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contains matters of evidence and conclusions of law was overruled.5

A demurrer is also used to set up the defense that the plaintiff's pleading does not set forth a cause of action, although this objection can be also raised at the trial. It has been doubted whether a misjoinder of defendants can be raised upon demurrer.?

It has been held that a demurrer to a negative plea which is overruled does not prevent the trial of the issue raised by such plea. The court need not consider a demurrer to a special defense which is in effect no more than a repetition of other denials in the answer. Conclusions of law are not admitted by demurrer.10

Where one count in a declaration is good, a general demurrer to the whole declaration cannot be sustained, except in part. The same rule applies where matter divisible in its nature is alleged by different paragraphs in the same count which state different causes of action, 11

Unless a demurrer is clearly interposed for delay, or there is a stipulation to the contrary, it is the general practice in all jurisdictions on the overruling of a demurrer to the plaintiff's initial pleading, to grant leave to the defendant to withdraw the demurrer and plead over.12 A State statute forbidding such a practice cannot control the discretion of the Federal courts in this respect.13 The refusal to allow a party to withdraw a demurrer which has been overruled has been held to be no cause for a reversal when no request to withdraw made below.14 Upon the overruling of a plea which raises only a question of law the judgment should be respondeat ouster.15


5 Ibid.

6 Denver & R. G. R. Co. v. Wagner, C. C. A., 167 Fed. 75, 79.

7 U. S. v. Comet Oil & Gas Co., 187 Fed. 674.

8 California Adjustment Co. v. Southern Pac. Co., 226 Fed. 349.

9 Berry v. Pullman Co., C. C. A., 249 Fed. 816.

10 Brooks v. Puliman Co., C. C. A., 213 Fed. 445.

11 Burgess v. Mazetta Mfg. Co., C. C. A., 198 Fed. 855.

12 Thullen v. Triumph Electric Co., 215 Fed. 939.

13 Boultbee v. International Paper Co., C. C. A., 229 Fed. 951.

14 U. S. v. Oregon-Washington R. & Nav. Co., C. C. A., 251 Fed. 211.

15 Philadelphia & Reading Coal & Iron Co. v. Kever, C. C. A., 260 Fed. 534, 537, 541.


When a demurrer is overruled with leave to amend, the seryice of an amended pleading waives any error in overruling the demurrer; 16 unless, the amended pleading is stricken from the files. 17

8 454g. Pleading equitable defenses. The Act of March 3, 1915, adds two sections to the Judicial Code, as follows:

"§ 274a. In case any of said courts shall find that a suit at law should have been brought in equity or a suit in equity should have been brought at law, the court shall order any amendments to the pleadings which may be necessary to conform them to the proper practice. Any party to the suit shall have the right at any stage of the cause, to amend his pleadings so as to obviate the objection that his suit was not brought on the right side of the court. The cause shall proceed and be determined upon such amended pleadings. All testimony taken before such amendment, if preserved, shall stand as testimony in the cause with like effect as if the pleadings had been originally in the amended form.1

"$ 274b. That in all actions at law equitable defenses may be interposed by answer, plea, or replication without the necessity of filing a bill on the equity side of the court. The defendant shall have the same rights in such case as if he had filed a bill embodying the defense of seeking the relief prayed for in such answer or plea. Equitable relief respecting the subject matter of the suit may thus be obtained by answer plea. In case affirmative relief is prayed in such answer or plea, the plaintiff shall file replication. Review of the judgment or decree entered in such case shall be regulated by rule of court. Whether such review be sought by writ of error or by appeal the appellate court shall have full power to render such judgment upon the records as law and justice shall require.” 2

A technical ruling in the Second Circuit holds that this does not authorize the plaintiff in an action at law to obtain equitable relief against a defense unless there is a prayer for affirmative



238 St. at L. 956, Comp. St., § 1251b.

16 Snowden v. Ft. Lyon Canal Co., C. C. A., 238 Fed. 495.

17 Ibid.

$ 454g. 138 St. at L. 956, Comp. St., 8 1251a.

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relief in the defendant's answer or plea. The better reasoning is in the dissenting opinion * and the case is not likely to be followed.


3 Keatley v. U. S. Trust Co., C. C. A., 249 Fed. 296, 298, 299, per Ward, J.: "The distinction between legal and equitable procedure has heen jealous'y preserved by the Supreme Cour:.

Bennett V. Butterworth, i0 How. 669, 675, 13 - L. ed. 859; Scott v. Armstrong, 146 U. S. 499, 13 Sup. Ct. 148, 36 L. ed. 1059. We think it quite clear that Congress did not intend by the above amendment to the Judicial Code to abolish all distinctions between actions at common law and suits in equity and to establish one form of civil action, for all cases. The provisions of the section apply, with one exception, presently to be considered, to defendants only:

««• The defendant shall have the same right * * * as if he had filed a bill embodying the defense or seeking the relief prayed for in such

or plea. Equitable relief

may thus, be obtained by answer or .plea.'

“Two references to the plaintiff create some uncertainty: 'That in all actions at law equitable defenses may be interposed by answer, plea or replication. In case affirmative relief is prayed in such answer or plea the plaintiff shall file a replication.'

"We should construe the word 'replication' in the same sense in each case, if possible. The general replication, which is a mere denial intended to put the cause at issue, has been generally abandoned in the Code states and by the Supreme Court in admiralty rule 51 (29 Sup. Ct. xliv), and the present equity rule

31 (198 Fed. xxvii, 115 C. C. A. xxvii). Full effect is given to the provision that an equitable defense may be interposed by replication, by construing 'replication as a special replication setting up a defense to an answer interposing an equitable defense and asking affirmative relief. Such an answer is what is known at as a 'counterclaim.' The answer in the present case sets up a purely legal defense. It is not even counterclaim. To such a defense the section as we construe it does not permit a replication interposing an equitable defense. The plaintiff should have applied by bill in equity for cancellation of the release.''

4 Ibid, per Learned Hand, J.: "It seems to me that we should not construe so narrowly section 274b. The phrase, 'equitable defenses may be interposed by * replication with out the necessity of filing a bill on the equity side of the court,' can only mean, I think, this: That where the defendant interposes a bar valid at law, the plaintiff may set up in his next pleading facts avoiding the bar in equity. The suggestion is that it might give the plaintiff the right to plead to the defendant's 'equitable defenses' set up in the answer, but that is independently provided for in the fourth sentence of the act. Besides the defendant's answer to a suit in equity cannot properly be said to be interposed by 'filing a bill on the equity side of the court? which is the language of the first sentence.

“So far as we may look to the purpose of the section I cannot think



* *

It has been held in the Eighth Circuit that, when an equitable defense is interposed or equitable relief is sought, the right thereto should be determined by the judge sitting as a chancellor before the issues at common law are submitted to the jury; 5 but the soundness of this ruling has not yet been established.

there is any doubt. Congress can hardly be thought to have any predilection for plaintiffs' suits in equity rather than defendants' and we must leave a capricious exception in practice, if we do not include a case like this. I agree that the language of the section is not what a Mitford or a Langdell would have used; but the purpose seems to me to be perfectly plain, and we ought, think, to try to effect it if we can.

"Section 274a (as added by March 3, 1915, Comp. St. 1916, $ 1251a), does not perhaps fit verbally, certainly not if I am wrong about section 274b, but it shows the purpose to avoid recourse to independent suits in equity with their attendant delays. Indeed, without section 274b I should have thought that a replication at law to avoid the release would fall under section 274a, as a 'suit at law' which should have been brought in equity' and that the plaintiff might have amended in the very action and proceeded. It can hardly be that section 274b takes away such a right."

6 Union Pac. R. Co. v. Syas, C. C. A., 8th Ct., 246 Fed. 561, 566, 567, per Carland, J.: “We are clearly of the opinoin that, when equitable relief is asked in an action at law under the statute above quoted, the case for equitable relief should be tried as a case in equity, and that the great weight of authority is in

favor of the practice of trying the case in equity first, for this practice serves to keep the equitable matter distinct, and to prevent what must otherwise frequently ensue confusion and embarrassment in the progress of the action.

In the case before us, and all others like it, where it appears that no damages can be recovered until the release is out of the way, orderly procedure and a due regard for the rights of the parties demands that the equitable issues should be first tried by the court sitting as a court of equity. It is true the chancellor may take the advice of a jury, but in such cases the issues to be passed upon by the jury should be carefully framed, and the jury should not be the one which also tries the action at law, as the desire of the jury to render a verdict in the law action in favor of the plaintiff or defendant may so cloud their judgment as to render their advice unsafe to follow. We are of the opinion that the failure of the trial court to try the equitable issues raised by the pleadings as a court of equity prior to the trial of the action for damages, as requested by counsel for the defendant, was prejudicial error, in view of the character of the evidence and the charge of the court."! To a similar effect are Fay v. Hill, 8th Ct., 249 Fed. 414, 418; Cavender v. Virginia Bridge & Iron Co., N. D. Georgia, 257 Fed. 877.

The statute obviates the former necessity of an injunction against an action at law to which an equitable defense exists.

In the Fourth Circuit it has been said that this statute does not authorize a transfer to the equity side of the court of an action improperly brought at common law;? but it has been held in the Second Circuit to the contrary. The proper method of raising such an objection is a motion to transfer the case to the equity side of the court. In a suit in equity when the defendant filed a plea to the jurisdiction because there was an adequate remedy at law and failed to move to transfer the case to the common law side of the court, it was held that the objection was waived. 10

Before the Act of March 3, 1915, an equitable defense could not be pleaded at common law, 11 although this was permitted by the State practice. 12



6. That

6 United Timber Corp. v. Bivens, 248 Fed. 554.

7 Waldo v. Wilson, C. C. A., 231 Fed. 654, 656, 658 per Pritchard, J.: “This section relates only to the power of the court in a case where a suit has been improperly brought, either on the equity or the law side of the court and provides that the same be amended so as to have the pleading conform to the proper practice

under the circumstances the court should have dis missed the suit, instituted on the law side of the court with leave to institute a suit on the equity side, and this could only have been done by filing a bill and issuing a subpæna as required by the equity rules.'

8 Illinois Surety Co. v. U. S., C. C. A., 212 Fed. 136.

9 Illinois Surety Co. v. U. S., C. C. A.,, 212 Fed. 136, 139, 140 per Ward, J.:

“The better way to have raised the question would have been by moving to have the cause transferred from the law to the equity calendar but it has been

sufficiently raised

The judgment is reversed, and the court below directed, to transfer the cause to the equity calendar for hearing. The mandate may be modified so as to provide that the judgment be reversed, without prejudice to a motion in the District Court to transfer the cause to the equity calendar.'' The objection was there raised when the cause was reached on the common law calendar, the causes of actions and the complaints were in equity and not at law and that the court had not jurisdiction to try the suit.')

10 Fay v. Hill, C. C. A., 8th Ct. 249 Fed. 415, 417, supra, 8 366a.

11 Bennett Butterworth, 11 How. 669; Montijo v. Owen, 11 Blatchf. 324; Parsons v. Denis, 7 Fed. 317; Doe v. Roe, 31 Fed. 97; Buller v. Slidell, 43 Fed. 116; Young v. Mahoning County, 51 Fed. 585, 590; Davis v. Davis, C. C. A., 72 Fed. 81; Schoolfield v. Rhodes, 82 Fed. 153,

12 Jbinl.

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