The term "speaking demurrer" originated with Lord Hardwicke in Brownewood v. Edwards, 2 Ves. 243, 245, and it was used by the reporters in the syl labi of that case and of Edsili v. Buchanan, 4 Bro. C. C. 264, nearly fifty years later. The editor of Tyler's edition of Mitford, in a note to the word in his Index, assumes that Mitford ignored the term because Lord Hardwicke had used it in ridicule and not as a new technical distinction. However that may be, it seems to have been too generally adopted by courts and text-writers to be now disregarded as an apt characterization of what it was meant to express.
A defendant may at the bearing of a de murrer orally assign another cause, different from or in addition to those on the record, which' is termed a demurrer ore tenus, and may be sustained, although that on the rec ord is overruled ; Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 149 ; Wright v. Dame, 1 Mete. (Mass.) 237 ; Chase v. Searles, 45 N. H. 512; 8 Ves. 405 ; as, on demurrer to gen eral relief, the objection of non-joinder may be made ore ten-us; Garlick v. Strong, 3 Paige Ch. 440; 6 Ves. 779. Causes of demur rer ore tenus must be coextensive with thosf on the record, and if the latter apply to the whole bill, the former will not be allowed to part of it ; 1 De G., J. & S. 38; and a cause overruled cannot be repealed ore tenus; 1 Anst. 1; but see 12 W. R. 394; nor, after demurrer to the whole bill has been over ruled, can part of It be demurred to ore tenus; 2 Yo. & J. 490; Clark v. Davis, Har ring. Cb. (Mich.) 227.
Demurrers are not applicable to pleas or answers. If a plea or answer is bad in sub stance, it may be shown on hearing ; and if the answer is insufficient in form, exceptions should be filed ; Story, Eq. Pl. §§ 456, 864 ; Langd. Eq. Pl. 58 ; Winters v. Claitor, 54 Miss. 341; Travers v. Ross, 14 N. J. Eq. 254.
If the bill contains an allegation of fraud, it must be denied by answer, whatever de fence may be adopted to other parts of the bill; because fraud gives jurisdiction to the court and lays a foundation for relief ; hence a general demurrer to a bill containing such an allegation cannot be allowed ; Niles v. Anderson, 5 How. (Miss.) 366.
Demurrers to relief are usually brought for causes relating to the jurisdiction, as that the subject is not cognizable by any court, as in some cases under political trea ties ; 1 Ves. 371; Foster v. Neilson, 2 Pet. (U. S.) 253, 7 L. Ed. 415 ; but see Cherokee Nation v. Georgia, 5 Pet. (U. S.) 1, 8 L. Ed. 25; U. S. v. Clarke, 8 Pet. (U. S.) 436, 8 L. Ed. 1001; Martin v. Hunter, 1 Wheat. (IL S.) 304, 4 L. Ed. 97 ; Carneal v. Banks; 10 Wheat. (U. S.) 181, 6 L. Ed. 297; Gordon v. Kerr, 1 Wash. C. C. 322, Fed. Cas. No. 5,611.
It is frequently said that by demurring to a bill in chancery, for want of equity, the defendants submit to the jurisdiction of the court, as if that question were to be raised it should have been presented by plea ; Bank of Bellows Falls v. R. Co., 28 Vt. 470; 1 Atk. 543, where Lord Hardwicke is represented as having said: "The defendant should not have demurred for want of jurisdiction, for a demurrer is always in bar, and goes to the merits of the case ; and therefore it is in formal and improper in that respect, for he should have pleaded to the jurisdiction." In a note to section 456 of Sto. Eq. Pl. after quoting these words it is said : "This lan guage is loose and inaccurate. If the court has no jurisdiction, the objection may be taken by demurrer, if it is apparent on the face of the bill; Mitt Eq. PL by Jeremy, 110, 216; 2 Sim. & Stu. 431. And a demur rer may be for causes not going to the mer its." This note in Sumner's edition, the first after Judge Story's death, appears from the editor's prefatory note to be the author's own comment. Such objection on demurrer is allowed in the federal courts ; Ober v. Gallagher, 93 U. S. 199, 23 L. Ed. 829 ; Peale v. Coal Co., 172 Fed. 639 ; but if one cause assigned goes to the merits it operates as a waiver of the objection to the jurisdiction ; id. In sonic states, where the jurisdiction in equity is more or less restricted, it is held that the question of jurisdiction may be raised by general demurrer ; Jones v. New
hall, 115 Mass. 244, 15 Am. Rep. 97 ; Earle v. Humphrey, 121 Mich. 518, 80 N. W. 370 ; and that it is the proper method of raising it ; Pennsylvania R. Co. v. Bogert, 209 Pa. 589, 59 Atl. 100; Love v. Robinson, 213 Pa. 480, 62 Atl. 1065.
So demurrers to relief will lie in certain cases of confiscation ; 3 Ves. 424 ; 10 id. 354 ; see Ware v. Hylton, 3 Dail. (U. S.) 199, 1 L. Ed. 568 ; and questions of boundaries ; Story, Eq. Pl. 347; 1 Ves. 446 ; as to law in the United States, see Massie v. Watts, 6 Cra. (U. S.) 158, 3 L. Ed. 181; N. Y. v. Connecti cut, 4 Dall. (U. S.) 3, 1 L. Ed. 715 ; State v. People, 5 Pet. (U. S.) 284, 8 L. Ed. 127 ; State v. State, 14 Pet. (U. S.) 210, 10 L. Ed. 423; or that it is not cognizable by a court of equity ; Taylor v. Buchan, 16 Ga. 541; Groves' Heirs v. Fulsome, 16 Mo. 543, 57 Am. Dec. 247 ; Box 7. Stanford, 13 Smedes & M. (Miss.) 93, 51 Am. Dec. 142 ; L. R. 8 Ch. App. 369 ; or that some other court of equity has jurisdiction properly ; Trustees of Philadel phia Baptist Ass'n v. Hart's Ex'rs, 4 Wheat. (U. S.) 1, 4 L. Ed. 499; Mays v. Taylor, 7 Ga. 243 ; 1 Ves. 203 ; or that some other court has jurisdiction properly ; Bingham v. Cabot, 3 Dall. (U. S.) 382, 1 L. Ed. 646 ; Wallace v. Fletcher, 30 N. H. 444 ; Louisville, C. & C. R. Co. v. Letson, 2 How. (U. S.) 497, 11 L. Ed. 353; to the person, as that the plain tiff is not entitled to sue, by reason of per sonal disability, as infancy, idiocy, etc. ; Jac. 377 ; bankruptcy and assignment ; 1 Y. & C. 172; or has no title to sue in the character in which he sues ; 2 P. Wins. 369 ; Living ston v. Lynch, 4 Johns. Ch. 575 ; or that the relief prayed is barred by limitation ; Mer cantile Nat. Bank v. Carpenter, 101 U. S. 567, 25 L. Ed. 815 ; Parmelee v. Price, 208 Ill. 544, 70 N. E. 725 ; Nash v. Ingalls, 101 Fed. 645 ; or a portion of it; City of Mem phis v. Cable Co., 145 Fed. 602, 76 C. C. A. 292 ; to the substance of the bill, as that the matter is too trivial; Moore v. Lyttle, 4 Johns. Ch. (N. Y.) 183; Carr v. Iglehart, 3 Ohio St. 457 ; 1 Vern. 359 ; that the plaintiff has no interest in the matter ; Mitf. Eq. Pl. 154; 2 S. & S. 592; Long v. Majestre, 1 Johns. Ch. (N. Y.) 305 ; Haskell v. Hilton, 30 Me. 419 ; Barr v. Clayton, 29 W. Va. 256, 11 S. E. 899 ; Keyser v. Renner, 87 Va. 249, 12 S. E. 406 ; or that the defendant has no such interest; 2 Bro. C. C. 332 ; 5 Madd. 19 ; Wakeman v. Bailey, 3 Barb. Ch. (N. Y.) 485; De Wolf v. Johnson, 10 Wheat. (U. S.) 384, 6 L. Ed. 343 ; or that the bill is to enforce a penalty; 4 Bro. Ch. 434 ; to the frame and form of the bill, as that there is a defect or want of form ; Mitf. Eq. Pl. 206 ; 5 Russ. 42 ; Ulrici v. Papin, 11 Mo. 42 ; or that the bill is multifarious ; Story, Eq. Pl. § 530, n. ; 2 S. & S. 79; Layton v. State, .4 Harring‘ (Del.) 9; White v. Curtis, 2 Gray (Mass.) 471; Oliver v. Piatt, 3 How. (U. S.) 412, 11 L. Ed. 622; McDermott v. McGown, 4 Edw. (N. Y.) 592; that there is a want or misjoinder of plaintiffs ; 1 P. Wins. 428 ; Mitchell v. Lenox, 2 Paige, Ch. (N. Y.) 281; Wormley v. Wormley, 8 Wheat. (U. S.) 451, 5 L. Ed. 651; Southern Life Ins. & Trust Co. v. Lanier, 5 Fla. 110, 58 Am. Dec. 448 ; White v. Curtis, 2 Gray (Mass.) 467; Betton v. Williams, 4 Fla. 11; but only when it ap pears from the facts disclosed by the bill ; Farson v. Sioux City, 106 Fed. 278 ; Walling v. Thomas, 133 Ala. 426, 31 South. 982; for a misjoinder of parties defendant where those only can demur who are improperly joined ; Bigelow v. Sanford, 98 Mich. 657, 57 N. W. 1037 ; or where laches affirmatively appear on the face of a bill ; Hinchman v. Kelley, 54 Fed. 63, 4 C. C. A. 189 ; Thurmond v. Ry. Co., Fed. 697, 72 C. C. A. 191 ; Tetrault v. Fournier, 187 Mass. 58, 72 N. E. 351; Thompson v. Iron Co., 41 W. Va. 574, 23 S. E. 795 ; Hawley v. Pound, 76 Neb. 130, 106 N. W. 458; or staleness of claim ; Hub bard v. Manhattan Trust Co., 87 Fed. 51, 30 C. C. A. 520 ; but only . when it appears on the face of the bill ; Marsh v. Marsh, 78 Vt. 399, 63 Atl. 159; but laches as an equitable defence cannot be raised on demurrer ; Drake v. Wild, 65 Vt. 611, 27 Atl. 427 ; Gleason v. Carpenter, 74 Vt. 399, 52 Atl. 966.