Fancher v. Ingraham
Fancher v. Ingraham
Opinion of the Court
This was a bill of revivor and supplement filed by the complainants as the heirs of Samuel Fancher, de
The defendants demurred to the bill. The demurrer was-sustained and the bill dismissed.
The bill in this case, being a compound of the two species of bills of revivor and of supplement, should be framed in its several parts according to the frame of those bills respectively. Mitf. Eq. Pl., 80. That part of this bill which seeks to revive the original suit, contains all that is necessary in such bill. It states who were the parties to the original bill, its object, the several proceedings thereon, and the abatement. It shows how the present plaintiffs become entitled to revive, and charges that the cause ought to be revived, and to stand in the same condition with respect to the parties in the bill of revivor, as it was in with respect to the parties in the original bill at the time the abatement happened. It prays that the suit may be accordingly revived, and that the defendants may answer. Cooper’s Eq. Pl., 70; Story’s Eq. Pl., 300; lb., 480, note 4. To this part of the bill, therefore, the demurrer was not well taken.
By the supplemental part of the bill, Ezra Bush is sough!
The rule is, that where a demurrer goes to the whole bill, it must be good as to all, or it is good for nothing. Mayor, &c. of London v. Levy, 8 Ves., 403; Earl of Suffolk v. Green et al., 1 Atk., 450; 2 Ib., 388; 5 Ves., 173. That is if there be any part of the bill sought to be covered by the demurrer to which it does not extend, the whole demurrer must be overruled. Higinbotham v. Burnet et al., 5 Johns. C. R., 184. This rule does not prevent a defendant from putting in separate demurrers to separate and distinct parts of a bill, for separate and distinct causes. Mitf. Eq. Pl., 214. That course, however, has not been pursued in the present case, but as before remarked, the demurrer is to the whole bill, and as there is a part of the bill to which the demurrer is not well taken, the whole should have been overruled.
Per Curiam.—The decree is reversed with costs. Cause remanded, &c.
Reference
- Full Case Name
- Fancher and Others v. Ingraham and Others
- Status
- Published