Weston v. Blake

61 Me. 452

• Court: Supreme Judicial Court of Maine
• Decided: July 1, 1873
• Status: Published

Opinion

W ALTON, J.

This is a bill in equity to which the defendants have severally demurred. In support of the demurrer several grounds are relied on.

1. It is said that there is a want of proper parties. Several distinct contracts are set out in the bill, and with respect to some of these there is an apparent want of proper parties, but with respect to others no such defect is apparent. In such a case a general demurrer to the whole bill cannot be sustained. To sustain such a demurrer it must appear that there is no part of the bill which ought to be answered. The rule is substantially the same as in actions at law. If a writ contains good counts and bad counts a general demurrer to tbe whole declaration cannot be sustained. The defendant should plead to the good counts and demur only to the bad ones. So in equity. If the bill is good in part and bad in part the defendant should answer that which is good and demur only to that which is bad. If he demurs to the whole bill his demurrer cannot be sustained. In this case it is clear that the demurrers are too broad. If the defective portions of the bill — we mean those portions- with respect to which there is an apparent want of proper parties — were all stricken out, enough would still remain to call for an answer. The demurrers cannot, therefore, be sustained on the ground of the want of proper parties.

2. It is said that the bill is multifarious. We think not. A bill is multifarious only when separate and distinct causes of relief are joined which ought not to be joined. This seldom happens; hence the objection that a bill is multifarious is not often sustained. We think there is no such misjoinder in this bill. On the contrary, we think the defendants might well have complained if each distinct contract mentioned in the bill had been made the ground of a separate suit. The demurrers are not sustained, therefore, on the ground^that the bill is multifarious.

3. It is said that there is a want of equity — that is, assuming that all the allegations in the plaintiff’s bill are true, they do not make out a prima facie case for relief. Among other grounds taken in support of this objection it is said that there is no averment of a tender of the amount due the defendant, Blake. The time has not arrived for discussing the merits of the case. It is enough to say that in the opinion of the court the bill contains matter which ought to be answered.

Our conclusion, therefore, is that the demurrers must be overruled and that the defendants must answer further.

Demurrers overruled.

Defendants to answer further.

AppletoN, C. J.; CutttNG, Diceerson, and Dakforth, JJ., concurred.