Tallmadge v. Lovett , 3 Edw. Ch. 563 ( 1842 )

The Vice-Chancellor :

The demurrer is objectionable, inasmuch as it speaks of a matter of fact which does not appear in the bill, but is stated differently there. The bill states that the decree, which it asks to have reviewed and altered, ■ has not been enrolled, &c.; while the demurrer insists that it doth not appear in the body of the decree “ as the same is signed and enrolled and is of record in this court that there are or is any error or errors apparent in the said decree.”

Now, it may be that the decree, as enrolled, is different from the decree as pronounced and settled and certified in the first instance. It may have undergone some alteration or amendment before it became a matter of record ; and if such is the fact and if the defendant intends to rely upon the decree as signed and enrolled—when the bill refers to it as existing in paper before enrolment—the defendant should plead the decree as enrolled and then demur against the opening of the enrolment : Webb v. Pell, 3 Paige’s C. R. 370. He cannot have the benefit of the decree, as enrolled, upon a demurrer contrary to the fact asserted by the bill that the decree is not yet enrolled : for this gives to his pleading the character of a speaking demurrer and makes it assume the office of a plea—which is entirely inadmissible.

Another objection, very similar, is that the demurrer speaks of the want of an affidavit and of leave to file such bill of review. If the fact be so, the defendant should move the court to strike the bill from the files for irregularity; and so, likewise, if the bill be not such a bill as, by the order of the 9th of-July, 1840, the complainant had leave to file. He cannot take advantage of an irregularity in the filing or bringing of the bill on a demurrer suggesting matter of fact which does not otherwise appear. The bill alleges the leave of the court first had for the filing of it by an order of the ninth of July ; and the propriety of that order cannot be questioned on demurrer. If it was wrong, the defendant should have appealed from it.

I abstain from giving any opinion on the merits of the bill at present, because I consider the demurrer informal. It must be overruled, with costs—giving the defendant the usual time to put in an answer, wherein he is to be at liberty to claim the same benefit as though he had demurred (properly) or pleaded to the bill.