1. How defendant's ap entered. DEFENCE TO A SUIT. Special Contents. I. Defendant's appearance entered. II. Demurrer without oath and signed by solicitor. III. If defendant demurs for want of parties. IV. After filing the demurrer when it ought to be set down for argument. V. How to set it down for argument. VI. Notice of bringing the cause to a hearing on demurrer. VII. If the adverse solicitor resides in the county where notice is to be given. VIII. Complainant neglecting to bring the cause to a hearing. IX. Demurrer to be signed by counsel. X. If overruled. XI. If general to the whole bill. XII. Admits all the facts. XIII. Will lie for want of jurisdiction. XIV. And in like manner to the disability of the person. XV And on an account of a deficiency of the frame of the bill. XVI. It must be founded on a point of law. XVII. A bill praying for the appointment of a guardian not de murrable. XVIII. Will lie when parties have adequate relief in law. XIX. Notice to set down the cause for argument on demurrer. Of Demurring, Pleading, and Answering. Ir the defendant appears, he does it, as has been said, pearance is by entering the same with the clerk in court, and after this, gets from the clerk an office copy of the bill, to which he must demur, plead, or answer, in six weeks, exclusive from the day his appearance is required to be entered by the subpoena; if he does not, he will be in contempt, and other process of contempt will issue against him; or, the complainant may proceed to take the bill pro confesso against him. A Demurrer. Is an appeal to the judgment of the court, whether 2 Demur The rer signed by de- the solicitor & counsel, filed the defendant is obliged to answer the bill. murrer is put in without oath, and being signed by the with the olerk in court, and solicitor and counsel, is to be filed with the clerk in notice given. court, and notice thereof given by the defendant's solicitor to the complainant's solicitor. for want of par may amend. omplain ant If the defendant demurs to the bill for the want of 3. If the departies, or other defect, which does not go to the equity ties, &c. the of the whole bill, the complainant may amend at any time before the demurrer is set down for argument, or within fourteen days after receiving notice of the demurrer, of course upon payment of costs to be taxed, and in all cases where a defendant shall demur, which from the causes of demurrer at the time of amendment shall come within the former part of this rule, the complainant's right to amend, and the terms on which it may be done shall be in the discretion of the court, and may be ordered at any time before the decree allowing the demurrer.(a) 4. After filing the de murrer when it ought to be argument. When a plea or demurrer is filed, the party pleading or demurring within three weeks after filing the plea or demurrer shall set the same down for argument at set down for the next term, or in default thereof, an order may be entered that the same be overruled, and the complainant shall then be at liberty to proceed as if such demurrer had not been filed.(b) 5. How the The cause is set down, by furnishing the register, or cause assistant register, with a note, containing the title of down. the cause, and the time issue was joined, which he enters on the calendar or list of causes for the court. If is set 6. Notice of bringing cause demurrer. this note of issue be not furnished, the cause will be considered as the junior cause. (c) The cause being set down for argument on demurto a hearing on l'er, notice of bringing it to a hearing must be served by the solicitor of the party who sets down the cause 7. Notice of on the solicitor of the adverse party. If the adverse cause to a hear-solicitor resides in the county where the court is to be days, if the ad- held at the time of the argument, the notice shall be resides in the served eight days exclusive, and if in any other coun bringing a ing to be of 8 verse solicitor county, if out exclusive. of it, 14 days ty, fourteen days exclusive before the day of hearing or argument. The cause must be set down for hearing for the first day of the term, if there be time for that purpose, or for as as early a day in term as circumstances will permit. (d) 8. Complain If the complainant neglect to set down the cause, and ant neglecting bring the same to a hearing at the first term after the to bring the cause to a same is in readiness, to be set down, and an affidavit of hearing the first term, &c. such default shall be made and filed in the register or that the de liberty to bring fendant be at assistant register's office, an order may be entered that on the same. the defendant be at liberty to bring on the same at any time thereafter; and if the defendant shall set down the cause as aforesaid, and the complainant shall not appear to argue the same, the bill shall be dismissed of course; but if the complainant shall appear, unless the complainant has also set down the cause, the defendant shall have a right to open and close the argument, (e) vide Dismissal. If on the demurrer the defendant prevails, the complainant will be dismissed;-if the demurrer be overruled, the defendant must answer. Presuming that a defendant would in no case endeavour to evade the plaintiff's bill by demurrer, when he could, bona fide, venture to deny the truth of its alle gations on oath, it is become an established rule of judgment in courts of equity that every thing to which the demurrer extends is true. (f) A demurrer must express the grounds upon which it is founded; and in doing this it must be positive, explicit, and certain, leaving nothing to supposition or inference. (g) If the demurrer does not go to the whole bill, it must express to what particular parts it is meant to extend; the court cannot else determine on the validity of the demurrer without reading the whole bill. (h) to be signed by counsel. 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 demurrer. (1) A demur- 9. Demurrer rer must be signed by counsel, but is good without it, and may be put in after the time for answering is out, and at any time, until the defendant is affected by process of contempt. (j) A demurrer is always in bar, and goes to the merits of the case. (k) It must be founded upon this, that taking the charges in the bill to be true, (7) it is an absolute, certain, clear proposition, that the bill would be dismissed with costs at the hearing. (m) And though the court has an idea that if the cause goes on, there may be some ground for a decrée, yet it seems it is bound to say whether, upon the (f) Barton, 107. note. 1 Ves. 426. (g) Idem, 108. See Edsell v. Buchanan, 2 Ves. 83. Bowman v. Lygon, 1 Anstr 4. Mynd v. Francis, Idem, 7. (h) Bart. 108. Per Hard. Chan. 2 Ves. 451. See Ward & Alii v. The Duke of Northumberland & Alii, 2 Anstr. 469. (i) 2 Mad. 225. Mitford's Pleadings, 99. (j) Idem, The East India Company v. (1) 2 Mad. 225. See Utterson v.Mair, (m) 2 Mad. idem. Brooke v. Hewit, 3 Ves. 255. 10. If demur- over 11. If a demurrer be ge whole bill. facts as stated in the bill, if proved or confessed at the hearing, a decree would be made. (n) If a demurrer is put in, and overruled, it is never allowed to stand for an answer. So a defendant cannot demur and plead, or demur and answer to the whole bill. (0) A demurrer to relief is overruled by an answer to the discovery of the facts. (p) 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. (q) If a demurrer is general to the whole bill, and there neral to the is any part, either as to the relief, or the discovery, to which the defendant ought to put in an answer, it is generally considered that the demurrer being entire must be overruled. (r) 12. Demur rer admits all the facts. 13. Will lie for want of jurisdiction. A demurrer admits all the facts that are well pleaded,(s) and the facts alone without the conclusion of law.(t) Demurrers may be, 1st. For want of jurisdiction, because no equity is apparent on the face of the bill en14. Will lie titling the plaintiff to relief in equity. 2d. To the of the person, person. 3d. On account of a deficiency in the frame of the bill.(u) to the disability 15. On ac 1. A bill stating a'case in which a court of equity gives count of defi-relief, cannot be demurred to for want of equity: but, ciency in the frame of the whenever no sufficient ground is shown for a court of equity to interfere, the defendant may demur for want bill. (n) 2 Mad. 225. Kemp v. Prior, 7 Ves. 245. (e) Dormer v. Fortescue, 2 Atk. 283. Jones v. The Earl of Strafford, 3 P. Wms. 80.Anon. S Atk. 530. (9) 2 Mad. 226. (r) 2 Mad. 226. (a) 2 Mad. 227. The East India Company v. Henchman, 1 Ves. jun. 289. (t) 2 Mad. 227. Ford v. Peering, 1Ves. (p) Roberts v. Clayton, 5 Anstr. 715. jun. 78. 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