fore the time for answering is out, the plaintiff cannot, at How obtained. the expiration of the time, move as of course for an injunc

the end, the ancient brevity and succinctness in bills and other pleadings may be restored and observed. Much less may any counsel insert therein matter merely criminous or scandalous, under the penalty of good costs to be laid on such counsel."

Impertinence consists (1 Harr. Pr. 101, 303,) in setting forth what is not necessary to be set forth, as where the pleadings are stuffed with long recitals, or with long digressions of matters of fact which are totally immaterial. An answer, or a bill, ought not, ordinarily, to set forth deeds in hæc verba; and if the pleader sets forth only so much thereof as is material to the point in question, it is sufficient. They are matter of evidence to be shown at large at the hearing. In Alsager v. Johnson, 4 Ves. 217, a bill of costs was given at large in the schedule to the answer, when a reference to the bill of costs delivered would have fully answered the purpose, and it was deemed impertinent. The present is not an instance of gross abuse of this rule of pleading; but I am glad to see the exception taken, and the point brought up, for the opportunity it affords of laying down the rule. I have frequently perceived the pleadings, and particularly the bill, encumbered with a recital, in hæc verba, of deeds, mortgages, and other documents, which, unless checked, will lead to great oppression of the suitor, and to the reproach of the court. Whenever a proper case arises, I shall certainly mark it with animadversion; and shall endeavor to enforce, by all suitable means, precision and brevity in pleading. The objection to unnecessary folia, may be taken on the taxation of costs.

The ancient rules and orders of the English court of chancery, are very explicit, and powerfully monitory on this subject.

If any pleading should be found of an immoderate length, Lord Bacon declared, that both the party and the counsel, under whose hand it passed, should be fined. And Lord Keeper Coventry, with the advice of Sir Julius Caesar, the master of the rolls, in 1635, ordained, that bills, answers, &c. 'should not be stuffed with the repetitions of deeds or writings in hæc verba, but the effect and substance of so much of them only as was pertinent and material to be set down, and that in brief and effectual terms, &c., and upon any default therein, the party and counsel, under whose hand it passed, should pay the charge of the copy, and be further punished as the case should merit." The same rule was afterwards adopted or re-enacted by the lords commissioners in 1649, and in Lord Clarendon's Digest or System of Rules, (Beame's Orders, 25, 69, 165.)

But we have a domestic precedent on this point, which is too interesting to be unnoticed.

In 1727, Governor Burnet, of the colony of New York, exercising, in council, the powers of a court of chancery, appointed five of the most distinguished counsel of the court, as a committee, "to consider and report on the fees and dilatory proceedings in the court of chancery, as true and great grievances." This committee, consisting of Archibald Kennedy, Rip Van Dam, Cadwallader Colden, James Alexander and Abraham Van Horn, reported to the council a number of abuses in the practice of the court of chancery, and the remedy. This report, which is inserted at the end of Bradford's edition of the colony laws, is a curious and instructive document; but my concern, at present, is only with what is termed the first abuse and remedy. It declares, abuse, the inserting, at too much length, in bills, matters of inducement only.

as an

How obtained. tion for want of answer; but he *is then in the same situ

Effect of plea or demurrer.

ation as if the time for answering was not out, and must move upon notice and affidavit of circumstances.(a)

If the defendant, before the time for answering be out, puts in a plea, or demurrer, or both, an injunction cannot be granted while they are pending.()[1] But though in gene

(a) Neale v. Wadeson, 1 Bro. C. C. 574, S. C.; 1 Cox, 104. Harris v. Montgomery, cit. ib. Macnamara v. Kinderley, 1 Fowl. Ex. Pr. 276.

(b) Anon. Sel. Ca. Ch. 24. Humphreys v. Humphreys, 3 P. W. 396. Cousins v. Smith, 13 Ves. 165.

Thus, if A. has been entitled to the thing in question, who conveyed it to B., who conveyed it to C., who conveyed it to the plaintiff'; after the thing is certainly set forth in A., it is enough to say, he conveyed it to B., and he to C., and he to the plaintiff, as, by the deeds ready to be produced, will appear." No counsel, say they, ought to set their hands to any bill that is unduly long, and if he does, he ought to pay all the charges arising from such needless length. Every bill shall be expressed in as brief and succinct terms as it reasonably can be, and shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments, in hæc verba, or any other impertinent matter, or any scandalous matter not relevant to the suit. If it does, it may on exceptions be referred to a master by any judge of the court for impertinence or scandal, and if so found by him, the matter shall be expunged at the expense of the plaintiff, and he shall pay to the defendant all his costs in the suit up to that time, unless the court or a judge thereof shall otherwise order. If the master shall report that the bill is not scandalous or impertinent, the plaintiff shall be entitled to all costs occasioned by the reference. No order shall be made by any judge for referring any bill, answer, or pleading, or other matter, or proceeding depending before the court for scandal or impertinence, unless exceptions are taken in writing and signed by counsel, describing the particular passages which are considered to be scandalous or impertinent; nor unless the exceptions shall be filed on or before the next rule day, after the process on the bill shall be returnable, or after the answer or pleading is filed. And such order, when obtained, shall be considered as abandoned, unless the party obtaining the order shall, without any unnecessary delay, procure the master to examine and report for the same on or before the next succeeding rule day, or the master shall certify, that further time is necessary for him to complete the examination. (See rules 26th & 27th of Sup. Ct. of U. S.)

[1] This is obvious from the very definition of demurrer. According to Lord Coke, the word demurrer comes from the latin word demorari, to abide, and therefore he that demurreth in law is said to abide in law; moratur, or demoratur in lege. He will go no further until the court has decided whether the other party has shown sufficient matter in point of law to maintain his suit. Co. Litt. 71; Cooper's Eq. Pl. 110; 3 Blk. Com. 314.

Whenever any ground of defence is apparent on the bill itself, either from the matter contained in it, or from the defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. A demurrer is an allegation of a defendant, which, admitting the matters of fact alleged by the bill to be true, shows, that as they are therein set forth, they are insufficient for the plaintiff to proceed upon, or to oblige the defendant to answer; or that for

ral a demurrer may be filed at any time before process of How obtained. contempt has been issued, or an order for time obtained,

some reason apparent on the face of the bill, or because of the omission of some matter, which ought to be contained therein, or for want of some circumstance, which ought to be attendant thereon, the defendant ought not to be compelled to answer. It therefore demands the judgment of the court, whether the defendant shall be compelled to make answer to the plaintiff's bill, or to some certain part thereof.

The causes of demurrer must be upon some matter in the bill, or upon the omission of some matter, which ought to be therein, or attendant thereon; and not upon any foreign matter alleged by the defendant. The principal ends of a demurrer are, to avoid a discovery, which may be prejudicial to the defendant, or to cover a defective title, or to prevent an unnecessary expense. If no one of these ends is obtained, there is little use in a demurrer. For, in general, if a demurrer would hold to a bill, the court, although the defendant answers, will not grant relief upon hearing the cause. There have been, however, cases, in which the court has given relief upon the hearing, although a demurrer to the relief would probably have been allowed. But such cases

are rare.

A demurrer may be to the whole bill, or to a part only of the bill; and the defendant may therefore demur as to a part, plead as to another part, and answer as to the rest of the bill. But care must be taken, that each of these modes of defence is actually applied to different and distinct parts of the bill, and that, as applied, each is consistent with the other; so that one does not overrule the other. Thus, for example, if there is a demurrer to the whole bill, an answer to a part thereof is inconsistent; and the demurrer will be overruled. For the same reason, if there is a demurrer to a part of a bill, there cannot be a plea or answer to the same part, without overruling the demurrer.

If a demurrer is too general, that is, if it covers, or is applied to the whole bill, when it is good to a part only; or if it is a demurrer to a part of a bill only, but yet is not good to the full extent, which it covers, but is so to a part only, it will be overruled; for it is a general rule, that a demurrer (it is otherwise as to a plea) cannot be good as to a part, which it covers, and bad as to the rest; and therefore it must stand or fall altogether. So, if a demurrer does not cover so much of the bill, as it might by law have extended to, it has been held to be bad. But a demurrer may be put in, and several causes assigned; and if one cause is good to the whole extent of the demurrer, and another is bad, the demurrer will be sustained; for, if both were bad, the defendant may, ore tenus, assign new causes of demurrer at the argument to matters of substance, although not to matters of form; so that any one good cause, existing of record, or otherwise assigned, will do.

And a defendant may put in separate demurrers to separate and distinct parts of a bill for separate and distinct causes; for the same grounds of demurrer frequently will not apply to different parts of a bill. And if separate demurrers are put in to different and distinct parts of a bill, one demurrer may be overruled upon argument, and another be allowed. So that, in this way, the hazard of one general demurrer to all the objectionable parts of a bill may be avoided.

Where there are several defendants, if they all join in one demurrer to a bill, the demurrer may be good, and be allowed, as to one of the defendants, and be bad, and disallowed as to the other defendants; for the defence may be

How obtained.

[*89]

even though the period for answering be expired; (c)[2] yet where *a defendant has permitted an injunction to go against him upon a dedimus, the time for answering being expired, he will not be allowed to demur alone, although he is neither in contempt, nor under an order for time.(a)[1]

(a) East India Co. v. Henchman, 3 Bro. C. C. 372. Sowerby v. Wurder, 2 Cox, 268.

(b) Edmonds v. Savery, 3 Meriv. 304.

good as to one person, and be wholly inapplicable to another. And there is a clear, although a nice, distinction between a demurrer, which is too large in regard to all the defendants, and one, which is too large or inapplicable to some of the defendants. In this respect, there is a difference between pleadings in law and in equity; for a joint demurrer, or a joint plea, bad as to one defendant, is at law bad as to all. Story's Eq. Plead. pp. 485-489.

[2] Under the former chancery practice of the State of New York, the de. fendant, as a general rule, after having obtained time to answer, could not demur; and the court would allow a defendant to put in a demurrer, after he had obtained an order for time, only in certain special cases. But under the code, an order enlarging the time to answer is an extension of the time to demur. Broadhead v. Broadhead, 4 How. Pr. Rep. 308. The court (per Parker, J.) in this case, says: "The plaintiffs ask to strike out the demurrer as irregular, on the ground that the enlargement of the time to answer gave the defendants no additional time to demur. It was held in the late court of chancery in Burrell v. Raineteaux, 2 Paige, 331, that, after a general order made by a vice-chancellor, at chambers, giving further time to answer, the defendant could not put in a demurrer, except on special leave of the court; and if he put in such demurrer without leave, it would be ordered to be taken off the files of the court for irregularity. But this decision rested on the ground that the time to demur could not be enlarged by a chamber order, but that an order of the court was necessary for that purpose. In this respect, the court of chancery followed the English practice. 1 Wils. Ch. Rep. 468. 3 Swans. Rep. 683 An order to enlarge time to answer could be made at chambers, but an order to enlarge time to demur could only be made in court. In Bedell v. Bedell, 2 Barb. Ch. Rep. 99, it was held that this principle did apply to a case of an extension of the time by the voluntary stipulation of the complainant's solicitor. In such case, an extension of time to answer gave the defendant the right to demur within the extended time. In its more liberal sense, the demurrer is an answer to the complaint, and so it was regarded under the late chancery practice. It was not the restricted meaning of the word "answer," but a want of power to use the words "at chambers" in their more liberal sense, that led to the decision in 2 Paige. Under the code, there is no question as to the power of a judge at chambers to extend the time to demur, as well as to answer. The time within which any proceeding in the action must be had after its commencement, except the time within which an appeal must be taken, may be enlarged by a justice of the supreme court, or a county judge. An enlargement of the time to answer is, therefore, under our present practice, an extension of the time to demur.

[I] In certain special cases, such as surprise, the court will allow a defendant to put in a demurrer, even after he has obtained an order for time. Bruce

To remedy as much as possible the delay occasioned by How obtained. this species of defence, the courts will always permit a plea or demurrer to an injunction bill to be argued out of their regular course. In the exchequer, the plaintiff applies for a short day for the argument, when the court usually appoints the third day after the application; and if upon a rule given to argue, the plea or demurrer is neglected to be set down, for argument, or if set down, is abandoned by the defendant's counsel, or is overruled, the plaintiff may immediately move for an injunction, which will be granted till answer or further order.(a)

As a defendant may plead to part, demur to part, and answer to the rest of the bill; [2] if, upon argument, either

(a) 1 Fowl. Ex. Pr. 235, 236. v. Bradbury, ib. n.

Vide also Lamb v. Bowes, Bunb. 11. Ram

v. Allen, 1 Mad. Rep. 556. But the general rule is that the defendant, after having obtained time to answer, cannot demur. Dyson v. Benson, Coop. Ca. 110. Burrall v. Rainetaux, 2 Paige, 331. 2 Bro. C. R. 214. 10 Ves. 444.

It is always made the special condition of an order giving the defendant time to demur, plead, or answer the complainant's bill, that he shall not demur alone. Whenever, 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. Mitf. 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. Id. ib. 2 P. Wms. 286. But in another case, (Tompkin v. Lethbridge, 9 Ves. 169,) which was a bill for a discovery, the answer gave no information, but simply stated the death of a person, and denied combination. Lord Eldon said that according to the practice of the court, if the defendant had been under the order not to demur alone, the addition of this short answer would have saved the terms of that order. But though an answer as to a single fact will be a sufficient compliance with the condition, such fact must not be one which is covered by the demurrer; otherwise the demurrer will be overruled by the answer. 2 Dan. 81.

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; 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. Curzon v. De la Zouch, 1 Swanst. 193. 2 Dan. Pr. 81.

[2] The New York Code of Procedure of 1851 provides that the defendant may demur to one or more of several causes of action stated in the complaint, and answer the residue. Code, sec. 151. There was no section to correspond with this in the code of 1848, and it was held in the case of Manchester v. Storrs, 3 How. Pr. Rep. 310, upon a construction of that code, that a demurrer could be interposed only to the entire complaint. In the case of People v. Meyer, 2 Code. Rep. 49, and Gilbert v. Davis, 2 Code Rep. 50, upon a construction of the code of 1849, it was held that a defendant might both demur and