several distinct equitable causes of action, cannot be amended by eliminating all but one cause of action and by striking out the names of the plaintiffs not interested in the cause retained.79 If the bill is multifarious, by reason of misjoinder of defendants, plaintiff should be put to his election as to which defendant he will proceed against, and the bill should not be dismissed in toto.so The objection of multifariousness in that the bill sets forth two distinct and independent grounds of complaint is obviated by the elimination of one of those grounds by the voluntary action of defendant after the filing of the bill and before answer, which fact is alleged in the answer.81 The court may by its construction of an ambiguous bill relieve it from the objection of multifariousness, and plaintiff cannot object to such construction.82 The objection of multifariousness or misjoinder is a personal one, and only a defendant who is prejudiced thereby can be heard to complain of it.83 If, however, a joint claim, against several defendants, is improperly joined in the same bill with a separate claim against one of the defendants only, in which the other defendants have no interest and which is wholly unconnected with the claim against them, all or either of the defendants may demur to the whole bill for multiAla.-Edmonds V. Cogsdill, 182 Ala. 309, 62 S 691; Mobile, etc., R. Co. v. Talman, 15 Ala. 472; Wellborn v. Tiller, 10 Ala. 305. essential to the necessary and proper administra- ment 77 D. C.-Knight V. Herriman, 37 Ill-Bevans v. Murray, 251 Ill. 603, D. C.-Knight V. Herriman, 37 44 Ill. 325. App. 236. Fla.-Mattair v. Payne, 15 Fla. 682. Md.-Tartar v. Gibbs, 24 Md. 323; Chew v. Baltimore Bank, 14 Md. 299. N. J.-Droste v. Hall, (Ch.) 29 A 437; Hendrickson v. Wallace, 31 N. J. Eq. 604; Hays v. Doane, 11 N. J. Eq. 84. 68. U. S.-Herndon V. Chicago, etc., R. Co., 218 U. S. 135, 30 SCt 633, 54 L. ed. 970; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; U. S. v. Reading Co., 183 Fed. 427 [mod on other grounds 226 U. S. 324, 33 SCt 90, 57 L. ed. 243]; Chisholm v. Johnson, 106 Fed. 191; Converse v. Michigan Dairy Co., 45 Fed. 18. D. C.-Knight v. Herriman, 37 App. 236. Fla. Southern L. Ins., etc., Co. v. 571. 257. Md. Ashton V. Ashton, 35 Md. N. Y.-Abraham V. Plestoro, 3 Vt.-Day v. Cummings, 19 Vt. 496. 72. Herndon v. Chicago, etc., R. Ga.-George W. Muller Bank Fix- 14. Ill.-Heffron V. Gore, 40 Ill. A. Mich.-Childs v. Pellett, 102 Mich. 558, 61 NW 54; Burnham v. Dillon, 100 Mich. 352, 59 NW 176; Payne v. Avery, 21 Mich. 524; Wales v. Newbould. 9 Mich. 45. N. J.-Morristown v. Morris, (Ch.) 83 A 178; Brown v. Grandin, (Ch.) 13 A 266; Annin v. Annin, 24 N. J. Eq. 184; Green v. Richards, 23 N. J. Eq. 32 [aff 23 N. J. Eq. 536]; Emans v. Emans, 14 N. J. Eq. 114; Hays v. Doane, 11 N. J. Eq. 84; Swayze v. Swayze, 9 N. J. Eq. 273. Pa. Citizens' Natural Gas Co. v. Shenango Natural Gas Co., 7 Pa. Co. 277. Vt. Tullar v. Baxter, 59 Vt. 467, 8 A 493. 69. Chew v. Baltimore Bank, 14 Md. 299. 70. U. S.-Herndon V. Chicago, etc., R. Co., 218 U. S. 135, 30 SCt 633, 54 L. ed. 970; Oliver v. Piatt, 3 How. 333, 11 L. ed. 622; Ashburn v. Graves, 149 Fed. 968, 79 CCA 478 [rev on other grounds 215 U. S. 331, 30 SCt 108, 54 L. ed. 217]. N. Y.-Boyd v. Hoyt, 5 Paige 65. W. Va.-Cecil v. Karnes, 61 W. But see Wolkau V. Wolkau, 158 Ill. A. 341 (where a bill is multifarious the court may properly dismiss, without prejudice, such a portion of the bill as is not germane to the principal relief sought). [a] In Maryland (1) by rule of court, a bill may be dismissed as to matter improperly joined. Reckefus v. Lyon, 69 Md. 589, 16 A 233, 530; Canton v. McGraw, 67 Md. 583, 11 A 287. (2) But formerly it was necessary to dismiss in toto. Gibbs v. Clagett, 2 Gill & J. 14. 74. Price v. Union Land Co., 187 Fed. 886, 110 CCA 20. 75. State Trust Co. V. Kansas City, etc., R. Co., 128 Fed. 129 [rev on other grounds 137 Fed. 26, 71 CCA 1]; Ford v. Borders, (Ala.) 75 S 398: Junkins v. Lovelace, 72 Ala. 303; Belt v. Bowie, 65 Md. 350, 4 A 295. [a] The proper practice is to afford plaintiff opportunity to elect to proceed for one only of the matters of the suit. Ford v. Borders, (Ala.) 75 S 398. 76. See cases infra this note. [a] Defect cured.-(1) By striking out a part of the prayer for relief. Hodges v. Pingree, 10 Gray (Mass.) 14; Brady v. Weeks, 3 Barb. (N. Y.) 157; Murray v. Hay, 1 Barb. Ch. (N. Y.) 59, 43 AmD 773. (2) By submitting the case on a single aspect. Morse v. South, 80 Fed. 206. 77. Alabama Great Southern R. Co. v. Prouty, 149 Ala. 71, 43 S 352; Harland v. Person, 93 Ala. 273, 9 S 379; Alabama Warehouse Co. V. Jones, 62 Ala. 550; Whitney v. Union R. Co., 11 Gray (Mass.) 359, 71 AmD 715; Roberts v. Burwell, 117 Miss. 451, 78 S 357; Weyman v. Thompson, 50 N. J. Eq. 8, 25 A 205 [rev on other grounds 52 N. J. Eq. 263, 29 A 685, 30 A 249]. 78. Alabama Great Southern R. Co. v. Prouty, 149 Ala. 71, 43 SCt 352. [a] Illustration. Complainant filed a bill against two railroad companies, alleging three distinct grievances: First, a cause of action against one of the companies alone, for permiting a certain culvert to become filled up from its own neglect; second, a cause of action against the other railroad company, in digging a ditch along the north side of its embankment; and, third, a distinct cause of action against the latter, for building a bridge over a certain creek. Complainant thereafter dismissed the bill as against the first company and permitted judgment for costs to be entered against her thereon. It was held that, the companies not being joint tort-feasors, the dismissal relieved the bill of the defect of multifariousness. Alabama Great Southern R. Co. v. Prouty, 149 Ala. 71, 43 S 352. 79. Harrison County Ct. v. Hope Natural Gas Co., 80 W. Va. 486, 92 SE 726. 80. Beachey v. Heiple, 130 Md. 683, 101 A 553. fariousness.84 89 Under the federal equity rules, demurrers having VIII. PLEADINGS [ 453] A. Modes of Defense-1. In General. A defendant appearing has four regular modes of defense available, namely, disclaimer,87 demurrer,88 plea, and answer.90 While merely giving a pleading sufficient in substance a wrong name is not fatal,1 care must be taken that the pleading resorted to is in substance sufficient as the appropriate mode of defense, for often a single mode is alone appropriate to the assertion of particular defensive matter.92 Regard must also be had to statutes and court rules, which have greatly changed the general chancery rules affecting the choice of a mode of defense.98 been abolished,85 the defense of misjoinder must be essential that the entire bill be met by the same mode of defense.94 Defendant may demur to a part of the bill and answer the residue; 95 plead to part and answer the residue;96 demur to part, plead to part, and answer the residue;97 or demur to part, plead to part, disclaim as to part, and answer the residue.98 Where such course is adopted it is essential that the pleading designate with precision the portion of the bill to which it is intended to apply.99 The entire bill must, however, be met by some form of defense; defendant must answer all which he does not otherwise cover. On the other hand care should be taken not to cover any portion [§ 454] 2. Use of Different Defenses. It is not of the bill by two modes of defense, the rule being J. Eq. 322, 24 A 551; Bermes v. Heatherington v. Lewenberg, 61 Miss., not demur to a part and answer a Frick, 38 N. J. Eq. 88; Durling v. 372; Scudder v. Van Amburgh, 4 Edw. part. Norwich Union F. Ins. Co. v. Hammar, 20 N. J. Eq. 220. (N. Y.) 29; High v. Batte, 10 Yerg. Standard Drug Co., 117 Miss. 429, 78 See also infra § 460. (Tenn.) 335. S 353; Sledge v. Dickson, 81 Miss.. 501, 33 S 282. [b] Form of caption. Where there is a demurrer to part of the bill, and answer to the remainder, the caption should be: "The demurrer of A. B., the above-named defendant, to part of the bill, and the answer of the said defendant to the remainder of the bill of complaint of the above-named plaintiff." Tomlinson v. Swinnerton, 1 Keen 9, 15 EngCh 9, 48 Reprint 210; Daniell Ch. Pr. (5th Am. ed) p 788. 84. Gibbs v. Člagett, 2 Gill & J. (Md.) 14; Emans v. Emans, 13 N. J. Eq. 205; Swift v. Eckford, 6 Paige (N. Y.) 22; Boyd v. Suydam, Paige (N. Y.) 65; Carroll v. Roosevelt, 4 Edw. (N. Y.) 211; Ward v. Northumberland, Anstr. 469, 145 Reprint 938. 85. See infra § 504. 86. Equity Rules (1912), rule 29. And see Swift v. Inland Nav. Co., 234 Fed. 375; Tully v. Triangle Film Corp., 229 Fed. 297; Field v. Camp, 201 Fed. 682, 120 CCA 140. 87. Waterman v. Moody, (Vt.) 103 A 325. And see infra § 455. 88. New Brunswick Second Workingmen's Bldg., etc., Assoc. v. Wickers, 83 N. J. Eq. 397, 91 A 897; Waterman v. Moody, (Vt.) 103 A 325. And see infra §§ 456-504. [a] "A complainant cannot compel a demurrer upon the facts as stated in the bill, if they are imperfectly, or inadequately stated. The defendant must be at liberty to plead the facts upon which he relies for his detense, in such form and with such fullness of detail as to raise the real question which he desires to present." Davison v. Johnson, 16 N. J. Eq. 112, 115. 89. New Brunswick Second Workingmen's Bldg., etc., Assoc. v. Wickers, 83 N. J. Eq. 397, 91 A 897; Waterman v. Moody, (Vt.) 103 A 325. And see infra §§ 505-542. 90. New Brunswick Second Workingmen's Bldg., etc., Assoc. v. Wickers, 83 N. J. Eq. 397, 91 A 897; Waterman v. Moody, (Vt.) 103 A 325. And see infra §§ 543-584. 91. Goodwin v. McGehee, 15 Ala. 232; Watson V. Gaylord, 1 Root (Conn.) 137. Allowing a plea to stand as an answer see infra § 563. Answers taken as cross bills see infra § 615. 92. See cases infra this note. [a] Where a defect appears on the face of a bill (1) the objection must be raised by demurrer and not by plea. Hostetter Co. v. E. G. Lyons Co., 99 Fed. 734; McCloskey v. Barr. 38 Fed. 165; Noyes v. Willard, 18 F. Cas. No. 10,374, 1 Woods 187; Mains v. Homer Steel-Fence Co., 116 Mich. 526, 74 NW 735; Sperry v. Miller, 2 Barb. Ch. (N. Y.) 632; Evertson v. Ogden, 8 Paige (N. Y.) 275; Ainger v. White, 85 Vt. 446, 82 A 666. And see infra § 462. (2) But a good plea may be presented by averring, along with facts contained in the bill, additional facts making out a defense. Missouri Pac. R. Co. V. Texas, etc.. R. Co., 50 Fed. 151; Ainger V. White, 85 Vt. 446, 82 A 666. [b] The defense of innocent purchaser cannot be raised by demurrer but must be set up by plea or answer. [c] Defense consisting of variety of circumstances, making it necessary to go into evidence at large, must be made by answer and not by plea. Carroll v. Potter, Walk. (Mich.) 355; Loud v. Sergeant, 1 Edw. (N. Y.) 164. 93. See statutory provisions and court rules; and cases infra this note. [a] In Alabama, the statute abolishing the replication, permits plaintiff to ignore allegations in the answer not set out by special plea and not responsive to the bill. Stein v. McGrath, 128 Ala. 175, 30 S 792. [b] In Kentucky, although objection to answering improper matter may, under the local practice, be saved by defendant in his answer, it is the better practice to plead or demur. Atterberry v. Knox, 8 Dana 282. [c] In Pennsylvania, (1) under rule of court, all defenses are made by answer or demurrer. By virtue thereof everything which might theretofore have been raised by demurrer or plea may now be raised by answer (Brower v. Kantner, 190 Pa. 182, 43 À 7) (2) and a plea of the statute of limitations will be dismissed (Moore v. Bush, 5 Pa. Dist. 141, 17 Pa. Co. 252). [d] In Tennessee (1) the order of 94. Livingston v. Story, 9 Pet. (U. 95. U. S.-Livingston v. Story, 9 Miss.-Pieri V. Shieldsboro, 42 N. Y.-Brownell v. Curtis, 10 Paige Pa.-Stegmaier v. Keystone Coal Vt.-Wade v. Pulsifer, 54 Vt. 45. [a] Parts of bill not separable.- 96. U. S.-Sims v. Lyle, 22 F. Cas. No. 12,891, 4 Wash. C. Č. 301. Ill. Straley V. House of Good Shepherd, 281 Ill. 604, 118 NE 52.. Me.-Graves v. Blondell, 70 Me. 190. Mich. Clark v. Saginaw City Bank, Harr. 240. N. Y.-Leacraft V. Demprey, 4 Paige 124. Eng.-Blacket V. Langlands, 1 Anstr. 14, 145 Reprint 785; Buchanan v. Hodgson, 11 Beav. 368, 50 Reprint 859; Darnell v. Reyny, 1 Vern. Ch. 344, 23 Reprint 509. [a] Caption of no effect.-A caption of an instrument containing both a plea and an answer is no part of either, and a provision in the caption that it is an answer to one part and a plea to the remainder has no effect. Straley v. House of Good Shepherd, 281 Ill. 604, 118 NE 52. 97. U. S.-Haight, etc., Co. V. Weiss, 156 Fed. 328, 84 CCA 224 [certiorari den 207 U. S. 594, 28 SCt 260, 52 L. ed. 356]. Me.-York Mfg. Co. v. Cutts, 18 Me. 204. Md.-Ridgely v. Warfield, 1 Bland 494 note c. Mass.-Newton v. Thayer, 17 Pick. 129. Wis.-Bull v. Bell, 4 Wis. 54. 98. Waterman v. Moody, (Vt.) 103 A 325; 2 Daniell Ch. Pr. p 349. 99. Clark v. Saginaw City Bank, Harr. (Mich.) 240; Bruen v. Bruen, 4 Edw. (N. Y.) 640; Waterman V. Moody, (Vt.) 103 A 325; 2 Daniell Ch. Pr. p 350. See also infra § 484. 1. U. S.-McCloskey v. Barr, 38 Fed. 165; Ferguson v. O'Harra, 8 F Cas. No. 4,740, Pet. C. C. 493; Piatt v. Oliver, 19 F. Cas. No. 11,114, 1 McLean 295. Me.-Graves V. Blondell, 70 Me. Mass.-Newton v. Thayer, 17 Pick. 190. 129. N. Y.-Laight v. Morgan, 1 Johns. Cas. 429. Eng. Rowe V. Tonkin, 35 Beav, 115, 55 Reprint 838; Powell v. Arderne, 1 Vern. Ch. 416, 23 Reprint 557. that one may not at the same time demur and plead to the same matter,2 or demur to and answer the same matter, unless allowed to do so by statute or rule of court. A like rule forbids a plea and defensive answer to the same matter, but under some circumstances it is necessary to fortify a plea by an answer giving discovery as to the matter to which the plea relates. The consequence of violating these rules is in general that a plea is taken to overrule a demurrer which it overlaps, and an answer to overrule a demurrer or a plea." A plea is not overruled by the filing of a demurrer which is sustained.10 7 [455] B. Disclaimers.11 A disclaimer is a pleading under oath whereby a defendant denies that he has or claims any right to the thing in demand and renounces all claim thereto.1 12 It is sometimes treated as a form of answer,13 but is really a distinct kind of defense,14 as it has for its object the immediate termination of the suit,15 by showing that a further answer is unnecessary.16 The disclaimer must be full and explicit, and must renounce not only the interest charged in the bill but all right in any capacity and to any extent.18 A disclaimer is available only to a defendant who is 2. U. S.-Hostetter Co. v. Lyons Co., 99 Fed. 734; Sims v. Lyle, 22 F. Cas. No. 12,891, 4 Wash. C. C. 301. Conn.-Hoadley v. Smith, 36 Conn. Ill.-Pennsylvania Co. v. Bond, 99 Ill. A. 535 [aff 202 Ill. 95, 66 NE 9411 17 charged merely with having an interest in the subject matter and not with a liability with reference thereto 19 where his renunciation of interest should lead to a dismissal of the bill against him.20 Where the bill charges more than a mere interest or claim on the part of defendant, he cannot evade answering by a disclaimer.21 When a bill is directed against a party who once had an interest in the subject matter, and the bill does not show this fact affirmatively and does not show that defendant has parted with such interest, a disclaimer and not a demurrer is the appropriate pleading.22 When, however, a bill shows defendant to be a proper or necessary party he cannot evade answering by disclaiming.23 A disclaimer can seldom be put in alone,24 but must usually be accompanied by an answer denying such facts as may be necessary in order to make it effectual.25 Each must, however, refer to separate parts of the bill, and if an answer and disclaimer are repugnant to each other, defendant will be held more strongly on his disclaimer.20 Defendant may have had an interest with which he has parted and an answer is therefore required to show if this is a fact and, if so, to enable plaintiff to make the proper parties.27 A disclaimer will not murrer); Bassett v. Cunningham, 7 5. Ocala Fdy., etc., Works v. Les- 10. Love v. Robinson, 213 Pa. 480, 12. Crane v. Deming, 7 Conn. 387; Miss.-Gray v. Regan, 23 Miss. 304. N. J.-Redrow v. Sparks, 75 N. J. Eq. 396, 72 A 442; Veghte v. Raritan General denial as disclaimer. Water Power Co., 19 N. J. Eq. 142-Where a bill alleges that defend[rev on other grounds 21 N. J. Eq. ant has some interest in the property 463]. in controversy, a general denial will operate as a disclaimer of any interest therein. Kehm v. Mott, 187 Ill. 519, 58 NE 467. Oh. Kisor V. Stancifer, Wright 323: Pa.-Stegmaier v. Keystone Coal Co., 232 Pa. 140, 81 A 187; Clark v. Edwards, 58 Pa. Super. 456. R. I.Roberts v. White, 32 R. 522, 80 A 123. I. Vt.-Waterman v. Moody, 103 A 325. [a] Demurrer in answer.-Defendant cannot incorporate in an answer to the whole bill a demurrer to all or any part of it. Bird v. Magowan, (N. J. Ch.) 43 A 278. [b] Interrogatories. -Defendant cannot answer a bill and demur to the interrogatories. Kisor v. Stancifer, Wright (Oh.) 323. [c] Discretion of court.-(1) The court has discretion to permit a demurrer and plea at the same time to the entire bill. Alexander v. Alexander, 13 App. (D. C.) 334, 45 LRA 806 (2) Even if the court has power to permit a demurrer to the whole bill and at the same time pleas thereto, such power will not be exercised unless for good and sufficient reasons and to prevent injustice. U. S. v. American Bell Tel. Co., 30 Fed. 523. Demurrer overruled by answer see infra § 493. [b] Time for entering.-As a disclaimer is a mode of defense, it should be entered at the time designated for appearance as other pleadings in the cause. Cooper Eq. Pl. p 309. 13. Anonymous, 3 L. J. Ch. 94; Mitford Eq. Pl. p 97. [a] In form (1) a disclaimer is like an answer, having regularly the same commencement and conclusion. Barton Suit Eq. p 102. It should not be (2) included in (Proctor v. Plumer, 112 Mich. 393, 70 NW 1028), (3) or made by (Worthington v. Lee, 2 Bland (Md.) 678) a demurrer. 20. Kennedy v. Kennedy, 66 111. 190; Meade v. Finley, 47 Ill. 406; Isham v. Miller, 44 N. J. Eq. 61, 14 A 20; Ellsworth v. Curtis, 10 Paige (N. Y.) 105. [a] Rule applied.-(1) Where a purchaser sought to set aside a sale on the ground that defendant claimed a homestead right in the premises and defendant disclaimed, the bill was properly dismissed. Meade v. Finley, 47 II. 406. (2) A cross bill should be dismissed, as against a defendant disclaiming, when the only reason for making him a defendant was the alleged interest which he disclaimed. Kennedy v. Kennedy, 66 11. 190. 21. Ellsworth v. Curtis, 10 Paige (N. Y.) 105; Dobree v. Nicholson, 22 L. T. Rep. N. S. 774; Glassington v. Thwaites, 2 Russ. 458, 3 EngCh 458, 38 Reprint 408; Graham v. Coape. 9 Sim. 93, 16 EngCh 93, 59 Reprint 293; Whiting v. Rush, 2 Y. & C. Exch. 546, 160 Reprint 513; Jones v. Wiggins, 2 Y. & J. 385, 148 Reprint 968. [a] Married women are not excepted from this rule, even though a present judgment cannot be rendered against them. Pemberton v. McGill, 1 Jur. N. S. 1045; Whiting v. Rush, 2 Y. & C. Exch. 546, 160 Reprint 513. 22. Crane v. Deming, 7 Conn. 387. Bromberg v. Heyer, 69 Ala. 22. Spofford v. Manning, 2 Edw. (N. Y.) 358; 2 Daniell Ch. Pr. p 233; Mitford Eq. Pl. p 253. ⚫ 25. D. C.-Edelin v. Lyon, 1 App. 87. 23. 24. Md. 678. Worthington v. Lee, 2 Bland 14. [a] In the technical sense, a disclaimer is not an answer. Mounsey v. Burnham, 1 Hare 15, 23 EngCh 15, 66 Reprint 932; Glassington v. Thwaites. 2 Russ. 458, 3 EngCh 458, 38 Reprint 408; Story Eq. Pl. § 838. 15. 16. Mitford Eq. Pl. p 98. 17. 19. 4. See statutory provisions and court rules; and Smith v. Kelley, 56 Kane County v. Herrington, 50 Me. 64; Hartshorn v. Eames, 31 Me. Ill. 232; Worthington v. Lee, 2 Bland 93; Waterman v. Moody, (Vt.) 103 A (Md.) 678; Graham v. Coape, 3 Myl. 325 (no demurrer is bad because the & C. 638. 14 EngCh 638. 40 Reprint answer extends to some part of the 1073, 9 Sim. 93, 16 EngCh 93, 59 Rematter that is covered by the de-print 293; 2 Daniell Ch. Pr. p 233. Y.-Ellsworth Eng. Graham v. Coape, 3 Myl. & C. 638, 14 EngCh 638. 40 Reprint 1073, 9 Sim. 93, 16 EngCh 93, 59 Reprint 293. [a] Statement not responsive.-A disclaimer of all interest in the subject matter of controversy by a defendant, renders any statement in the answer not responsive to the bill irSaltmarsh relevant and impertinent. V. Hockett, etc., Iron Co., 1 Lea (Tenn.) 215. 26. Cooper Eq. Pl. pp 309. 310; 1 Daniell Ch. Pr. (5th ed) pp 709, 788. 27. Spofford v. Manning, 2 Edw. (N. Y.) 358; Mitford Eq. Pl. p 233. ebviate the necessity of an answer unless it is evident after disclaimer filed that it would not be proper to retain defendant as a party to the suit.28 Disclaimers must be accompanied by an answer when fraudulent conduct is charged.29, Proceedings after disclaimer. Where defendant disclaims, plaintiff may bring the suit to a hearing, and if there was probable cause for making such defendant a party, plaintiff may have a decree against him and all claiming under him.30 In cases where a disclaimer can properly be interposed, as where no liability rests upon the party disclaiming, and there can be no use in retaining him as a party for the suit, the bill should be dismissed as to him.31 A bill will not, however, be dismissed immediately in all cases where a defendant may be permitted to disclaim, but the court may retain a disclaiming party if the circumstances of the case or the ends of justice require it. A disclaimer may be sufficient to take away plaintiff's right to a further answer, and yet not entitle the party disclaiming to an immediate discharge from the suit. It is not proper to reply to a disclaimer, because defendant in that event may go into the evidence, but the bill should be dismissed; or if plaintiff wishes to charge defendant with the costs, the cause should be brought to hearing upon the bill and disclaimer; 35 but where an answer as well as a disclaimer is filed, a reply to the answer will not be improper.36 33 34 Exceptions cannot be filed to a simple disclaimer, the only remedy of plaintiff who is entitled to an answer, being to move to take the disclaimer off the file. But if the disclaimer is accompanied by an insufficient answer the proper course is to except to the answer for insufficiency.38 Effect of disclaimer. A disclaimer operates as an estoppel, and as between the parties and their privies is an absolute bar to the further assertion of the right renounced,39 but it does not extend any further than to the matter actually embraced in the disclaimer.40 Where a person, not made a party to a bill, on the hearing, enters an appearance and disclaims all interest in the subject matter, he will be bound by such disclaimer, and the error, if any, in not making him a formal party is thereby cured.41 A disclaimer does not of itself establish any right or title in plaintiff,42 nor does it operate to enlarge his estate. Where defendant disclaims he thereby precludes himself from asserting in that suit, against his codefendant, the right which he has so disclaimed.44 But a disclaimer by one defendant to any interest in the subject matter of the controversy does not vest the interest so disclaimed in his codefendant.45 [§ 456] C. Demurrers 46-1. Nature and Function-a. In General. 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 plaintiff to proceed upon, or to oblige defendant to answer; or that for some reason apparent on the face of the bill, or on account of the omission of some matter which ought to be contained therein, or for want of some circumstances which ought to be attendant thereon, defendant ought not to be compelled to answer to the whole bill or to some certain part thereof. It is an answer in law to the bill, although not in a technical sense an answer according to the common language of practice." It raises only questions of law, as to the sufficiency of the bill, which arise on the face thereof.49 Its function is much the same as at law,50 being to test the sufficiency of the bill.51 Its purpose is to raise the question whether upon the facts as stated plain 28. Isham v. Miller, 44 N. J. Eq., 23 S 203; Fowler v. Brown, 51 Nebr. 61, 14 A 20; Glassington v. Thwaites, 414, 71 NW 54. 2 Russ. 458, 3 EngCh 458, 38 Reprint 408. 29. Bromberg v. Heyer, 69 Ala. 22; Edelin v. Lyon, 1 App. (D. C.) 87; Bulkeley v. Dunbar, 1 Anstr. 37, 145 Reprint 793. 30. Spofford v. Manning, 2 Edw. (N. Y.) 358. 31. Kennedy v. Kennedy, 66 I11. 190; Meade v. Finley, 47 Ill. 406; Isham v. Miller, 44 N. J. Eq. 61, 14 A 20; Spofford v. Manning, 2 Edw. (N. Y.) 358; Davis v. Whitmore, 28 Beav. 617, 54 Reprint 503. 32. Spofford v. Manning, 2 Edw. (N. Y.) 358. 33. Dupuy v. Leavenworth, 17 Cal. 262; Sawyer v. Campbell, 130 Ill. 186, 22 NE 458; Perkins v. Stafford, 10 Sim. 562. 16 EngCh 562, 59 Reprint 733; Teed v. Carruthers, 2 Y. & Coll. 31, 21 EngCh 31, 63 Reprint 14. 34. Spofford v. Manning, 2 Edw. (N. Y.) 358. 35. Spofford v. Manning, 2 Edw. (N. Y.) 358; Williams v. Longfellow, 3 Atk. 582. 26 Reprint 1135; Ford v. Chesterfield, 16 Beav. 516, 51 Reprint 878; Glover v. Rogers, 11 Jur. 1000. 36. Williams v. Longfellow, 3 Atk. 582, 26 Reprint 1135; Deacon v. Deacon, 7 Sim. 378, 8 EngCh 378, 58 Reprint 882. 37. Ellsworth v. Curtis, 10 Paige (N. Y.) 105; Graham v. Coape, 3 Myl. & C. 638, 14 EngCh 638, 40 Reprint 1073, 9 Sim. 93, 16 EngCh 93, 59 Reprint 293. 38. Ellsworth v. Curtis, 10 Paige (N. Y.) 105; Glassington v. Thwaites, 2 Russ. 458, 3 EngCh 458, 38 Reprint 408. 39. Kehm v. Mott, 187 Ill. 519. 58 NE 467 [aff 86 Ill. A. 549]; New American Oil, etc., Co. v. Troyer, 166 Ind. 402, 76 NE 253, 77 NE 739; Beltran v. Leche, 50 La. Ann. 385, [a] Disclaimer untrue.-If it should appear that the disclaimer of a defendant is untrue, although he may still be a party to the suit on the record, such disclaimer is binding upon him for all purposes, and is a bar to the further assertion of the rights disclaimed. Wood v. Taylor, 3 Wkly. Rep. 321. [b] Interposed by mistake.-When a disclaimer is interposed by mistake, or in ignorance of rights. the courts generally, upon a strong showing by affidavit, permit the party to amend so as to avoid the effect of such disclaimer. Sidden V. Lediard, 1 Russ. & M. 110, 5 EngCh 110, 39 Reprint 42; Seton v. Slade, 7 Ves. Jr. 265, 32 Reprint 108. 40. In re Burrell, L. R. 7 Eq. 399. [a] A disclaimer in a foreclosure suit can be pleaded as an answer to any further suit for redemption, but not in any other way. In re Burrell, L. R. 7 Eq. 399; Wood v. Taylor, 3 Wkly. Rep. 321. 41. Marsh v. Green, 79 Ill. 385. 42. Salkeld v. Johnston, 1 Hare 196, 23 EngCh 196, 66 Reprint 1004. 43. In re Burrell, L. R. 7 Eq. 399. 44. Jolly v. Arbuthnot, 26 Beav. 283, 53 Reprint 907. 45. Kane County v. Herrington, 50 Ill. 232. 46. Demurrers generally see Pleading [31 Cyc 269]. 47. Bouvier L. D.; Mitford Eq. Pl. p 107. [a] Kinds of demurrers.-(1) A demurrer may be either to the relief prayed, or, if discovery is sought, to the discovery only, or to both. 1 Daniell Ch. Pr. (6th Am. ed) p 547. (2) Demurrers to relief or to relief and discovery may be either: To the jurisdiction; to the person of plaintiff; or to the matter of the bill, 48 either as to its form or substance. 1 Daniell Ch. Pr. (6th Am. ed) p 549; 1 Street Fed. Eq. Pr. § 929. 48. New Jersey v. New York, 6 Pet. (U. S.) 323. 8 L. ed. 414. 49. New York Eelting, etc.. Co. v. New Jersey Car Spring, etc., Co., 137 U. S. 445, 11 SCt 193, 34 L. ed. 741; Seeba v. Wolf Bros. Shoe Co., 93 Fla. 227, 74 S 204; Crompton v. Beedle, 83 Vt. 287, 75 A 331, 30 LRANS 748, AnnCas1912A 399. [a] It must be founded on some dry point of law which goes to the absolute denial of the relief sought. Verplank v. Caines, 1 Johns. Ch. (N. Y.) 57; Brien v. Buttorff, 2 Tenn. Ch. 523. [b] Questions of fact. (1) Whether or not the design in a patent is new, is a question of fact, not to be determined by demurrer, but one which should be raised by answer and settled by proper proofs. New York Belting, etc., Co. v. New Jersey Car Spring, etc., Co., 137 U. S. 445, 11 SCt 193, 34 L. ed. 741. (2) Whether in a given case a party did rely upon the misrepresentations of another instead of upon his Own judgment and knowledge or means of knowledge is a question of fact to be determined upon a hearing. Crompton v. Beedle. 83 Vt. 287, 75 A 331, 30 LRANS 748, AnnCas1912A 399. [c] The question of public policy involved in a bequest for the promotion of christian science is not subject to determination as one of law on demurrer to a bill. FosterEddy v. Baker, 192 Fed. 624. 50. Martin v. McBryde, 38 N. C. 531; Boardman v. Keystone Standard Watch Case Co., 8 LancLRev (Pa.) 25. 51. Ala.-Peerson V. Gray, 184 Ala. 312, 63 S 467. Ill.-Dunne v. Rock Island County, 273 11. 53, 112 NE 342; Goodrich v. 53 tiff is entitled to relief in equity,52 or defendant is required to answer. A demurrer may challenge not only the sufficiency in substance of the facts alleged, but their sufficiency as stated, and may therefore reach defects in the form of the bill.54 It will lie not only to an entire bill but to some distinct portion of one.55 60 [457] b. Use Confined to Bills.56 Under distinctive equity procedure the use of demurrers is confined to defending against bills. There can be no demurrer to a plea,57 replication,58 or answer. 59 If the answer is defective or insufficient, it must be excepted to, or the cause set down for hearing upon bill and answer.61 The sufficiency of a plea or replication 63 is tested by having it set down for hearing, and argued. By statute in some jurisdicThompson, 88 III. 206; Judson v. Stephens, 75 III. 255. N. J.-McCarter v. United New Jersey R., etc., Co., 75 N. J. Eq. 158, 71 A 291 [rev_on other grounds 76 N. J. Eq. 323, 74 A 315]. Pa.-Huston v. Sellers, 12 Phila. 520. Vt.-Watkins v. Childs, 80 Vt. 99, 66 A 805, 11 AnnCas 1123. See also cases infra this note. [a] Not tested by prayer.-(1) Plaintiff's rights on demurrer to the bill should be tested by the allegations of the bill, taken as true, rather than by his prayer for relief. Laubengayer v. Rohde, 167 Mich. 605, 133 NW 535. (2) A demurrer which does not go to the whole bill, or to any specific severable part thereof, but only to a part of the relief asked, is unsustainable. Holt v. Hamlin, 120 Tenn. 496, 111 SW 241. (3) A demurrer will not be sustained because a prayer is too ample or exacting in the relief sought, but the proper relief can be accorded and limited by the decree. American Freehold Land-Mortg. Co. v. Walker, 31 Fed. 103. 52. Ellis v. Vandergrift, 173 Ala. 142, 55 S 781; Kankakee, etc., R. Co. v. Horan, 131 Ill. 288, 23 NE 621; Johnson V. Roberts, 102 Ill. 655; Stroup v. Chalcraft, 52 Ill. A. 608; Pew v. Minor, 216 Pa. 343, 65 A 787. [a] Acceleration of decision.The purpose of a demurrer in equity is to accelerate the decision of complainant's rights upon the confessed averment of his pleading. Ellis v. Vandergrift, 173 Ala. 142, 55 S 781. 53. Kankakee, etc., R. Co., V. Horan, 131 Ill. 288, 23 NE 621; Martin v. McBryde, 38 N. C. 531; Andrews v. Landis, 24 Pa. Dist. 876; Boardman v. Keystone Standard Watch Case Co., 8 LancLRev (Pa.) 25. 54. 2 Daniell Ch. Pr. p 45. See infra § 477. 55. Miller v. Sterringer, 66 W. Va. 169, 66 SE 228, 25 LRANS 596; Mitford Eq. Pl. p 99. See also supra § 454; infra § 484. [a] The general purpose of the whole bill will be considered, upon demurrer directed to particular allegations, so as to test their proper relation to some general equity to which plaintiff shows himself entitled. Miller v. Sterringer, 66 W. Va. 169, 66 SE 228, 25 LRANS 596. 56. Demurrers: To: Amended bills see infra § 642. Cross bills see infra § 616. Supplemental bills see infra § 668. 57. U. S.-Pennsylvania Co. V. Bay, 138 Fed. 203; Zimmerman v. So Relle, 80 Fed. 417, 25 CCA 518. But see MacBeagh v. Denver City Waterworks Co., 85 Fed. 74, 29 CCA 33 (when a demurrer to a plea in chancery is overruled, complainant should be given leave to reply). Il-Perry v. U. S. School Furniture Co., 232 Ill. 101, 83 NE 444; Dixon v. Dixon, 61 Ill. 324; Lester v. Stevens, 29 Ill. 155; Spangler V. 62 71 Effect of failure to demur. If the bill is without equity, or the case made thereby does not authorize the granting of relief to plaintiff, such objection is not waived by a failure to demur,70 although demurring is the usual and proper method of raising this objection. But all formal and technical objections to a bill are waived by failure to demar and by going to a hearing on the merits.72 A failure to demur waives objection for repugnancy in allega§ 51 of this act which provides that any pleading may be objected to on the ground that it discloses no cause of action or defense, an answer subject to demurrer. Weidmann Silk Dyeing Co. v. East Jersey Water Co., supra. V. Simonson, 4 Spangler, 19 Ill. A. 28. Ky. Thomas v. Brashear, 4 T. B. Mon. 65. Miss.-Winters v. Claitor, 54 Miss. 341; Beck v. Beck, 36 Miss. 72. N. H.-Kidd V. New Hampshire Tract. Co., 72 N. H. 273, 56 A 465; Bassett v. Salisbury Mfg. Co., 43 N. H. 249. N. J.-Travers v. Ross, 14 N. J. Eq. 254. Tenn.-Hannum V. McInturf, 6 Baxt. 225; Graham γ. Nelson, 5 Humphr. 605. 58. Pearson V. Treadwell, 179 Mass. 462, 61 NE 44; Beck v. Beck, 36 Miss. 72. V. 59. U. S.-Banks Manchester, 128 U. S. 244, 9 SCt 36, 32 L. ed. 425; Pennsylvania Co. v. Bay, 138 Fed. 203; harrett v. Twin City Power Co., 111 Fed. 45; Stokes v. Farnsworth, 99 Fed. 836; Jack v. Walker, 79 Fed. 138 [rev on other grounds sub nom. Walker v. Jack, 88 Fed. 576, 31 CCA 462]; Crouch v. Kerr, 38 Fed. 549; Adams v. Bridgewater Iron Co., 6 Fed. 179; Chicago, etc., R. Co. v. Macomb, 2 Fed. 18. But see Manhattan Trust Co. v. Chicago Electric Tract. Co., 188 Fed. 1006 (whether an affirmative defense of fraud is sufficiently pleaded, or whether, if sufficiently stated, is a defense, can only be considered on demurrer, and cannot be raised by exception).' Ala.-Woodlawn V. Durham, 162 Ala. 565, 50 S 356. 666. - Oh.-Peebles v. Isaminger, 18 Oh. St. 490. Pa.-Com. v. Pittston Ferry Bridge Co.. 8 Kulp 29; Huston v. Sellers, 12 Phila. 520. W. Va.-Bennett v. Pierce, 45 W. Va. 654, 31 SE 972; Copeland v. McCue, 5 W. Va. 264. [a] Waiver of irregularity.-(1) Though a demurrer to the answer is filed, if the cause is argued upon its merits, the irregularity is waived. Barry v. Abbot, 100 Mass. 396. (2) If a demurrer is filed to an answer, and no objection is made thereto, the court may treat it as an application to set down the cause upon bill and answer. Grether v. Wright, 75 Fed. 742, 23 CCA 498. [b] In New Jersey (1) prior to the passage of "The Chancery Act 1915," a demurrer to an answer did not lie in any form Weidmann Silk Dyeing Co. v. East Jersey Water Co., 88 N. J. Eq. 397. 102 A 858, 1056; Commonwealth Title. etc., Co. v. New Jersey Lime Co., 86 N. J. Eq. 450, 100 A 52; Condict v. Erie R. Co., 77 N. J. Eq. 282, 76 A 452; Travers V. Ross, 14 N. J. Eq. 254. (2) But under 60. See infra § 571. 61. Barrett v. Twin City Power Co., 111 Fed. 45; Jack v. Walker, 79 Fed. 138 [rev on other grounds 88 Fed. 576, 31 CCA 462]; Stone V. Moore, 26 ill. 165; Barry v. Abbot, 100 Mass. 396. Hearing on bill and answer see infra § 694. 62. Ill.-Lester v. Stevens, 29 Ill. 155. Ky. Thomas v. Brashear, 4 T. B. Mon. 65. Md. Rouskulp v. Kershner, 49 Md. 516. Miss.-Winters v. Claitor, 54 Miss. 341; Beck v. Beck, 36 Miss. 72. 19. Mo.-Roundtree v. Gordon, 8 Mo. N. H.-Kidd v. New Hampshire Tract. Co., 72 N. H. 273, 56 A 465, 66 LRA 574. 63. Beck v. Beck, 36 Miss. 72. 64. See statutory provisions; and Latimer v. Irish-American Bank, 119 Ga. 887, 47 SE 322. 65. See statutory provisions; and: U. S.-McKnight v. Dudley, 103 Fed. 918 (Ohio practice). Ga.-Latimer V. Irish-American Bank, 119 Ga. 887, 47 SE 322. Iowa.-Carr v. Bosworth, 68 Iowa 669, 27 NW 913. N. Y.-Holland v. Grote, 193 N. Y. 262, 86 NE 30. Oh.-Peebles v. Isaminger, 18 Oh. St. 490. 66. Seė generally Pleading [31 Cyc 273]. 67. See infra § 477. 68. Glover V. Hembree, 82 Ala. 324, 8 S 251; Seals v. Robinson, 75 Ala. 363; Oliphant V. Hartley. 32 Ark. 465; Smith v. Blake, 96 Mich. 542, 55 NW 978. Ill. 336. Kan.-Smith v. Smith, 75 Kan. 847, 89 P 896. Mass.-Cobb v. Rice, 130 Mass. 231; Nelson v. Ferdinand, 111 Mass. 300; Pinch v. Anthony, 10 Allen 470. Mich.-Negaunee Iron Co. v. Iron Cliffs Co., 134 Mich. 264, 96 NW 468 [app dism 197 U. S. 463, 25 SCt 474. 49 L. ed. 836]. N. J. McMaster V. Drew, (Ch.) 68 A 771 [aff 77 N. J. Eq. 270, 79 A 686]. |