A demurrer to an answer or plea in equity is improper ; Pennsylvania Co. v. Bay, 138 Fed. 203 ; and is not permitted ; Stokes v. Farnsworth, 99 Fed. 836. The sufficiency of an answer is properly questioned by setting the cause down for hearing on bill and an swer ; Barrett v. Twin City Power Co., 111 Fed. 45; or of a plea by setting it down for argument ; Roundtree v. Gordon, 8 Mo. 19 ; but a demurrer to an answer filed and not objected to has been treated as an applica tion to set the cause down on bill and an swer ; Grether v. Wright, 75 Fed. 742, 23 C. C. A. 498.
Demurrers to discovery may be brought for most of the above causes ; 12 Beay. 423 ; Ocean Ins. Co. v. Fields, 2 Sto. 59, Fed. Cas. No. 10,406; and, generally, that the plaintiff has no right to demand the discovery asked for, either in whole or in part ; 8 Ves. 398; 2 Russ. 564; or to ask it of the defendant ; Story, Eq. Pl. § 570. "A dethurrer to dis covery is not, in its nature, a pleading at all, but a mere statement in writing that the defendant refuses to answer certain al legations or charges in the bill, for reasons which appear upon the face of the bill, and which the demurrer points out." Langd. Eq. Pl. 61. See Discovaar.
The effect of a demurrer when allowed is to put an end to the suit, unless it is con fined to a part of the bill, or the court gives the plaintiff leave to amend ; Fleece v. Rus sell, 13 111. 31; it is within the discretion of the court whether the defendant will be ruled to answer after overruling a demurrer; and it may enter a decree against him at once, or hear evidence, or refer to a master to take evidence before entering a decree; Iglehart v. Miller, 41 Ill. App. 439 ; Bruschke v. Der Nord Chicago Schuetzeu Verein, 145 Ill. 433, 34 N. E. 417. If overruled, the defendant must make a fresh defence by answer; Cole County v. Angney, 12 Mo. 132 ; unless he obtain permission to put in a plea; Ad. Eq. 336. Since, as shown supra, the demurrer does not admit the truth of the bill, but only assumes it for the sake of argument, if the demurrer is overruled the plaintiff must pro ceed to prove his bill; Langd. Eq. Pl. 104. The court will sometimes disallow the de murrer without deciding that the bill is good, reserving that question till the hearing; id. 106.
Equity rules usually provide for a certifi cate of the opinion of counsel that the demur rer is well founded in law, and an affidavit by defendant that it is not interposed for de lay.
At Law. A general demurrer is one which excepts to the sufficiency of a previous plead ing in general terms, without showing spe cifically the nature of the objection ; and such demurrer is sufficient when the objection is on matter of substance; Steph. Pl. 159; Co. Litt. 72 a; Flanagan v. Ins. Co., 25 N. J. L. 506; Gordon v. State, 11 Ark. 12; Coffin v. Knott, 2 G. Greene (Ia.) 582, 52 Am. Dec. 537 ; Tyler v. Canaday, 2 Barb. (N. Y.) 160; Cheek v. Herndon, 82 Tex. 146, 17 S. W. 763. A court, after overruling a general demurrer to a complaint on the ground that it does not state a: cause of action, may in its dis cretion enter final judgment on the demur rer; Alley v. Nott, 111 U. S. 472, 4 Sup. Ct. 495, 28 L. Ed. 491.
A special demurrer is one which excepts to the sufficiency of the pleadings on the opposite side, and shows specifically the na ture of the objection and the particular ground of exception ; Co. Litt. 72 a. An ob
jection to a complaint, on the ground of ambiguity or uncertainty, can be taken only by special demurrer ; Kirsch v. Derby, 96 Cal. 602, 31 Pac. 567; as must be a demurrer to a plea on the ground of duplicity ; Willey v. Carpenter, 64 Vt. 212, 23 Atl. 630, 15 L. R. A. 853 ; but see Corpening v. Worthington & Co., 99 Ala. 541, 12 South. 426.
It is necessary where the objection is to the form, by the statutes 27 Eliz. c. 5 and 4 Anne, c. 16; Blakeney v. Ferguson, 18 Ark. 347; Mitchell v. Williamson, 6 Md. 210; Lyon v. Fish, 20 Ohio, 100. Under a special demur rer the party may, on the argument, not only take advantage of the particular faults which his demurrer specifies, but also of all objections in substance.
It is not enough that a special demurrer object in general terms, that the pleading is "uncertain, defective, and informal," or the like, but it is necessary to show in what respect• It is uncertain, defective, and infor mal; 1 Wins. Saund. 161, n. 1, 337 b, n. 3; Steph. P1. 159, 161 ; 1 Chit. Pl. 642.
A demurrer may be for insufficiency either in substance or in form; that is, it may be either on the ground that the case shown by the opposite party is essentially insuffi cient, or on the ground that it is stated in an inartificial manner ; Hob. 164; Richmond v. Brookings, 48 Fed. 241. But such a de murrer does not raise the question of the ju risdiction of the court ; Saxton v. Seiberling, 48 Ohio St. 554, 29 N. E. 179. It lies to any of the pleadings, except that there may not be a demurrer to a demurrer; Salk. 219 ; Ba con, Abr. Pleas (N 2). But it will not lie to a supplemental complaint; Lewis v. Rowland, 131 Ind. 37, 30 N. E. 796; while it will to a supplemental answer ; Eckert v. Binkley, 134 Ind. 614, 33 N. E. 619, 34 N: E. 441. Demur rer may be to the whole or a part of the pleading ; but if to the whole, and a part be good, the demurrer will be overruled ; 13 East 76; Backus v. Richardson, 5 Johns. (N. Y.) 476; Brown v. Castles, 11 Cush. (Mass.) 348 ; Tucker v. Hart, 23 Miss. 548 ; Brown v. Duchesne, 2 Curt. C. C. 97, Fed. Cas. No. 2, 003; Walton v. Stephenson, 14 Ill. 77 ; Scott v. State, 2 Md. 284; Pinkum v. City of Eau Claire, 81 Wis. 301, 51 N. W. 550; Alabama Great Southern R. Co. v. Tapia, 94 Ala. 226, 10 South. 236. But see Barbee v. Road Co., 6 Fla. 262; Whiting v. Heslep, 4 Cal. 327 ; State v. Clark, 9 Ind. 241; Henderson v. Stringer, 6 Gratt. (Va.) 130; Com. v. Hughes, 8 B. Monr. (Ky.) 400. The objection must appear on the face of the pleadings; 2 Saund. 364; Town of Hartland v. Town of Windsor, 29 Vt. 354 ; or upon over of some instrument defectively forth therein; 2 Saund. 60, n.; Williams v. Boyle, 1 Misc. 364, 20 N. Y. Supp. 720. A joint demurrer by two defend ants to a declaration for want of a cause of action should be overruled if the declara tion- sets forth a cause of action as to either of them ; May v. Jones, 88 Ga. 308, 14 S. E. 552, 15 L. R. A. 637, 30 Am. St. Rep. 154; Lancaster v. Roberts, 144 Ill. 213, 33 N. E. 27.