DEMURRER ORE TENUS. On the argument of a demurrer the defendant is entitled to demur ore tenus.(1) Any cause of demurrer, though not shown on the demurrer as filed, may be alleged at the *bar, and will support the demurrer, but a [ *212 ] demurrer ore tenus must be to that which the defendant has demurred to on the record. If the cause of that 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 a demurrer on the record.(2) Thus to a bill by an heir against a person claiming under a devise, praying a discovery, and that witnesses might be examined de bene esse, and their testimony recorded, a general demurrer for want of equity was filed, the defendants were not permitted to demur ore tenus to the examination of witnesses.(3) To sustain a demurrer ore tenus there must be a cause of demurrer in Court, so that a defendant having pleaded, cannot on the hearing of the plea, demur at the bar. (4)[a] COSTS OF A DEMURRER. Before the General Orders of 1828, the costs of a demurrer, either allowed or overruled, were fixed at 57.(5) In particular cases full costs were given.(6) If the defendant demurred ore tenus, and both that cause of demurrer and the one on record were overruled, he only paid the ordinary costs.(7) In Durdant v. Redman,() it is said he ought to pay double costs; but Broderip v. Philips,(9) and Tourton v. Flower,(10) clearly prove that such was not the practice.(11) If the demurrer (1) Attorney General v. Brown, 1 Swanst. 288. Durdant v. Redman, 1 Vern. 78. (2) Pitts v. Short, 17 Ves. 215. (3) Pitts v. Short, 17 Ves. 213. (4) Durdant v. Redman, 1 Vern. 78. Hook v. Dorman,a 1 S. & S. 227. (5) Beam. Ord. 320. (6) Griffith v. Wood, 1 V. & B. 307, and Wood v. Dynely, 1 Madd. 32, and Beam. Ord. 456. Eng. Chan. Reps. i. 113. ore tenus was allowed, the defendant was not entitled to costs.(1)[b] [*213] *By the present practice, if the demurrer is allowed, the plaintiff pays to the defendant the taxed costs thereof, and if the demurrer is to the whole bill, then the further taxed costs of the suit also, unless the Court think fit to make other order to the contrary.(2) If the demurrer is overruled, the defendant pays to the plaintiff the taxed costs occasioned thereby, unless the Court make other order to the contrary.(3) On reversing an order for allowing a demurrer, the costs to be refunded.(4) The costs of a demurrer are recovered by issuing a subpoena, whereby the costs are made payable to bearer, and on an affidavit of the service thereof, of demand by bearer, and refusal to pay, and that at the time of swearing the affidavit, the deponent believed the costs were not paid, an attachment for costs issues without order. EFFECT OF A DEMURRER. If a partial demurrer is allowed, it generally imposes upon the plaintiff the necessity of amending the bill. If the demurrer is to the whole bill, and is allowed, it puts an end to the suit; but the Court, instead of allowing the demurrer, will sometimes give the plaintiff liberty to amend, upon payment of costs.(5)[a] If the demurrer is overruled, the defendant cannot put in another demurrer.(6)[6] Nor can he put in a plea.(7)[c] But he must answer, although upon a special case he may apply on notice of motion for the leave of the Court, to put in a (1) Tourton v. Flower, 3 P. W. 370. (2) 31 N. O. [b] A party availing himself of the right to demur ore tenus, must pay the costs of the demurrer on the record. Garlick v. Strong, 4 Paige, 440. [a] Where the defects in the bill are of a mere formal character, the amendment will always be allowed. M'Elwain v. Willis, 3 Paige, 505; 1 Hoff. Ch. Prac. 286. [b] Story's Eq. Pl. 362. But the Court will sometimes grant leave to amend a demurrer, as, to confine it where it is too extensive, and in cases of mistake. Glegg ▼. Leigh, 4 Madd. Rep. 207; 1 Hoff. Ch. Prac. 220. [c] Unless a special order of the Court be obtained for that purpose. Hall v. Nicholson, Halst. N. J. Dig. 172. demurrer less extended.(1) *In making this [ *214 ] application the defendant must point out the ground upon which he desires to demur or plead. After a plea has been overruled, the defendant cannot demur without special order.(2) But in the East India Company v. Campbell, (3) the Court refused to overrule a demurrer put in after a plea had been disallowed, but this decision appears founded upon the strong circumstances of the case. Though a demurrer to an original bill has been overruled, still the defendant may demur to an amended bill.(4) If a demurrer accompanied by an answer, is allowed, the plaintiff may obtain an order to amend. .If a demurrer, accompanied by an answer, is overruled, before the plaintiff can compel an answer from the defendant, or amend his own bill, he must except to the answer which was coupled with the demurrer, and upon the defendant's submitting to answer the exceptions, or upon their being allowed, the plaintiff is entitled as of course, to an order to amend, and that the defendant may answer the amendments and exceptions together. If a demurrer be put in to part of a plaintiff's bill, and an insufficient answer to the residue, the plaintiff cannot except until the demurrer is disposed of.(5) After a demurrer has been overruled, Sir Thomas Plumer, on an unopposed application, laid it down, that it is an order of course for a month's time to plead, answer, or demur.(6) Such is not the practice; as after a demurrer has been overruled, the defendant must apply specially for time,(7) *which application should be made to [ *215] the Court at the time the demurrer is overruled.(8) A demurrer prevents the plaintiff moving for an injunction until it is disposed of, and if it is overruled out of term, the plaintiff must wait till the next seal, to move for the common injunction.(9)[a] After a demurrer is put in but (1) Baker v. Mellish, 11 Ves. 68. (3) 1 Ves. 246. (2) Rowley v. Eccles, 1 S. & S. 511. Bosanquet v. Markham,b 4 Sim. 573. (4) Bancroft v. Wardour, 2 Bro. C. C. 66. (5) 2 Eq. Cas. 81. London Assurance Company v. East India Company, 3 P. W. 326. (6) Griffith v. Wood, 1 V. & B. 541. (7) Trim v. Baker, 1 S. & S. 469. (8) If a demurrer is not filed within eight days after appearance, it does not prevent the plaintiff obtaining the common injunction as of course. 10 N. N. O. (9) Claughton v. Hadwell, 6 Madd. 299. [a] In most, and perhaps, all of the states of the Union, the injunction may be obtained immediately upon filing the bill, and is usually allowed upon presenting the bill, and Eng. Chan. Reps. i. 263. Eng. Chan. Reps. vi. 250. Eng. Chan. Reps. ii. 240. not argued, the defendant cannot dismiss, as it is in his power to proceed with the cause by setting the same down for argument.(1) A defendant cannot file a demurrer to part of the bill, and an answer to the remainder upon a common dedimus, but must sue out one framed for the purpose.(2) (1) Anon. 2 Ves. 287. Done v. Allen, Dick. 55. (2) Tomlinson v. Swinnerton, 1 K. 9. before it is filed, but issued, on the filing. To such cases the principle in the text cannot, of course, apply. But where the application for an injunction is made, (an event of very unfrequent occurrence,) after the filing of the bill, it may perhaps be applicable. To prevent injurious delay, the Court, however, might hear the application, notwithstanding the demurrer, no right of the defendant being in any danger of prejudice thereby, inasmuch as on a motion for an injunction, the objection of want of equity in the bill, which it is the only object of a demurrer to raise, may be presented. CHAPTER XVII. PLEA. Object of plea, 216. What constitutes a good plea, 216. Plea to the jurisdiction, 218. To the person, 219. Pleas in bar, 220. How decree pleaded, 221. Plea of another suit depending, 222. Pleas in bar of matters in pais, 224. Pleas to bill of discovery only, 227. Negative plea, 228. Plea and answer, 228. When a defendant may plead, 230. Plea how prepared, 230. When plea put in on oath, 231. How sworn, and filed, and proceeded with, 232. If plea replied to, 233. What pleas require to be set down, 234. How set down, 235. If allowed or overruled, 237. Amendment of plea, 238. Effect of plea on other proceedings, 239. A PLEA is put in to a bill to avoid a discovery, or for the purpose of reducing the cause or some part of it to a single point, and from thence to create a bar to the suit.(1) The office of a plea generally is not to deny the equity, but to bring forward a fact, the result, perhaps, of a combination of circumstances, which if true, displaces the equity.(2)[a] It is not every good defence in equity that is likewise good as a plea; for where the defence consists of a variety of circumstances, there is no use of a plea; the examination must still be at large, and the effect of allowing such a plea would be that the Court would give their judgment on the circumstances of the case before they were made out by proof.(3)[b] Two inconsistent facts cannot be joined in one plea,(4) nor can various facts be pleaded in one plea, unless all are conducive to a single point of defence,(5)[c] as several deeds tending to establish the single point of title.(6) Lord (1) Mitf. Pl. 177. (2) Rowe v. Teed, 15 Ves. 377. (3) Chapman v. Turner, 1 Atk. 53. (6) Wood v. Strickland, 2 V. & B. 153,(n.) [a] Story's Eq. Pl. 493, 494; 2 Dan. Chan. Pr. 97. A plea will be overruled, if it do not set forth any new matter, although the objection raised by it would have been valid by way of demurrer. Cozine v. Graham, 2 Paige, 177. [b] Story's Eq. Pl. 496. [e] Story's Eq. Pl. 498; 2 Dan. Ch. Prac. 102-104; The State of Rhode Island v. The State of Massachusetts, 14 Peters, 210; Goodrich v. Pendleton, 3 Johns. Ch. Rep. 386; Watkins v. Stone, 2 Sim. 49; Cowne v. Douglas, McClel. & You. 321; Moreton v. Harrison, 1 Bland, 493; Ridgely v. Warfield, I Bland, 494. But a plea is not rendered double, by the mere insertion therein of several averments, which are necessary to exclude conclusions arising from allegations made in the bill to anticipate and defeat the bar which might be set up by the plea. Bogardus v. Trinity Church, 4 Paige, 178. |