cause may be determined on its merits.152 An application for leave to amend a bill, after a demurrer has been sustained thereto, is addressed to the discretion of the court.153 When a demurrer going to the merits of the whole bill is sustained for want of equity, it is not the practice to allow amendments, so as to make a new case with new parties.154 It is not error to dismiss a bill on demurrer if it is without equity. If the equities are defectively stated, the bill may be retained for amendment.155 It is said that it is usual, on allowing a demurrer for any cause which the court sees, on the argument, may be obviated by amending the bill, to give leave to amend on paying the costs of demurrer; but that where the court, on the argument, cannot see, from the facts before it, how the objection on which the demurrer was sustained could be removed, it is necessary for the complainant to apply for leave to amend by petition, setting forth the additional facts sought to be incorporated in the bill.156 Where a demurrer is sustained, unless leave to amend is asked, a dismissal of the bill is the proper decree. By omitting to ask leave to

152 Colbert v. Daniel, 32 Ala. 314; Ferrill v. Perryman, 34 Ga. 576; Davis v. Clabaugh, 30 Md. 508; Tindal v. Drake, 51 Ala. 574; Frazer v. Legare, Bailey, Eq. (S. C.) 389.

153 Campbell v. Powers, 139 Ill. 128, 28 N. E. 1062; Dowell v. Applegate, 8 Fed. 698; Magruder v. Campbell, 40 Ala. 611; Edward P. Allis Co. v. With lacoochee Lumber Co., 105 Fed. 680; Boston & A. R. Co. v. Parr, 98 Fed. 483.

154 March v. Mayers, 85 Ill. 177.

155 Puterbaugh v. Elliott, 22 Ill. 157; Barnard v. Cushman, 35 Ill. 451; Pickens' Ex'rs v. Knisely, 36 W. Va. 794, 15 S. E. 997; Lincoln v. Purcell, 2 Head (Tenn.) 143; Lea v. Robeson, 12 Gray (Mass.) 280; Lyon v. Tallmadge, 1 Johns. Ch. (N. Y.) 184; McElwain v. Willis, 3 Paige (N. Y.) 505.

156 Bank of Michigan v. Niles, Walk. (Mich.) 398. Where the court rejects all the grounds of demurrer to a bill urged by counsel, and sustains the demurrer, on the ground of laches, which ground was not urged by counsel, thus taking the complainant by surprise, and enters a decree dismissing the bill, it is error to refuse to vacate such decree, and permit an amendment by complainant fully explaining everything savoring of laches or acquiescence. Cottrell v. Watkins, 89 Va. 801, 17 S. E. 328, 37 Am. St. Rep. 897, 19 L. R. A. 754.

amend, the complainant elects to stand by his bill.157 In Illi nois, a complainant, willing to rest his case upon a demurrer, must move the court to dismiss the bill. Such a decree is final, and appeal or error will then lie. A decision on the demurrer is merely interlocutory.158 A demurrer, being frequently on matter of form, is not, in general, a bar to a new bill; but if the court, on demurrer, has clearly decided on the merits of the questions between the parties, the decision may be pleaded in another suit.159 Where a demurrer for multifariousness is sustained, the complainant may dismiss his bill as to those defendants by the joinder of whom the bill is rendered bad, and proceed as to the rest.160 Where a demurrer, although containing several grounds, is single, and directed to the whole bill, the effect of sustaining any one ground is to sustain the entire demurrer.1

§ 230. Form of order sustaining demurrer.

[Title of court and cause.]

161

This cause coming on now to be heard upon the demurrer of the defendant, C. D., filed herein, to the bill of complaint, after argument of counsel and due deliberation by the court:

It is hereby ordered that the demurrer to the bill of complaint in said cause be sustained.

And it is further ordered that leave be, and the same is hereby, given the complainant to amend his bill of complaint herein within five days from this date.

157 McDowell v. Cochran, 11 Ill. 31; De Louis v. Meek, 2 G. Greene (Iowa) 55, 50 Am. Dec. 491; Aldine Mfg. Co. v. Phillips, 118 Mich. 162, 76 N. W. 371, 42 L. R. A. 531.

158 Knapp v. Marshall, 26 Ill. 63; Weaver v. Poyer, 70 Ill. 567; Martin v. Jamison, 39 Ill. App. 257; Shaw v. Hill, 67 Ill. 455; American Live Stock Commission Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. 274.

159 Mitford, Eq. Pl. 216; 1 Barbour, Ch. Pr. 111, 112. See post, § 579 et seq.

180 Johnson v. Brown, 2 Humph. (Tenn.) 327, 37 Am. Dec. 556. It is said that where a defendant demurs to a portion of a bill, and raises questions of fact by answer to the balance, when such demurrer is sustained, and the complainants elect to abide by their bill, the complainant is entitled to have the case set down for a hearing upon the questions raised by the answer. Brewster v. Cahill, 81 Ill. App. 626.

181 Tatum v. Tatum, 111 Ala. 209, 20 So. 341.

231. Form of order sustaining demurrer and dismissing bill (in Illinois).

[Title of court and cause.]

This cause coming on now to be heard upon the demurrer of the defendant, C. D., filed herein, to the bill of complaint, after argument of counsel and due deliberation by the court, which is fully advised in the premises:

It is ordered, adjudged, and decreed that the demurrer of the said defendant to the bill of complaint be, and it is hereby, sustained, on the ground that there is no equity in the said bill.

And the complainants electing to stand by their said bill of complaint, and moving that, if the court holds that there is no equity in the said bill, the court dispose of it, in order that they may, by appeal or writ of error, secure the review of the action of the court in so holding; and the court finding that there is no equity in the said bill:

It is therefore ordered, adjudged, and decreed that said bill of complaint be, and it is hereby, dismissed out of court for want of equity, and at complainants' costs, and that this decree be treated and regarded and stand in all respects as the final decree in this cause.

§ 232. Overruling demurrer.

Where a demurrer to a bill is overruled, a final decree without giving defendant an opportunity to deny the allegations in the bill is erroneous.162 The correct practice is not to render a decree, but to make an order requiring the defendant to answer, and, if he does not do so, to take the bill as confessed.1

163

162 Smith v. Ballantyne, 10 Paige (N. Y.) 101; Sutton v. Gatewood, 6 Munf. (Va.) 398; Bowman v. Marshall, 9 Paige (N. Y.) 78; Lambert v. Lambert, 52 Me. 544. For practice in federal court, see United States Equity Rule 34; Wooster v. Blake, 7 Fed. 816; Fellows v. Hall, 3 McLean, 487, Fed. Cas. No. 4,723.

163 Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 434, 34 N. E. 417; Jocelyn v. White, 98 Ill. App. 50; Miller v. Davidson, 8 Ill. 518, 44 Am. Dec. 715; Creasey v. St. George's Soc. of Detroit, 34 Mich. 51; Nichols v. Heirs of Nichols, 8 W. Va. 174; Hays v. Heatherly, 36 W. Va. 613, 15 S. E. 223; Billingslea v. Manear, 47 W. Va. 785, 35 S. E. 847, distinguishing Foley v. Ruley, 43 W. Va. 513, 27 S. E. 268. It is said, however, to be entirely within the discretion of the court whether a defendant will be ruled to answer after a demurrer has been overruled. The court may enter a decree against the defendant at once, or may hear evidence, or refer the case to a master to hear evidence, before entering a decree. Iglehart v. Miller, 41 Ill. App. 442; Roach v. Chapin, 27 Ill. 194; Wangelin v. Goe, 50 Ill. 459; Miller v. Davidson, 8 Ill. 518; Bruschke v. Nord Chicago Schuetzen Verein, 145 Ill. 434, 34 N. E. 417.

Leave to file a plea after a demurrer is overruled will not be granted where it is manifest that the plea offered, if true in fact, would be no bar to the relief sought by the bill.164 If a demurrer is overruled because the facts do not sufficiently appear upon the face of the bill, defense may be made by plea stating the facts necessary to bring the case truly before the court, though this right has been denied.165 After a demurrer has been overruled, a second demurrer will not be allowed.166 The overruling of a demurrer does not prevent the defendant from making the same objections in his answer, nor preclude the court from an examination of them at the hearing.187 A demurrer, being a mute thing, cannot, like a plea, be ordered to stand for an answer.1 168 Where a demurrer going to the whole bill is overruled, it is an adjudication that the complainant is entitled to some relief; but the extent of the relief is still an open question.169 An order simply sustaining, or an order overruling, a demurrer, is not final.170 Where there is a demurrer to the whole bill, and also to part, and the latter only is sustained, the proper decree is to dismiss so much of the bill as seeks relief

164 Seeley v. Price, 5 N. J. Eq. 231. See Brent v. Washington's Adm'r, 18 Grat. (Va.) 526, for right of court to enter decree where demurrer by one already in default for want of answer is overruled, and defendant does not ask leave to answer.

165 Mitford, Eq. Pl. 216; Story, Eq. Pl. § 460; Mitford & T. Pl. & Pr. in Eq. 310; East India Co. v. Campbell, 1 Ves. Sr. 246.

166 Mitford &T. Pl. & Pr. in Eq. 310; Story, Eq. Pl. § 460; Baker v. Mellish, 11 Ves. 70; Fuller v. Knapp, 24 Fed. 100. See Hoge v. Junkin, 79 Va. 220; Booth v. Stamper, 10 Ga. 113.

167 Avery v. Holland, 2 Overt. (Tenn.) 71, citing Dormer v. Fortescue, 2 Atk. 284. It is said that, if a demurrer be overruled on argument, defendant must make a new defense, and it is not respectful to the court to set up the same defense in an answer. Tison v. Tison, 14 Ga. 167, citing Townsend v. Townsend, 2 Paige (N. Y.) 413.

168 1 Barbour, Ch. Pr. 113; Anonymous, 3 Atk. 530.

169 Johnson v. Wheelock, 63 Ga. 623. It is said that the overruling of a demurrer without assigning any reason therefor does not determine finally the sufficiency of the bill, but only that there is sufficient equity on its face to require an answer. Battle v. Street, 85 Tenn. 282, 2 S. W. 384; McNairy v. City of Nashville, 2 Baxt. (Tenn.) 251. 170 Rose v. Gibson, 71 Ala. 35; Armor v. Lyon, 1 Colo. 7.

in reference to the matters adjudged to be bad, overrule the demurrer as to the residue, and direct the defendant to answer thereto.171 A final decree granting the relief asked overrules all the demurrers to the bill.172 Where a demurrer is overruled, and an order is entered that an answer be put in within a time specified, or that the bill be taken as confessed, if further time to answer is necessary, an ex parte order for that purpose is irregular. Defendant must apply to the court, after notice to complainant's solicitor, for further time.173 Where the court enters a decree for the complainant without in terms overruling a demurrer, its action is equivalent to overruling the demur

rer. 174

§ 233. Form of order overruling demurrer.

[Title of court and cause.]

This cause coming on to be heard upon the demurrer of the defendant, C. D., filed herein, to the bill of complaint, after argument of counsel and due deliberation by the court, said demurrer is overruled, and

It is ordered that the said defendant, C. D., answer the bill of complaint herein within ten days from this day.

§ 234. Taking demurrer off the files.

Under the old chancery practice, if the defendant omits to put in his demurrer, or to answer, within the time limited by the order, and an attachment is in consequence issued against him for want of an answer, a demurrer, even though coupled with an answer, will be irregular. The proper course, in such a case, is to move that the demurrer and answer be taken off the files, and not that the demurrer be overruled.175 When a demurrer is taken off the files for irregularity, it ceases to be a record of the court, and the defendant may therefore put in another de

171 Giant Powder Co. v. California Powder Co., 98 U. S. 126.

172 Cochran v. Miller, 74 Ala. 50; Hinchman v. Ballard, 7 W. Va. 152. 173 Hurd v. Haynes, 9 Paige (N. Y.) 604. For practice on such appli cation, see Atlantic Ins. Co. v. Lemar, 10 Paige (N. Y.) 385.

174 Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521.

175 1 Barbour, Ch. Pr. 113; Curzon v. De la Zouch, 1 Swanst. 185