In Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838, the court said that "sitting, as it were, as an international, as well as a domestic tribunal" they were "unwilling in this case to proceed on the mere technical admissions made by the de murrer," and they accordingly overruled it without prejudice and forebore to proceed until all the facts were before the court on the evidence.
By Federal Equity Rule 29, 33 Sup. Ct. xxvi (in effect February 1, 1913), demurrers (and pleas) are abolished ; every defence in law shall be made by motion to dismiss or in the answer ; every such point of law going to the whole or a material part of the cause of action may be disposed of before final hearing at the discretion of the court.
A demurrer may be either to the relief asked by the bill, or to both the relief and the discovery ; Higinbotham v. Burnet, 5 Johns. Ch. (N. Y.) 184 ; Brownell v. Curtis, 10 Paige Ch. (N. Y.) 210 ; but not to the dis covery alone where it is merely incidental to the relief ; 2 Bro. C. C. 123 ; 1 Y. & C. 197 ; 1 S. & S. 83. It is said by Langdell (Eq. Pl. 60) that every proper demurrer is to relief alone ; and that while it always, if well taken, protects the defendant from giving any discovery, that is a legal consequence merely. As to exceptions to avoid self-crim ination, see Sharp v. Sharp, 3 Johns. Ch. (N. Y.) 407; Patterson v. Patterson, 2 N. C. 167; Wolf v. Wolf's Ex'r, 2 H. & G. (Md.) 382, 18 Am. Dec. 313. If it goes to the whole of the relief, it generally defeats the discovery if successful ; 2 Bro. C. C. 319 ; Souza v. Belcher, 3 Edw. Ch. (N. Y.) 117 ; Miller v. Ford, 1 N. J. Eq. 358; Welles v. R. Co., Walk. Ch. (Mich.) 35; Pool v. Lloyd, 5 Mete. (Mass.) 525 ; otherwise, if to part only ; Ad. Eq. 334 ; Story, Eq. Pl. § 545 ; Brownell v. Curtis, 10 Paige, Ch. (N. Y.) 210.
It may be brought either to original or supplemental bills ; and there are peculiar causes of demurrer in the different classes of supplemental bills ; 2 Madd. 387; 4 Sim. 76 ; 3 Hare, 476 ; 3 P. Wms. 284; Dias v. Merle, 4 Paige Ch. (N. Y.) 259; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250; Whit ing v. Bank, 13 Pet. (U. S.) 6, 14, 10 L. Ed. 33 ; Story, Eq. PL § 611.
Demurrers are general, where no particular cause is assigned except the usual formulary that there is no equity in the bill, or special, where the particular defects are pointed out ; Story, Eq. Pl. § 455 ; Dan. Ch. Pr. 586. Gen eral demurrers are used to point out defects of substance ; special, to point out defects in form. "The terms have a different meaning
[in equity] from what they have at common law ;" Langd. Eq. Pl. 58.
The defendant may demur to part of the bill ; Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106 ; and plead or answer to the residue, or both plead and answer to separate parts thereof ; 3 P. Wms. 80; Clark v. Phelps,'6 Johns. Ch. (N. Y.) 214 ; Bull v. Lien, 4 Wis. 54; taking care so to apply them to different and distinct parts of the bill that each may be consistent with the others ; 3 M. & C. 653 ; Gray v. Began, 23 Miss. 304 ; Story, Eq. Pl. § 442 ; but if it be to the whole bill, and a part be good, the demurrer must be overrul ed ; Graves v. Hull, 27 Miss. 419 ; Baruawell v. Threadgill, 40 N. C. 86 ; Burns y. Hohbs, 29 Me. 273 ; Robinson v. Guild, 12 Mete. (Mass.) 323 ; Gay v. Skeen, 36 W. Va. 582, 15 S. E. 64. If it is to the 'whole bill it can not be sustained if, for any equity apparent in the bill, complainants are entitled to re lief; George v. Banking Co., 101 Ala. 607, 14 South. 752 ; Merriam v. Pub. Co., 43 Fed. 450. A general demurrer to a bill must be overruled unless it appears that on no pos sible state of the evidence could a decree be made ; Failey v. Talbee, 55 Fed. 892; Dar rah v. Boyce, 62 Mich. 480, 29 N. W. 102.
Demurrers lie only for matter apparent on the face of the bill, an• not upon any new matter alleged by the defendant; Beames, Ord. in Ch. 26; 6 Sim. 51; 2 Sch. & L. 637; Southern Life Ins. & Trust Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448 ; Black v. Shreeve, 7 N. J. Eq. 440 ; Hinchman v. Kelley, 54 Fed. 63, 4 C. C. A. 189. A demurrer which alleges, as cause of demurrer, new matter, in addition to what is contained in the bill, is termed a speaking demurrer and must be overruled ; 4 Bro. C. C. 254 ; 4 Drew. 306; Brooks v. Gibbons, 4 Paige Ch. (N. Y.) 374; Ramage v. Towles, 85 Ala. 589, 5 South. 342; Stewart v. Masterson, 131 U. S. 151, 9 Sup. Ct. 682, 33 L. Ed. 114 ; and so also where an attempt to sustain a demurrer is made by the averment of some fact in an answer it is of the same nature and is not aided thereby; Kuypers v. Reformed Dutch Church, 6 Paige Ch. (N. Y.) 570. To constitute a speaking demurrer, the averment must be necessary to support the demurrer ; 2 Mol. 295; Sax on v. Barksdale, 4 Desaus. (S. C.) 522; and cases supra; and not mere immaterial mat ter which, though improper as surplusage, is not fatal to the demurrer, 1 Sim. 5; 2 Sim. & Stu. 127.