Bedell v. Bedell

The Chancellor.

It is settled that the defendant cannot put in a demurrer to a bill without special leave, after he has obtained a chamber order from a vice chancellor giving time to answer. (Burrall v. Raineteaux, 2 Paige’s Rep. 331.) I am' not aware, however, that this principle has ever, been applied to the case of the extension of the time by the .voluntary stipulation of the complainant’s solicitor. Nor. is it .necessary that the principle should be thus applied. For the party, who agrees to extend the time, may always prevent the putting in of a demurrer after the time is thus extended, if he wishes to do so, by making it a part of the stipulation that the defendant shall not demur to the bill. And if the defendant, after applying for and accepting such a stipulation, for further time to answer merely, should put in a demurrer to the bill, it would be a matter of course for the court, upon a proper application for that p,impose, to order the demurrer to be taken off the files.

In the present case, the demurrer would be permitted to stand, although it was put in after the obtaining, a general stipulation, for further time to answer the bill, without, restriction, if it was not so manifestly frivolous. But as the demurrer is clearly frivolous, it was not only an abuse of the indulgence which had been granted to the.defendant, by the complainant’s solicitor, .in allowing him further time to answer the bill,, but it was also an abuse, of the practice of the court to put such a de murrer upon its files..

The motion to take .the demurrer from the files must therefore be granted, with ten dollars costs.