Milltcr, J.,
delivered the opinion of the Court.
The bill in this case was filed by the appellee against the appellants, for an injunction to perpetually restrain injury to the complainant’s property, brought about as alleged, by the manufacturing of vitriol and sulphuric acid in a factory conducted and operated by the defendants upon premises adjoining those of the complainant. Separate demurrers were filed by each of the defendants, mainly upon the ground that the bill was multifarious, but the Court passed an order overruling the demurrers and requiring the defendants to answer on or before the first day of the succeeding term. From this order a separate appeal has been taken by each defendant, and there is a motion to dismiss the same upon the ground that no appeal lies from such an order.
By the law, regulating appeals from Courts of equity, {Code, Art. 5, sec. 20,) an appeal is allowed “from any■ [472]*472final decree, or order in the nature of a final decree,” and it is well settled, that an order of the latter character, to admit of an appeal, must be one which finally settles some disputed right or interest of the parties. Dillon vs. Mutual Ins. Co., 44 Md., 395. In our opinion an order overruling a demurrer to the entire bill, does finally settle (so far as the Court passing it can do so,) a disputed right of the parties. -It is true that demurrers are no favorites of Courts of equity, nor are they often resorted to, but it is the undoubted privilege of a defendant in an equity suit to demur to the bill. By so doing he challenges and denies, either the jurisdiction of the Court, or that the bill, on its face, states any case which the defendant can be lawfully required to answer, or otherwise notice or defend. He says, in fact, to the complainant, you have no right to bring me into a Court of equity upon this case. If the demurrer be sustained, the complainant is out of Court, and it is conceded he can then appeal, for by such action the right to proceed with his case is finally settled against him, and in favor of the defendant. So if the demurrer be overruled, the Court by its order to that effect determines and settles in favor of the complainant and against the defendant, the disputed right of the former to proceed in equity upon the case made by1 his bill, and it seems to us not only convenient, but most important for both parties that such a question should be finally settled in limine, and by appeal if necessary, before the costs and expenses of a long litigation have been incurred. An order settling either way a right so important as this does not, in our judgment, fall within the class of mere interlocutory orders which can only be reviewed upon appeal from the final decree in the cause. Nor. do we fear or anticipate that by allowing appeals from such orders, the privilege will be abused to the prejudice of suitors or the delay of justice. It has not been so in the past, though the appeal has been enter[473]*473tainecl and acted on by tbe appellate Court, in every case where one has been* taken from such an order. And even if we were inclined to put a different construction upon the statute and to deny the right of appeal in such cases we should find ourselves embarrassed if not precluded from so deciding, by the strong and numerous precedents in favor of the right, which we shall now briefly notice.
In Alexander’s Ch. Prac., 183, the learned author, in speaking of the various decisions under the Act of 1818, by which appeals were confined to “ decretal orders,” as not easily reconeileable, refers to the case of Danels vs. Taggart, 1 G. & J., 311, in which it was adjudged that an appeal would not lie from an order overruling a plea, but says that in Wolf vs. Wolf, 2 H. & G., 382, “it had been previously held that an appeal might be taken from an order overruling a demurrer.” Afterwards by the Act of 1830, ch. 185, the phraseology of the law was changed, and it was made to read as it now stands in sec. 20, Art. 5 of the Code. Since the passage of that Act numerous appeals from orders overruling demurrers have been entertained by this Court. In Young vs. Lyons, 8 Gill, 162, and in Williams vs. West, 2 Md., 174, no question as to the right of appeal was made, though the latter was argued by Mr. Alexander for the appellees. In Maddox & Aur vs. White, 4 Md., 12, there was an appeal from an order granting an injunction, and also from an order overruling a demurrer to the bill, and here Mr. Alexander, for the appellee, made the point that no appeal would lie from the latter order, and said that though an appeal from such an order was entertained in Wolf vs. Wolf, yet the question was not raised in the case, and that in the subsequent case of Danels vs. Taggart, it was upon consideration, expressly adjudged that an appeal would not lie from an order overruling a plea, which he insisted, was in principle, the same, with reference to the right of appeal, as an order overruling a demurrei-. The [474]*474Court in disposing of the case, deemed it unnecessary to notice the question as to the regularity of the appeal, because they were of opinion the appellee was entitled to an affirmance on the merits, but they entertained the appeal and affirmed both orders. After this come the cases of Broadbent, et al. vs. The State, 7 Md., 416, and Griffin & Lee vs. Merrill, 10 Md., 364. In the first the question was not raised in argument, but in the second, counsel for the appellants contended that an appeal would lie, and Mr. Alexander for the appellee permitted the point to go unanswered. This was a very plain case in which the attention of the Court was again expressly directed by counsel to the right of appeal from such an order, and the Court not only entertained the appeal, hut reversed the order and dismissed the bill. This action of the Court, after its attention had been called to the question, falls but little short of an express adjudication that an appeal will lie from such an order. In fact it seems to have been treated on all sides as having settled the law on the subject, for in the subsequent cases of Wilson vs. Wilson, 23 Md., 162; Kunkel vs. Markell, 26 Md., 390 ; Collateral Security Bank vs. Fowler, 42 Md., 393, and Trego vs. Skinner, 42 Md., 426, appeals from precisely similar orders were entertained without further question either by Court or counsel. Now, while it may be conceded that action taken sub silentio in one or two instances would be entitled to very little consideration, yet the effect of a long series of cases such as we have cited cannot be overlooked or disregarded. If these precedents have not definitely settled the right of, appeal in such cases, it is certain we cannot attribute to the expression falling obiter from the Court in the recent case of Mayor, &c. vs. Weatherby, 52 Md., 449, the effect of settling the law to the contrary. In fact so far as the weight of precedent and practice goes it is clearly in favor of the construction we have placed upon the statute, [475]*475and sustains the right to appeal from such orders. The motion to dismiss must therefore be overruled, and we must determine whether the bill is open to the objections presented b}1, the demurrers.
In view of what is said in the case of Dittman vs. Repp, 50 Md.,
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Milltcr, J.,
delivered the opinion of the Court.
The bill in this case was filed by the appellee against the appellants, for an injunction to perpetually restrain injury to the complainant’s property, brought about as alleged, by the manufacturing of vitriol and sulphuric acid in a factory conducted and operated by the defendants upon premises adjoining those of the complainant. Separate demurrers were filed by each of the defendants, mainly upon the ground that the bill was multifarious, but the Court passed an order overruling the demurrers and requiring the defendants to answer on or before the first day of the succeeding term. From this order a separate appeal has been taken by each defendant, and there is a motion to dismiss the same upon the ground that no appeal lies from such an order.
By the law, regulating appeals from Courts of equity, {Code, Art. 5, sec. 20,) an appeal is allowed “from any■ [472]*472final decree, or order in the nature of a final decree,” and it is well settled, that an order of the latter character, to admit of an appeal, must be one which finally settles some disputed right or interest of the parties. Dillon vs. Mutual Ins. Co., 44 Md., 395. In our opinion an order overruling a demurrer to the entire bill, does finally settle (so far as the Court passing it can do so,) a disputed right of the parties. -It is true that demurrers are no favorites of Courts of equity, nor are they often resorted to, but it is the undoubted privilege of a defendant in an equity suit to demur to the bill. By so doing he challenges and denies, either the jurisdiction of the Court, or that the bill, on its face, states any case which the defendant can be lawfully required to answer, or otherwise notice or defend. He says, in fact, to the complainant, you have no right to bring me into a Court of equity upon this case. If the demurrer be sustained, the complainant is out of Court, and it is conceded he can then appeal, for by such action the right to proceed with his case is finally settled against him, and in favor of the defendant. So if the demurrer be overruled, the Court by its order to that effect determines and settles in favor of the complainant and against the defendant, the disputed right of the former to proceed in equity upon the case made by1 his bill, and it seems to us not only convenient, but most important for both parties that such a question should be finally settled in limine, and by appeal if necessary, before the costs and expenses of a long litigation have been incurred. An order settling either way a right so important as this does not, in our judgment, fall within the class of mere interlocutory orders which can only be reviewed upon appeal from the final decree in the cause. Nor. do we fear or anticipate that by allowing appeals from such orders, the privilege will be abused to the prejudice of suitors or the delay of justice. It has not been so in the past, though the appeal has been enter[473]*473tainecl and acted on by tbe appellate Court, in every case where one has been* taken from such an order. And even if we were inclined to put a different construction upon the statute and to deny the right of appeal in such cases we should find ourselves embarrassed if not precluded from so deciding, by the strong and numerous precedents in favor of the right, which we shall now briefly notice.
In Alexander’s Ch. Prac., 183, the learned author, in speaking of the various decisions under the Act of 1818, by which appeals were confined to “ decretal orders,” as not easily reconeileable, refers to the case of Danels vs. Taggart, 1 G. & J., 311, in which it was adjudged that an appeal would not lie from an order overruling a plea, but says that in Wolf vs. Wolf, 2 H. & G., 382, “it had been previously held that an appeal might be taken from an order overruling a demurrer.” Afterwards by the Act of 1830, ch. 185, the phraseology of the law was changed, and it was made to read as it now stands in sec. 20, Art. 5 of the Code. Since the passage of that Act numerous appeals from orders overruling demurrers have been entertained by this Court. In Young vs. Lyons, 8 Gill, 162, and in Williams vs. West, 2 Md., 174, no question as to the right of appeal was made, though the latter was argued by Mr. Alexander for the appellees. In Maddox & Aur vs. White, 4 Md., 12, there was an appeal from an order granting an injunction, and also from an order overruling a demurrer to the bill, and here Mr. Alexander, for the appellee, made the point that no appeal would lie from the latter order, and said that though an appeal from such an order was entertained in Wolf vs. Wolf, yet the question was not raised in the case, and that in the subsequent case of Danels vs. Taggart, it was upon consideration, expressly adjudged that an appeal would not lie from an order overruling a plea, which he insisted, was in principle, the same, with reference to the right of appeal, as an order overruling a demurrei-. The [474]*474Court in disposing of the case, deemed it unnecessary to notice the question as to the regularity of the appeal, because they were of opinion the appellee was entitled to an affirmance on the merits, but they entertained the appeal and affirmed both orders. After this come the cases of Broadbent, et al. vs. The State, 7 Md., 416, and Griffin & Lee vs. Merrill, 10 Md., 364. In the first the question was not raised in argument, but in the second, counsel for the appellants contended that an appeal would lie, and Mr. Alexander for the appellee permitted the point to go unanswered. This was a very plain case in which the attention of the Court was again expressly directed by counsel to the right of appeal from such an order, and the Court not only entertained the appeal, hut reversed the order and dismissed the bill. This action of the Court, after its attention had been called to the question, falls but little short of an express adjudication that an appeal will lie from such an order. In fact it seems to have been treated on all sides as having settled the law on the subject, for in the subsequent cases of Wilson vs. Wilson, 23 Md., 162; Kunkel vs. Markell, 26 Md., 390 ; Collateral Security Bank vs. Fowler, 42 Md., 393, and Trego vs. Skinner, 42 Md., 426, appeals from precisely similar orders were entertained without further question either by Court or counsel. Now, while it may be conceded that action taken sub silentio in one or two instances would be entitled to very little consideration, yet the effect of a long series of cases such as we have cited cannot be overlooked or disregarded. If these precedents have not definitely settled the right of, appeal in such cases, it is certain we cannot attribute to the expression falling obiter from the Court in the recent case of Mayor, &c. vs. Weatherby, 52 Md., 449, the effect of settling the law to the contrary. In fact so far as the weight of precedent and practice goes it is clearly in favor of the construction we have placed upon the statute, [475]*475and sustains the right to appeal from such orders. The motion to dismiss must therefore be overruled, and we must determine whether the bill is open to the objections presented b}1, the demurrers.
In view of what is said in the case of Dittman vs. Repp, 50 Md., 516, and in the authorities there referred to and adopted, wre think it very clear that the averments in this bill, in regard to the nuisance and injury complained of, are quite sufficient to warrant the granting of relief by injunction. The objection, however, mainly relied on is, that of multifariousness. The bill alleges that the “ said factory is conducted, controlled and operated by one Thomas G. Chappell, and by The Chappell Chemical and Fertilizer Company," and after averring the injury to the complainant’s property, resulting from the business thus conducted by the defendants, prays “that they may upon tlieir several and respective corporal oaths answer the premises, and that they may set forth and discover whether they or one of them, (and if one, which one,) do not conduct, control and operate a factory at the place hereinbefore mentioned, wherein vitriol, sulphuric acid, or sulphurous acid, or some of these products are made, and that they may be perpetually enjoined, restrained and prohibited from keeping up and maintaining the aforesaid factory, and from making vitriol, sulphuric and sulphurous acids, and other noxious and unwholesome products in the place where the said factory is situated, and that your orator may have such other and further relief as his case may require.”
Row the argument is, that the whole bill is to be taken together, that the discovery must be assumed to be applicable to the case intended to be made for relief, and when therefore the bill calls upon the defendants to disclose, “whether they or one of them, (and if one, which one,) do not conduct,” or operate the factory, it is plain that it contemplates a case where the wrong is done by one of the [476]*476defendants, and not by both jointly, and where the complainant, notwithstanding his previous allegation of joint control and misconduct by both defendants, confesses that he does not know whether it is not the control or misconduct of one only, and does not know and cannot say which of the two it is, or whether it is either; that taking thus the whole bill together, it presents the casé of a comr plainant, who believes himself injured by one of two parties, but does not know by which, and instead of making up his mind as to the wrong-doer, or suing both if he cannot, endeavors to unite them in an alternative proceeding, under the averment that while they are both guilty, he does not know whether either is, or if either, which; and that it cannot he competent for a complainant- who suspects one of two parties of doing him a wrong, to get over the legal difficulty of an alternative and fishing bill, by first charging the two with a joint wrong, and then requiring them both to discover whether one or the other is or is not guilty, and if yea, which, to the end that the suit may be prosecuted against the one who confesses, and dismissed as to the other. Such is the argument, and it is unquestionably true that the whole bill must be looked at, and the praying and charging parts read together, for the purpose of ascertaining with what view it was framed. Nor, if this bill be such as the appellants’ counsel have designated it, is there any doubt but that it is bad upon demurrer. We do not however regard it as open to such an objection. As we read it, the bill plainly charges that both of the defendants are conducting or carrying on the factory which creates the nuisance, and it asks for an injunction against both of them. It also prays that both of. them may upon their several and respective oaths, answer the premises. If it had stopped here, and the following special interrogatory had not been inserted, it would have been the duty of each of the defendants to answer the charge that he was conducting the factory [477]*477jointly with his co-defendant, fully by denial or admission ; for it is an elementary doctrine of equity pleading, that if a defendant submits to answer, his answer must be full and perfect to all the material allegations of the bill, and he must admit or deny all the facts stated in the hill, with all their material circumstances, without any special interrogatory for that purpose. Story’s Eq. Pl., sec. 852 ; Methodist Church vs. Jaques, 1 Johns. Ch. Rep., 65. In our opinion then, the mere unnecessary insertion of a special interrogatory, proper to he answered, and which the defendants were each hound to answer in answering the charging part of the bill, cannot have the effect to make the hill demurrable. If both admit the charge that they are jointly conducting the factory, it will not be necessary for the complainant to prove it, and if they deny it, then an issue will he made up, and the complainant will have to sustain the charge by proof. If one admits and the other denies participation in the conduct of the business, then it will only be incumbent on the complainant to prove the charge against the party denying it. In no event can the answer be binding upon the complainant. From these views, it follows that the order overruling the demurrers must he affirmed, and the cause remanded.
(Decided 19th January, 1882.)
Order affirmed, and cause remanded.