant, to the bill of complaint of A. B., the above-named complainant: This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in the complainant's bill of complaint contained to be true, in such manner and form as the same are therein set forth and alleged, doth demur to said bill, and for cause R. Co., 9 Fed. 785; Chambers v. Wright, 52 Ala. 444; Parker v. Cochran, 97 Ga. 249, 22 S. E. 961; Dias v. Bouchaud, 10 Paige (N. Y.) 445; Caldwell v. Blackwood, 54 N. C. 274; Robinson v. Dix, 18 W. Va. 528; Hightower v. Mustain, 8 Ga. 506. See supra, § 57. (4th Ed.) 589. 119 1 Daniell, Ch. Pl. & Pr. 120 1 Daniell, Ch. Pl. & Pr. 121 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 590; Story, Eq. Pl. § 461; 1 Barbour, Ch. Pr. 109; Mitford, Eq. Pl. 208. 122 Graham v. Elmore, Har. (Mich.) 265. 123 1 Barbour, Ch. Pr. 109; Story, Eq. Pl. § 461; Mitford, Eq. Pl. 208. In the federal courts it is required that a demurrer shall have attached thereto an affidavit of the defendant that it is not interposed for delay, and also a certificate of counsel that in his opinion it is well founded in point of law. United States Equity Rule 31. See National Bank v. Insurance Co., 104 U. S. 55; Sheffield Furnace Co. v. Witherow. 149 U S. 574. of demurrer shows* that the complainant has not in and by his said bill made or stated such a case as does or ought to entitle him to any such discovery or relief as is thereby sought and prayed for from or against this defendant. Wherefore, and for divers other good causes of demurrer appearing in the said bill, this defendant does demur thereto, and humbly demands the judgment of this court whether he shall be compelled to make any further or other answer to the said bill, and prays to be hence dismissed, with his costs and charges in this behalf most wrong. fully sustained. C. D., Defendant. E. F., Solicitor for Defendant.124 For multifariousness. [After proceeding to the * in the above form, state cause of demurrer, as follows:] That it appears by the said bill that the same is exhibited by the complainant against this defendant and A. B., C. D., and E. F., as defendants thereto, for several distinct matters and causes, in many whereof, as appears by said bill, this defendant is not in any manner interested or concerned, and that said bill is altogether multifarious; and, by reason of such distinct matters, the said bill is drawn out to a considerable length, and, by joining distinct matters together which do not depend on each other, the proceedings in the progress of the said suit will be intricate and prolix, and this defendant put to unnecessary charges and expenses in matters which in no way relate to or concern him. [Insert matter after †.] For want of parties. [Insert after and before † the following:] That it appears by said complainant's bill that A. B., therein named, is a necessary party to said bill, inasmuch as it is therein stated that C. D., the testator in the said bill named, in his lifetime by certain conveyances made to the said A. B., in consideration of dollars, conveyed to him, by way of mortgage, certain estates in said bill particularly mentioned and described, for the purpose of paying the said testator's debts and legacies, but he, the said complainant, has not made the said A. B. a party to said bill. Want of privity. [Insert after and before the following:] That it appears by the complainant's said bill that there is no privity between the said com 124 If there is more than one cause of demurrer, insert before the conclusion a specification of such cause, which begins with the following: "And for further cause of demurrer, this defendant shows that, etc. [Here insert the further cause of demurrer, and conclude.]" plainant and this defendant, to enable the said complainant to call on this defendant for payment of any debt due to the estate of the said testator from this defendant. Splitting causes. That the said com [Insert after and before the following:] plainant, by his said bill, in order to split the cause and create a multiplicity of suits, seeks only to recover a part of an entire debt thereby stated to be due to him from this defendant, and in respect of the other parts of the said debt, as appears by his said bill, filed two several other bills of complaint in this honorable court against this defendant. -Want of interest in complainant, or title in subject-matter. [Insert after and before † the following:] That the said complainant has not, as appears by his said bill, made out any title to the relief thereby prayed. Want of interest in the defendant. [Insert after * and before † the following:] That the said complainant has not, by his said bill, which seeks to set aside the award therein set forth, and to which this defendant is made a party in his character of arbitrator, shown that he can have any decree against this defendant, whose answer could not be read as evidence against the other defendants to the said bill, or any of them, and the said complainant, for anything that appears in said bill to the contrary, might examine this defendant as a witness in this suit. Where an infant sues without a next friend. [Insert after and before the following:] That the said complainant, who appears by his said bill to be an infant under the age of twenty-one years, has exhibited his said bill without any person being therein named as his next friend. · Statute of frauds. [Insert after and before † the following:] That it appears by the said bill that neither the promise or contract which is alleged by the said bill, and of which the complainant, by the said bill, seeks to have the benefit, nor any memorandum or note thereof, was ever reduced into writing, or signed by this defendant or any person authorized thereto, within the meaning of chapter of the Revised Statutes of the state of for the prevention of frauds and perjuries. Demurrer to part of bill. [Title of court and cause.] The demurrer of A. B., the defendant, to the bill of complaint of C. D., the complainant: (257) This defendant, by protestation, not confessing or acknowledging all or any of the matters and things in said bill of complaint contained to be true, in such manner and form as the same are therein and thereby set forth and alleged, as to so much and such part of the said bill as seeks that this defendant may answer and set forth whether [indicating that part of the bill demurred to], and prays [if relief be prayed], doth demur, and for cause of demurrer shows [point out particularly the special defects relied on by demurrer]. Wherefore, and for divers other good causes of demurrer appearing in the said bill of complaint, as to so much thereof as is demurred unto as aforesaid, this defendant demurs, and prays the judgment of this honorable court whether he should be compelled to make any further answer to such parts of said bill as are so demurred to as aforesaid. Demurrer coupled with answer. [Title of court and cause.] The demurrer of A. B. to part, and his answer to the other part, of the bill of complaint of C. D., the complainant: This defendant [proceed as in the last form to the end, and continue as follows:] And this defendant, not waiving his said demurrer, but relying thereon, and saving and reserving unto himself all benefit and advantage of exception to the many errors, uncertainties, and imperfections in the residue of the said bill contained, for answer says: [Set out the answer in the usual form.] § 221. Filing demurrer. A demurrer may be filed within the time allowed the defendant to put in his answer, and it seems that it may be filed at any time afterwards, until the defendant is affected by process of contempt, by the return of an attachment with proclamations, or the entry of an order to take his bill as confessed.125 The time to demur is usually regulated by statute or rule of court.126 The general rule is that the defendant, after having obtained time to answer, cannot demur. But in certain special cases, such as surprise, the court will allow the defendant to 125 1 Hoffman, Ch. Pr. 213; 1 Barbour, Ch. Pr. 109; East India Co. v. Henchman, 3 Brown Ch. 372; Sowerby v. Warder, 2 Cox, 268; Sanders v. Murney, 1 Sim. & S. 225; Lane v. Ellzey, 4 Hen. & M. (Va.) 504; Oliver v. Decatur, 4 Cranch, C. C. 458, Fed. Cas. No. 10,494. 128 See Rule 1 of Chancery Rules of Circuit and Superior Courts of Cook County, Illinois. For federal practice, see United States Equity Rules 18, 32. |