How obtained. the plea or demurrer should be overruled, the plaintiff will be entitled to move, upon that suggestion, for an injunction; But this was denied in Slocum v. answer to the same cause of complaint. A demurrer to a bill in chancery must express the grounds on which it is Shed v. Garfield, 5 Verplanck v. Caines, Ch. Rep. 28. Thompson v. Newlin, 3 Iredell's Eq. Rep. 338. Contra, Pope v. Upon a demurrer to an amended bill, if any part of the discovery covered by such demurrer appears to be material and proper, for any purpose of the suit, the demurrer will be overruled. And the defendant cannot, upon the argument of the demurrer, insist that the discovery called for is contained in his former answer. Chazournes v. Mills, 2 Barb. Ch. Rep. 466. When a bill in equity seeks special and general relief, and also a discovery and relief is the principal object, and discovery is sought merely as incidental to the relief, if the plaintiff shows no title to the relief sought, a demurrer lies to the whole bill. Pool v. Lloyd, 5 Met. Rep. 525. A demurrer to a bill may be overruled in part and sustained in part. Pope v. Stansbury, 2 Bibb, 484. If a demurrer be general to the whole bill, and be bad in part, it must be overruled. If it be good for discovery, and not for relief, a general demurrer to the whole bill is bad; the defendant should in such case answer as to the discovery, and demur to the relief. Higinbotham v. Burnet, 5 Johns. Ch. Rep. 186. By demurring, the plaintiff admits the facts as stated in the bill. The State of Rhode Island v. The State of Massachusetts, 15 Peters, 333. Ocean Insurance Company v. Fields, 2 Story's Rep. 59. The court will not examine aliunde, what facts might or might not defeat the bill; for this is the office of an answer or plea. Ib. To a bill of discovery against a surviving partner, and for an account, a demurrer to the discovery, alleging that it might subject him to penalties under the laws of the United States, is bad; it should state why and wherefore a forfeiture would be the consequence of discovery. But whether it would be necessary or proper to state the nature of the commerce carried on, quære? Sharp v. Sharp, 3 Johns. Ch. Rep. 407. A defendant cannot plead or answer, and demur both, to the whole bill, or the same part of a bill. Clark v. Phelps, 6 Johns. Ch. Rep. 214. Beauchamp v. Gibbs, 1 Bibb, 481. The court inclined to the opinion that the filing of a general demurrer was to be considered as a waiver of all defects in the service of the subpoena. Ogden v. Gibbons, Halst. Dig. 170, s. 1. Where supplemental matter is improperly inserted in a bill of revivor and supplement, it does not authorize the defendant to demur to the whole bill; and even if both plea and demurrer should be overruled, How obtained. some equity may still be shown for granting or continuing he mould demur to the supplemental matter only. Randolph v. Dickerson, 5 Paige, 517. Where, from the complainant's bill, it appears that he has not brought his within the time limited by law for that purpose, the defendant may avail himself of the objection by demurrer, or by insisting upon the benefit of the statute in his answer. Van Hook v. Whitlock, 7 Paige, 373. A demurrer, bad in part, is bad in toto. But where a demurrer to the discovery is overruled, because it covers too much, on exceptions to the defendant's answer, he may raise the question of the materiality of the discovery. Kuypers v. Reformed Dutch Church, 6 Paige, 570. A plea cannot, in the court of chancery, be substituted in a demurrer. Evertson v. Ogden, Paige, 275. Upon a demurrer to the whole bill, the defendant cannot insist that some of the allegations of the complainant are unnecessary or impertinent. Beach v. Beach, 11 Paige, 161. After a demurrer to the whole of a bill has been argued and allowed, the bill is out of court, and therefore cannot be regularly amended; but where a demurrer leaves any part of the bill untouched, the whole may be amended, notwithstanding the allowance of the demurrer. Dudley v. Mallery, 4 Geo. Rep. 52. (Vide Story's Eq. Pl. § 459. 3 Mitf. Eq. Pl. by Jeremy, 215, 216, and cases cited. Cooper's Eq. Pl. 115. 11 Ves. 72.) On a bill of review, alleging that the decree was not enrolled, it will not do for the defendant to demur and insist in the pleading that the decree was enrolled. He would thus make it a speaking demurrer. The party should plead the decree, as enrolled, and demur against opening it. Nor should he therein allege a want of affidavit-this is matter for a motion. Tallmadge v. Lovett, 3 Edw. Ch. Rep. 563. A demurrer will not hold to an irregularity of practice, in regard to the bringing or filing of a bill, and his demurrer is overruled, and he decline answering over, he thereby admits all the allegations of the bill to be true, and he cannot afterwards question the correctness of the decree by denying the truth of those allegations. Miller v. Davidson, 3 Gillman's Rep. 518. The correct practice, on overruling a demurrer in chancery, is the entry of an order that the defendant answer the bill; and if he neglect so to do, the complainant may have the bill taken pro confesso, and the court will then render the proper decree. Ib. Where the demurrer does not go to the whole bill, it must clearly express the particular part which it is designed to cover, so that upon a reference of the answer to the residue of the bill upon exceptions for insufficiency, the master may be able to ascertain precisely how far the demurrer goes, and how much of the bill remains to be answered. Jarvis v. Palmer, 11 Paige, 650. Upon a general demurrer to a bill for relief, upon the ground of fraud, it is not necessary to inquire whether some grounds of relief stated in the bill, do not appear upon the face thereof, to be barred by lapse of time. If that question is sought to be raised on demurrer, it must be done by a separate demurrer to those particular parts of the bill. Radcliff v. Rowles, 2 Barb. Ch. Rep. 23. A general demurrer, without any special cause assigned, has the effect only to turn the inquiry upon the equities of the bill. Wellborn v. Tiller, 10 Ala. Rep. 305. Where discovery is incidental to relief, a demurrer, which is well takeu to the relief, holds good as to the discovery. Souza v. Belcher, 3 Edw. Ch. Rep. 117. When an objection to a bill is apparent on its face, it may be demurred to; but when not apparent in the bill itself, the proper mode of defence is by plea How obtained. an injunction arising out of the defendant's answer: thus where there was a demurrer, plea, and answer to an injunc Harris v. Thomas, 1 Smets v. Williams, 4 or answer. Alderson v. Biggars, 4 Hen. & Munf. 473. To a bill in chancery brought for a specific performance of a contract for the sale of lands, the defendant may avail himself of the statute of frauds, either by a plea or demurrer, unless in certain excepted cases, appearing on the face of the bill. Meach v. Stone, 1 D. Chip. 182. Where, to a bill in chancery filed by a purchaser of land, alleging a previous conveyance of part of the same premises, executed by his grantor, to have been obtained by fraud; and that the grantee under such fraudulent deed had entered into possession and held and occupied the premises, praying a discovery, an account, and general relief, the defendant demurred, relying upon his possession under his deed, as rendering void the conveyance to the complainant. Held, that the possession under the deed admitted by the demurrer to have been fraudulently obtained, could not be considered adverse so as to avoid the deed to the complainant, and the demurrer was overruled, and the defendant decreed to answer. Livingston v. Peru Iron Co. 9 Wend. 511. In a suit for specific performance of a contract in relation to land, if the agreement appears in the bill to be by parol, and no facts are alleged to take the case out of the statute of frauds, the defendant may demur to the bill. Cozine v. Graham, 2 Paige, 177. Where it appears upon the face of the bill that the complainant's suit is barred by the lapse of time, the defendant may demur to the bill on that ground. And it is not necessary to set up that defence by plea in such a case. Humbert v. Rector &c. of Trinity tion bill, the demurrer was overruled, and the plea ordered How obtained. to stand for an answer, with liberty to except; yet an injunction was granted upon the merits confessed in the answer.(a) (a) Mansfield v. Cook, 1 Fowl. Ex. Pr. 236. Church, Paige, 195. On a bill in chancery for the recovery of the rents and profits of real estate, when it appears from the bill itself that the premises were held adversely by the defendant for more than twenty years; if the complainant's case comes within any of the exceptions in the statute of limitations, the facts bringing the case within the exceptions, must be stated in the bill, or the defendant may demur. Ib. If the admission or discovery of a fact stated in the bill or called for by the interrogatories, cannot aid the complainant in his suit, or in obtaining the relief he claims, the defendant may demur. Kuypers v. Reformed Dutch Church, 6 Paige, 570. And where the complainant upon the whole case as stated in the bill is not entitled either to discovery or relief, the defendant should demur to the relief as well as to the discovery. Ib. By the statute law of Alabama, a demurrer to a bill in equity is no admission of the truth of the allegations in the bill, and it is error to enter a decree in a case where the bill has been demurred to without an answer, or a decree pro confesso. Forrest v. Robinson, 4 Porter, 44. A defendant can demur for want of proper parties only in those cases where it is apparent from the bill itself that there are other persons who ought to be made parties. Robinson v. Smith, 3 Paige, 222. It is good ground of demurrer to the whole bill, that a person who has no interest in the controversy, and has no equity as against the defendant, is improperly joined as a party complainant. Clarkson v. De Peyster, 3 Paige, 336. Where a general demurrer to the whole bill is overruled for want of equity, the defendant may demur ore tenus, upon the ground that the suit is brought by a feme covert in her own name, when she should have prosecuted by her next friend. v. Strong, 3 Paige, 440. Garlick Where it appears, on the face of the bill, that the complainant has omitted to bring before the court persons who are necessary parties, the defendant may demur. Mitchell v. Lenox, 2 Paige, 281. The objection of a misjoinder of parties complainants, should be taken either by demurrer or in the answer. It is too late to urge a formal objection of this kind for the first time, at the hearing. Trustees of Watertown v. Cowen, 4 Paige, 310. Where it appeared from a bill in chancery that a party defendant had had an interest in the subject-matter; and it did not appear clearly that he had parted with that interest; an exception to his being made a party, taken under a general demurrer to the bill, was held not to be sustainable. Crane v. Deming, 7 Conn. Rep. 387. But if it does not appear from the bill that a party defendant has, or ever had an interest; such a want of interest may be taken advantage of on a general demurrer. Ib. If a bill against husband and wife show an interest in the husband, but none in the wife, and both join in a general demurrer, it will be sustained as to her. Ib. To support an objection that other persons should have been made plaintiffs, it is necessary that this be clearly shown by the bill, or the defendant must aver it. Therefore, where it appeared from a bill of foreclosure that the mortgage was given to the plaintiff, acting in behalf of a turnpike company, but did not appear who composed the company; the non-joinder of such company was held not to be a ground of demurrer. ть. How obtained. *Where a demurrer has been put in, and any advantage has been gained at law by the defendant in equity, in conse Where no persons were designated as defendants in a bill, either by a prayer or process against them or by any statement that they were impleaded as defendants, the bill was adjudged bad on special demurrer. Elmendorff v. Delancy, Hopkins, 555. Whether it is necessary to make the insolvent partner a partner, in a case where the bill is filed against the representatives of a deceased partner, to obtain satisfaction of a partnership debt out of the estate of the decedent? Quære? Butts v. Genung, 5 Paige, 254. Where husband and wife file a joint demurrer, it may be overruled as to the husband, and sustained as to the wife. It is not necessary that she put in a separate demurrer. Wooden v. Morris, 2 Green's Ch. Rep. 65. A general demurrer, for want of equity, cannot be sustained, unless the court is satisfied that no discovery or proof properly called for by, or founded on the allegations in the bill, can make the subject-matter of the suit a proper case for equitable cognizance. Clark v. Davis, Harrington's Ch. Rep. 227. A testatrix bequeathed certain slaves to A. without mentioning any trust to be attached to the bequest. The next of kin of the testatrix filed a bill against A. alleging that the slaves were bequeathed to A. on the unlawful trust that he should permit them to reside in the state, and to enjoy their actual freedom while he was to be only a nominal master; and the bill stated some circumstances to justify this belief, and particularly that A. was a member of the Society of Friends and could not conscientiously hold slaves. The defendant demurred to the bill. Held, that the demurrer should be overruled and the defendant decreed to answer, whether the gift was an absolute one to him, or whether it was in trust, and if so, what was the object of the trust. Thompson v. Newlin, 3 Iredell's Eq. Rep. 338. Although a complainant cannot demand several matters of different natures against several defendants, by one bill, yet, where a general right is claimed, although the defendants have distinct rights, a demurrer will not hold. Garret v. Miss. and Ala. R. R. Co. Freeman's Ch. Rep. 70. If fraud be charged in a bill, no matter what species of defence the respondent adopt, he must negative the allegation of fraud. A general demurrer, therefore, to a bill charging fraud, is bad. Anderson v. Lewis, on appeal, Freeman's Ch. Rep. 206. An objection to the jurisdiction, on the ground that the complainant has plain and adequate remedy at law, must be made by demurrer or other pleading. It comes too late at the hearing. Miller v. Furse, Bailey's Eq. Rep. 187. A bill filed for relief and discovery, in aid of a suit at law, is demurrable, unless the complainant avers his inability to prove the facts upon which he relies at law, without resort to the conscience of the defendant; or show some other ground of equitable interference with the common law jurisdiction. Merchants' Bank v. Davis, 3 Kelly's Rep. 112. When a bill in equity seeks relief, which the court has no power to grant, and also secks a discovery, the defendant may demur to the whole bill, if it do not aver that a suit at law is pending or is about to be brought, in which a discovery may be material. Mitchell v. Green, 10 Met. Rep. 101. The objection that the complainant has submitted to the master's report, upon exceptions taken to the answer to the original bill, and that the amendments to the bill do not make a new case calling for a further discovery, cannot be raised by demurrer to the discovery sought by such amended bill. Chazournes v. Mills, 2 Barb. Ch. Rep. 466. Where two persons have a common interest in obtaining relief against a joint contract, and |