The opinion of the court was delivered by
Powers, J.
The defendant, by a demurrer interposed into his answer, raises the question of the jurisdiction of the Court to entertain the bill. The propriety of this mode of pleading has been considered of late, and the effort has been to adhere to the rules of pleading laid down in the text books and best considered cases.
*93The respective functions of a demurrer and an answer are entirely distinct and one cannot take the place of the other. The answer serves the double purpose of pleading and evidence. So far as it sets up matter as a bar it is a pleading. So far as-it serves the complainant’s purpose by discovering ijacts, it is a deposition. If the defendant would waive making an answer, he may demur or plead. The object of a demurrer or plea, as a general rule, is to excuse the defendant 'from answering the bill on its merits. Both are dilatory pleadings, a demurrer being proper if the fault of the complainant’s case is apparent from the face of the bill, and a plea being proper if the fault must be shown by bringing matter dehors upon the record. Accordingly it has been generally said in the books that a party cannot demur or plead and answer the same matter, but he may demur to one part of the bill, plead to another and .answer to-another. If he answers to the same part that he demurs to, his answer will overrule his demurrer. The rule is the same at law. 1 Chit. Pl. 512. The reason for the rule is thus given by Gilbert, Forum Rom. 58, in speaking of dilatory defenses, “ all these pleas with us are to be put ante litem contestam, because they are pleas only why you should not answer, and therefore if you answer to anything to which you may plead, you overrule your plea, for your plea is only why you should not contest and answer, so that if you answer, your plea is waived.” This rule is laid down everywhere as expressive of the'true function of a demurrer or plea in its relation to the answer. Mitford (Tyler’s Ed.) 304, 305, 411, Beames’ Pl. in Eq. 37; Whaley v. Dawson, 2 Sch. & Lef. 371; Jones v. Earl of Strafford, 3 P. Wins. 81; Oliver v. Piate, 3 How. 412; Clark v. Phelps, 6 Johns. Chan 214; Wade v. Pulsifer, 54 Vt. 71.
Incorporating a demurrer into an answer is often done and no violation of the rule is occasioned if the demurrer is left for consideration as if it stood alone. In the old precedents instances may be found of demurrers and pleas incorporated-into answers, but in each case the answer was provisional, the plea ending with a demand for judgment, and then proceeding, “ and *94if this defendant shall by order of this honorable court be compelled to make any other answer to the said bill, etc., then and not otherwise the defendant saving, etc., answereth and saith,” going through the answer, as if no plea had been put in. The more modern practice, however, and the one sanctioned by Mitford and other standard writers, is to file each pleading by itself. But in all cases the demurrer should be brought to a hearing before the cause is tried on its merits. Wade v. Pulsifer, 54 Vt. and cases there cited.
In this case it is urged that a court of equity has no jurisdiction, as a court of law could give the orator an adequate remedy. This objection, if valid,is apparent upon the face of the bill and so is the subject of a demurrer, and if it be sustained the case is at an end. But an objection to the jurisdiction of the court, if the court has general jurisdiction of the subject matter, will not be entertained unless it is brought to a hearing before the expense of a trial upon the merits has been incurred. In 1 Dan. Chan. Prac. 579, it is said that if the objection to the jurisdiction is not taken seasonably by plea' or demurrer and the defendant enters into his defense at large, the court having the general jurisdiction will exercise it. To the same effect are the •cases Cong. Society v. Trustees, etc., 23 Pick. 148; Underhill v. Van Cortlandt, 2 Johns. Chan. 369; Bank of Bellows Falls v. R. & B. R. R. Co., 28 Vt. 470" court="Vt." date_filed="1856-02-15" href="https://app.midpage.ai/document/bank-of-bellows-falls-v-rutland--burlington-railroad-6575895?utm_source=webapp" opinion_id="6575895">28 Vt. 470. Indeed the rule in equity •appears to be the same as at law. A plea to the jurisdiction at law is said to be analagous to a plea in abatement and is the •earliest in the order of pleading, and if the general issue be pleaded the jurisdiction is confessed. So in equity it is a dilatory objection that is waived by an answer. In equity, as at law, if the court discovers that under no circumstances has it jurisdiction in the premises, it will, at any stage of the proceedings, dismiss the cause sua sponte, if no objection is raised.
In the case at bar a court of equity has jurisdiction. The sale of the colt to the orator with a lien reserved to the defendant amounted to a mortgage of the colt. The orator all the time had an equity of redemption and after condition broken *95might sustain a bill to redeem as was held by this court in Blodgett v. Blodgett, M. 48 Vt. The facts appearing from the master’s report show, that the question whether the defendant’s lien upon the colt had been extinguished by payment in full depended upon an accounting of the farm dealings. Courts of equity have concurrent jurisdiction with courts of law in all cases where the common Jaw action of account would lie, Fonblanque Eq. 1, 10; Cooper Tr. 26; Bispham Eq. 484; Ludlow v. Stenard, 2 Caine’s Cas. in Error 1; Leach v. Beattie, 33 Vt. 195" court="Vt." date_filed="1860-08-15" href="https://app.midpage.ai/document/leach-v-beattie-6577007?utm_source=webapp" opinion_id="6577007">33 Vt. 195, and in many other cases where the accounts are intricate and a discovery is demanded. In the action of trover brought by the defendant against the orator, no offset arising out of the farm dealings would be available to the orator, and unless he could make out full payment of the lien, he would be cast in the suit. But in equity on an accounting he can have applied all the indebtedness in his favor that he can establish, and if this is insufficient to extinguish the lien, the court can give him a day of redemption.
In taking the accounts of the parties, the master finds that items 42 and 43 in the defendant’s specification accrued from false representations of the defendant. These items should be disallowed, as in equity no one can be made a debtor by fraud.
The decree is reversed and the cause remanded with a mandate to enter a decree for th'e orator to recover the sum of $42.98 reported by the master, with interest thereon from March 1, 1884, and that the further prosecution of the suit at law in favor of the defendant against the orator mentioned in the pleadings be perpetually enjoined.