Page:Federal Reporter, 1st Series, Volume 2.djvu/27

 20 FEDEEAIi EEPORTBR. �beeause it does not point out with certainty the parts of the bill demurred to. �The rule, undoubtedly, is that a special demur/er to part of a bill must point out with eerfcainty the part demurred to. This is not only necessary for reasons of convenience, but, nnless the demurrer has this precision, there must be great uncertainty in the judgment, if a judgment is entered, sus- taining the demurrer. Atwell v. Terrett, 2 Bl. 0. C. 39. The defendant's counsel relies, however, on the case of Claridge V. Hoar, le Ves. Jr. 65, as an authority for rejecting the words "or elsewhere" as surplusage. That was not a case of a demurrer, but of a plea, and I think it hns no relevancy to this question. �It would seem that if the demurrrer is sustained it must be sustained as a whole. And if that is so the judgment would evidently be uncerfcain as to what parts of the bill under the judgment on the demurrer the defendant would be cxcused from answering. But as bo+ h parties have also fuUy argued this demux'rer on the merita, as if it were a demurrer to the discovery sought in the enumerated interrogatories only, I have examined it as if the words "or elsewhere" Jiad been omitted or could be rejected. �The bill alleges that the first mortgage bonds to which iliese interrogatories relate are void in the hands of the defendant, on several grounds ; and among other things alleged in re- spect to ail of that class of bonds held by this defendant it ia stated in the bill that thoy had not the certificate of the trustees to their genuineness, as required by the mortgage. This defect is alleged as one of the grounds for holding them void in the hands of the defendant, who is also alleged to hold them with notice of their invalidity, and without having parted with value for them. �The objection to these interrogatories is, as stated in f'o- fendant's brief, that "inasmuch as the bill only charges Macomb with holding uncertificated bonds, can the plaintiff have a discovery as to any other bonds?" It is also objected that the plaintiff is not entitled to any discovery as to any bonds not held by the defendant Macomb, The interrog; • ����