Von Glahn v. . DerossettVon Glahn v. . Derossett
In
Von Glahn
v.
Harris,
Accordingly this action is by Von Claim and the other creditors аgainst DeRossett, Kidder and others, who are all *293 of the stockholders known to рlaintiffs, with leave to make defendants auy other stockholders who may become known to the plaintiffs.
JDeRossett and the others defend by way of answer, except Kidder, wrho defends by way of demurrer.
The case now comes before us upon the demurrer of Kidder.
This is a novel mode of procеdure and we are not willing to allow the case to be split up in that way. The defendants are under a joint liability; their interest in the questions involved is identical and much obscurity and confusion will result from a severance in the mode of defenсe. When there is but one defendant he is not allowed to demur and also to аnswer; after the demurrer is overruled he can put in an answer but he cannot dеfend in both modes at the same time; that would be double pleading in a way not рrovided for by the statute of Anne.
Here we have several defendants whose liability is joint and whose interest in the question is identical. To allow a severance in the mode of defence would let in all of the inconveniences whiсh the rule of the common law in regard to practice, by which double plеading is not allowed; was intended to exclude. Eor illustration; If the demurrer of the dеfendant Kidder be disposed of, that will decide the-merits of the case, and thе defendants DeRossett and others will not have had an opportunity of being heard by counsel. If the demurrer should be overruled, the case will in effect be decided against them, and if it be sustained the ease will be dismissed as to Kidder and they will bе left, in an anomalous condition.
By the old equity practice, when the Court, is unwilling' tо sustain a plea and yet hesitates to overrule it absolutely a middle cоurse is adopted, the plea is overruled “reserving the equity until final hearing.” See Mitford’s Pleading. Pursuing this analogy, the demurrer will be overruled with *294 leave for the defendаnt to make the same defence by way of ■answer — the point not being now dеcided.
The second ground of demurrer is subject to another objection. It is “а speaking demurrer,” as styled by the books. That is, in order to sustain itself, the aid of a fаct not appearing upon the complaint is invoked, to-wit; the allegation that a.t the expiration of the charter, the Bank held a fund which should be first applied to the satisfaction of the debts of the plaintiffs. Whether there be any fund left on hand at the expiration of the charter of the Bank is a questiоn of fact that cannot be inquired into up>on demurrer, which raises only an issue of law in regard to the ■cause of action set out in the complaint.
Error. Demurrer overruled, reserving the equity of the •defendant.
Should this case extending now to 110 pages be brought np again we will not open the papers unless all of the ma- • terial pleadings are printed or unless there be “an index” to -the several pages.
The Court will say to the Clerks of the Superior Courts, "“instead of attaching all of the papers together, so as to make it “a labor” for the Justices to keep the “legаl cap” from '“folding!, up” &c. which provision was imported from the State of New York into our State, where fortunately there "has not been any use for it, we wоuld be better pleased if you endorse a file of ptapers “comрlaint and answer” ; another file, “evidence and charge of Judge”; another “judgment and appeal.”
In this way the members of the Court will be relieved from a lаbor that has got to be intolerable ; i. e. 123 pages ■of manuscript to decide a demurrer which is not conclusive upon the other defendants
Error.
PER CüRIAM. Judgment reversed.