ANSWERS AND DISCLAIMERS (35).

XXVIII. Answer and disclaimer by the personal representatives of a mortgagee, relinquishing the security of the premises comprised in the plaintiff's mortgage.

In Chancery.

The joint and several answer and disclaimer of J. F. and R. C. two of the defendants to the original and amended bill of complaint of W. S., J. C., and T. P., complainants.

day

of the testator,

ants executors,

Say they do not claim any interest in the premises, nor object to the payment

These defendants &c. [see form No. 2. p. 3.] say they admit Admit the death that J. C. in the said bill named departed this life on the his will appointof, having first duly made his last will and testament whereby ing the defendhe appointed his sons these defendants joint executors thereof, and and that they that they these defendants proved the same in the Prerogative proved his will, Court of the Archbishop of York on the day of, and thereby became his legal personal representatives; And these defendants further severally answering say they do not claim any interest in the estates in the said bill stated to be charged with the annuities to the said complainants W. S. and J. C. therein mentioned of what is due to and with the mortgage therein also mentioned to be assigned to the plaintiff's, them; And these defendants further severally answering say they do not object to the payment of what may be due to the said complainants out of the rents and profits of the said estates; And these defendants do disclaim all right title and interest in and to the and disclaim all said estates and every part thereof; And these defendants deny &c. right and interest [see sect. IV. antea, p. 7.]

(35) See Ld. Red. Tr. Pl. p. 106, 318, 4th edit.; 2 Madd. Ch. Pr. 336.

in the estates.

Denies that he ever claimed, and now disclaims all right and inte

rest in the premises.

XXIX. Answer and disclaimer denying having ever claimed any right or interest in the premises in the bill mentioned.

Answer and disclaimer of A. B. the defendant to the bill of complaint of C. D. complainant.

This defendant &c. [see form No. 1. p. 3.] saith that he doth not know that he this defendant to his knowledge or belief ever had nor did he claim or pretend to have, nor doth he now claim any right title or interest of in or to the estates and premises situate &c. in the said complainant's bill set forth or any part thereof, and this defendant doth disclaim all right title and interest to the said estates and premises and every part thereof; And this defendant denies &c. [ see sect. IV. antea, p.7.]

Believes that the testator died seised of certain estates, that he made a will appointing defendant trus

tee,

and E. F. executor,

XXX. Answer and disclaimer of a trustee under a will, denying having ever interfered in the trusts or received the rents of the trust estates.

The several answer and disclaimer of A. B. one of the defendants to the bill of complaint of L. M. complainant.

This defendant &c. [see form No. 1. p. 3] answereth and saith that he believes that C. D. did die seised of such estates in -as in the said complainant's said bill are mentioned; And this defendant does believe that the said C. D. did make such last will and testament in writing and did thereby create such trusts out of the said

estates and appointed this defendant trustee thereof in such manner and to such purport and effect as in the said complainant's said bill for that purpose set forth; And this defendant does believe that the said testator made E. F. gent. executor of his said will; and this defendant does believe that the said C. D. soon after making that he died soon his said will departed this life, (that is to say): on or about the day of, without revoking or altering his said will, seised of such estates in as in the said complainant's said bill are set Saith that he re- forth; And this defendant further saith that he was advised that the said trust would be attended with some difficulty besides expense and loss of time to this defendant; therefore this defendant abso

after, seised of the estates.

fused to inter

meddle in the trusts,

ceived by G. H. who was the testator's receiver;

and that he has

continued to re

lutely refused to intermeddle therewith or in any way concern himself therein; And this defendant denies that he or any person or per- denies having ever entered inte sons for him ever entered on the said trust estate, or ever received possession ; any of the rents and profits thereof; but this defendant has been believes that the informed and believes that the same were received by G. H. of &c. rents were res gent. who was employed by the said testator C. D. in his life-time to receive the rents and profits of the said estate for him the said C. D.; And this defendant believes that the said G. H. hath received the said rents and profits of the said trust estate ever since the death of the said testator C. D. and doth still continue to receive ceive the same; the same; And this defendant positively denies that the said G. H. denies that he had had any power authority or direction from this defendant to receive any authority from defendant, all or any part of the rents and profits of the said trust-estate, or that he ever accounted to this defendant for the same; and this defendant is very desirous and ready to be discharged from his said who is desirous to be discharged. trust and to do any act for that purpose as this honorable court shall direct, this defendant being indemnified in so doing and having his costs; And this defendant further saith that as to so much of the said bill as seeks a discovery of this defendant's title to the lands in this defendant saith that he doth not know that he

ever claimed, and

in the said right or interest in the premises.

this defendant to his knowledge or belief ever had nor did he claim Denies that he or pretend to have nor doth he now claim or pretend to have any doth disclaim any right title or interest of in or to the said estate in complainant's bill set forth or any part thereof; and this defendant doth disclaim all right title and interest in and to the said estate in in the complainant's said bill mentioned and every part thereof; And this defendant denies &c. [see sect. IV. antea, p. 7.]

CHAPTER X.

DEMURRERS.

Whenever any ground of defence is apparent on the bill itself, either from matter contained in it, or from a defect in its frame, or in the case made by it, the proper mode of defence is by demurrer. The causes upon demurrer are merely upon matter in the bill, or upon the omission of matter which ought to be therein or attendant thereon, and not upon any foreign matter alleged by the defendant (1).

A demurrer is always in bar and goes to the merits of the case (2); whatever the bill represents as fact must be generally taken to be true by the demurrer; but not what the bill states as inference from matter of law (3).

A defendant cannot demur and plead or demur and answer to the same matter, for the answer will over-rule the demurrer; and a demurrer to relief is over-ruled by an answer to the facts, or parts of the bill, in respect of which relief is prayed (4). A demurrer if good to the relief prayed by a bill is good also to the discovery sought for the purpose of the relief (5); the defendant however may waive the benefit of the rule as against himself, and may demur to the relief and yet answer as to the discovery (6); but he cannot answer the discovery in part and demur to part, nor can he demur to a discovery only and not to the relief prayed, because the plaintiff may be entitled to relief without being entitled to it through the discovery, and may then obtain a decree, though he has not established his right by the defendant's answer (7). Where

(1) Ld. Red. Tr. Pl. p. 107, 8, 4th edit.; 2 Madd. Ch. Pr. 282. (2) 1 Atk. 543.

(8) 3 Mer. 503.

(4) 2 Madd. Ch. Pr. 282, 3; Jones v. Earl of Strafford, 3 P. Wms. 80. (5) 1 Madd. Ch. Pr. 216.

(6) Abraham v. Dodgson, 2 Atk. 156, 7; and note (p), p. 185, Ld. Red. Tr. Pl.

(7) Morgan v. Harris, 2 Bro. Ch. Ca. 124; Attorney-General v. Brown, 1 Swanst. 294; Waring v. Mackreth, Forr. 129, 136; 2 Madd. Ch. Pr. 286,

the demurrer extends to relief to which the plaintiff is entitled it will be bad, though there is some relief prayed to which the plaintiff is not entitled (8). A demurrer (unlike a plea ) cannot be good in part and bad in part (9); if however several defendants join in a demurrer, it may be good as to some of them and bad as to the others (10).

- 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, though the whole may be liable to demurrer; and in such ease, one demurrer may be over-ruled upon argument, and another allowed.

A demurrer must express the several causes of demurrer; and in case the demurrer does not go to the whole bill, it must clearly express the particular parts of the bill demurred to (11). It is not a proper way of demurring to say that the defendant answers to such and such facts, and demurs to all the rest of the bill; the defendant ought to demur specifying precisely what it is that he refuses to answer (12), and this must not be done by way of exception, as by demurring to all except certain parts of the bill (13). A demurrer ore tenus must be to that which the defendant has demurred to on the record. If the cause of the demurrer on the record is not good, he may at the bar assign other cause but he cannot demur ore tenus upon a ground which he has not made the subject of demurrer on the record (14).

A speaking demurrer is bad; as where by way of argument or inference the demurrer suggests a material fact which is not to be found in the bill (15).

(8) Todd v. Gee, 17 Ves. 279, 2d edit.

(9) Baker v. Pritchard, 2 Atk. 388; 2 Madd. Ch. Pr. 286.

(10) 8 Ves. 403.

(11) Ld. Red. Tr. Pl. 213, 4; 4th edit.; and see note (h), ibid.

(12) 2 Madd. Ch. Pr. 283.

(13) Robinson v. Thompson, 2 Ves. & B. 118; Wetherhead v. Blackburn, ib. 121; but it seems that a demurrer to the whole bill, with an exception of a very small part may be good in point of form; Hicks v. Raincock, 1 Cox's Ca. 41.

(14) Pitts v. Short, 17 Ves. 215, 6, 2d edit.; 2 Madd. Ch. Pr. 286. (15) See 2 Madd. Ch. Pr. 287; Edsell v. Buchanan, 2 Ves. jun. 83; Cawthorn v. Chalié, 2 Sim. & Stu. 129; Davies v. Williams, 1 Sim. 8.