been held in the second circuit, that "Equity Rule 18 provides that, after the order pro confesso, the cause shall proceed ex parte; but this does not mean without notice to a party who has appeared in the cause. Such party is entitled to notice, and has the right to be heard as to the form of the decree, and upon such other questions as can be presented upon the complainant's pleadings and proofs. This is the uniform construction given to the Rule throughout this circuit." 13 Where a bill for the infringement of a patent alleges infringement of "the invention" of the plaintiffs, and is taken as confessed, it seems that it cannot be claimed in subsequent proceedings in the same suit that the patent is void upon its face.14 When there are more than one defendant who are charged with a joint liability, after the bill has been taken as confessed against one, no final decree can be made against him, unless and until a decree is entered against those who appear and defend the suit.15 It seems that a decree taking a bill as confessed is of no effect unless followed by, or included in a final decree.16 The entry of a final decree by default upon notice to the defendants, without the previous entry of a formal order taking the bill as confessed, is an irregularity for which the decree cannot be set aside upon motion after the term at which it is rendered.17 But a decree entered pro confesso will be set aside upon motion at a subsequent term, when entered before the time allowed. the defendant by the rules to plead to the bill.18 An appeal can be taken from the final decree after a bill has been taken as confessed.19 Upon such an appeal the decree may be reversed for a defect in the service of the subpoena,20 for failure to appoint a guardian ad litem when required,21 and it seems for a want of indispensable parties.22 Otherwise, the only question for the consideration of the court is whether the allegations in the bill are sufficient to support the decree.23 It seems that the objection that the complainant has an adequate remedy at law may

18 Judge Wallace in Bennett v. Hoef17 Blatchf. 341, 342.

ner,

14 Dobson v. Hartford Carpet Co., 114 U. S. 439, 446, 447.

15 Frow v. De La Vega, 15 Wall. 552. 16 Lockhart v. Horn, 3 Woods, 542, 548.

17 Linder v. Lewis, 1 Fed. R. 378. 18 Fellows v. Hall, 3 McLean, 281.

19 Frow v. De La Vega, 15 Wall. 552; Butterworth v. Hill, 114 U. S. 128. 20 O'Hara v. MacConnell, 93 U. S. 150; Butterworth v. Hill, 114 U. S. 128.

21 O'Hara v. MacConnell, 93 U. S. 150. 22 O'Hara v. MacConnell, 93 U. S. 150. 23 Masterson v. Howard, 18 Wall. 99; Ohio C. R. R. Co. v. Central Trust Co., 133 U. S. 83.

be disregarded by the appellate court.24 When the defendant had not moved for nine months after the appointment of a receiver, and meanwhile the bill had been taken against him as confessed, it was held too late to claim that no relief could be granted, because the complainant had an adequate remedy at law.25

24 Brown v. Lake Superior Iron Co., 134 U. S. 530.

25 Brown v. Lake Superior Iron Co., 134 U. S. 530.

CHAPTER VIII.

DEMURRERS.

§ 105. Definition and General Characteristics of a Demurrer. A demurrer is a pleading which admits the truth of a bill, but claims that the defendant should be excused from answering thereto and the complainant be denied relief on account of some irregularity or insufficiency existing in it. As the name denotes, demurrers were borrowed from the common law. They are so termed because the defendant demoratur, or will go no farther.2 A speaking demurrer is one that introduces a new fact or averment which is necessary to support the demurrer, and does not appear distinctly on the face of the bill. Such a demurrer is always bad, and will be overruled. But in order to constitute a speaking demurrer, the fact or averment introduced must be one which is necessary to support the demurrer and is not found in the bill; the introduction of immaterial facts, or averments, or of arguments, is improper, but constitutes mere surplusage and will not vitiate the demurrer.5 A demurrer is also bad if it relies for its support upon averments in an answer. A demurrer must not be addressed to a point within the discretion of the court; if so, it will be overruled. It has been held, that when the bill shows that a defendant is not an inhabitant of the district that defect may be raised by demurrer.8 A demurrer cannot be filed to an answer.9

§ 106. Admissions by a Demurrer.

§ 105. 1 Langdell's Eq. Pl. §§ 53, 92. 2 Daniell's Ch. Pr. (5th Am. ed.) 543; 3 Bl. Com. 314.

8 Edsell v. Buchanan, 4 Brown Ch. C. 254; Davies v. Williams, 1 Simons, 5, 7; Lamb v. Starr, Deady, 350; Daniell's Ch. Pr. (2d Am. ed.) 656, note 2; Story's Eq. Pl. § 448.

Edsell v. Buchanan, 4 Brown Ch. C. 254; Story's Eq. Pl. § 448; Daniell's Ch. Pr. (2d Am. ed.) 656, note 2.

A demurrer admits the

truth of the allegations of fact in the bill. "As a matter of construction of an ambiguous clause, the court is bound to adopt that interpretation which is least favorable to the plaintiff; but the defendant is not entitled to press this principle so far as to draw any inferences of fact he pleases which may happen to be not inconsistent with the averments of the bill."2 It has been said that "reasonable presumptions are admitted by demurrer as well as the matters expressly alleged."3 The court will not infer from an allegation, that a fraud was committed at a time beyond the limit of the Statute of Limitations, that the fraud was then discovered. "A demurrer only admits facts well pleaded; it does not admit matters of inference and argument, however clearly stated; it does not admit, for example, the accuracy of an alleged construction of an instrument, when the instrument itself is set forth in the bill, or a copy is annexed, against a construction required by its terms, nor the correctness of the ascription of a purpose to the parties when not justified by the language used. The several averments of the plaintiff in the bill as to his understanding of his rights, and of the liabilities and duties of others under the contract, can, therefore, exert no influence upon the mind of the court in the disposition of the demurrer." 5 "Though the authorities are by no means unanimous, the weight of opinion is in favor of the proposition that where profert is made of a recorded paper it is for all purposes presented to the court as a part of the pleading, and an objection thereto may be taken by demurrer." 6 A demurrer does not admit conclusions of law; and in the construction of the bill upon the argument they may

§ 106. Bailey v. Birkenhead, Lancashire & Cheshire Junction Ry. Co., 12 Beav. 433, 443; Pacific R. R. of Missouri v. Missouri Pacific Ry. Co., 111 U. S. 505, 522; Boyer v. Boyer, 113 U. S. 689, 701.

2 Sir Page Wood, V. C., in Simpson v. Fogo, 1 J. & H. 18, 23; s. c 6 Jurist N. s. 949. See Union Pac. Ry. Co. v. Mercer, 28 Fed. R. 9.

3 Mr. Justice Clifford in Amory v. Lawrence, 3 Clifford, 523, 536.

↑ Sheldon v. Keokuk No. Line Packet Co., 8 Fed. R. 769, 777; Johnson v. Powers, 13 Fed. R. 315; Jones v. Slaw son, 33 Fed. R. 632, 636.

5 Mr. Justice Field in Dillon v. BarVOL. I.

- 14

nard, 21 Wall. 430, 437, 438. See also s. c. 1 Holmes, 386; United States v. Ames, 99 U. S. 35, 45; Cornell v. Green, 43 Fed. R. 105, 107; Interstate Land Co. v. Maxwell Land Co., 139 U. S. 569.

6 Coxe, J., in Bogart v. Hinds, 25 Fed. R. 484, citing Knott v. Burleson, 2 G. Greene (Iowa), 600; Wilder v. M'Cormick, 2 Blatchf. 31, 35; Grahame v. Cooke, 1 Cranch C. C. 116; Douglass v. Rathbone, 5 Hill (N. Y.), 143; Rantin v. Robertson, 2 Strobh. Law (S. C.), 366; 1 Chitty's Pl. 415, 416. So held of patents and reissued patents by Coxe, J., in International Terra Cotta Lumber Co. v. Maurer, 44 Fed. R. 618, 619.

be disregarded. Such, for example, are the allegations that a tax is "unreasonable and excessive," without the statement of any valid reasons for so considering it; that a fee charged by an ordinance styling it wharfage "is not real wharfage, but a duty on tonnage." 9 "The words 'fraud' and 'conspiracy' alone, no matter how often repeated in a pleading, cannot make a case for the interference of a court of equity. Until connected with some specific acts for which one person is in law responsible to another they have no more effect than other words of unpleasant signification." 10 The words "fraudulently," "deceitfully," and "by mistake" are conclusions of law, and will be disregarded." Averments that what was done was "colorable," "a fraud," " a breach of trust," and "a scheme by which Blair and Taylor were to get" certain stock or shares of stock in a corporation "without paying for them," are allegations of conclusions of law, which a demurrer does not admit.12 An averment that a thing was done with the intent to defraud is an allegation of fact.13 A demurrer does not admit a false allegation concerning a fact of which the court will take judicial notice.14 An allegation as to the future effect of an act threatened by the defendant will, however, be admitted by a demurrer.15

§ 107. Demurrers to Parts of Bills. A demurrer may be to the whole, or to a part of a bill, or to both the whole and separate parts of a bill.2 Separate demurrers may be filed for different causes to separate parts of a bill.3 If only a part of the bill be demurred to, the demurrer must be accompanied by a plea or answer to what remains. The defendant may demur to part, plead to part, and answer as to the residue.5 Such a mode of pleading