
    J. N. McElwee, Jr. vs. L. H. Massey and John Foster.
    
      Pleadings — Multifariousness—Amendment—Practice.
    Where a demurrer for multifariousness is sustained, the plaintiff may, if the demurrer goes only to part of the bill, leaving other parts untouched and maintainable against all the\ defendants, obtain leave to amend the bill by striking out the objectionable parts.
    Where the demurrer goes to the whole bill, the Court will sometimes withhold a decision upon the demurrer, and give the plaintiff leave to amend ; and may, it seems, give such leave, even after demurrer to the whole bill has been sustained.
    BEFORE DARGAN, OH., AT YORK,
    JUNE, 1858.
    Demurrer for multifariousness. The bill alleged that W. B. Dunlap, being indebted to the plaintiff and others, executed an assignment of his estate to the defendant, L. H. Massey, for the benefit of his creditors: that amongst the preferred debts were several stated to be due to the defendant, John Foster, on sealed notes — the plaintiff’s debt being in a lower class. The bill further alleged that the principal debt stated to be due to John Foster was pretensive and fraudulent, and that shortly before the execution of the assignment Dunlap made a bill of sale of four slaves to the said John Foster; that said bill of sale was also fraudulent and pretensive, and that Dunlap had left the State. The prayer was that the assignment to Massey be set aside as fraudulent and void, and the assigned estate distributed among all the creditors; that the principal debt stated to be due to John Foster be disregarded, and that the bill of sale to the said John Foster of four slaves be set aside and declared null and void and said slaves sold and the proceeds applied to the payment of the debts due by the said W. B. Dunlap.
    Plis Honor sustained the demurrer an.d ordered that the bill be dismissed.
    The plaintiff, appealed.
    
      Clawson, Smith, for appellant.
    
      Williams, contra.
   The opinion of the Court was delivered by

Dunkin, Ch.

The assignment of W. B. Dunlap to the defendant, L. H. Massey, does not purport to be a general assignment of his estate. The defendant, Massey, has, therefore, no concern in any way with the alleged fraudulent transfer of four slaves by Dunlap to John Foster, and, on that ground the bill was properly obnoxious to the charge of multifariousness. But for the other matters charged in the bill the same may be well maintained, as it appears to the Court, against both defendants ; as is stated by Mr. Mitford (Mitf. Pl. 254,) after a demurrer to the whole bill is allowed the bill is, out of Court; and to avoid this consequence, the. Court has sometimes, instead of deciding upon the demurrer, given the plaintiff liberty to amend his bill, paying the cost incurred by the defendant — and, in a note, cases are cited in which the Court, upon allowing a demurrer, have given the party leave to amend. But (he continues) where a demurrer leaves any part of the bill untouched, the whole may be amended notwithstanding the allowance of the demurrer.

In Story’s Equity PL § 532, a case is cited where a suit was brought against a corporation to establish eight charitable trhsts created by distinct instruments and different donors at different times, for charitable purposes generally similar in their nature; and no other corporation was interested in any of them but the last charity. It was held by the Court, upon a demurrer for multifariousness, that the bill was maintainable for the first seven charities; and that the bill might be amended by striking out the eighth charity, in which another corporation was interested.

The Court is of opinion that leave should have been given to the plaintiff to amend his bill by striking out all that part which relates to the alleged fraudulent transfer of four slaves by W. B. Dunlap to the defendant, John Foster, the plaintiff paying to the defendant, S. H. Massey, the costs on-the demurrer. It is now so ordered, and the decree of the Circuit Court, dismissing the plaintiffs’s bill, is reformed accordingly.

Johnston and Wardlaw, CC., concurred.

Decree modified,  