Majority
p. 214Clark against Phelps and others.
Headnote
A defendant cannot plead or answer, and demur both to the whole bill, or the same part of a bill.CASE submitted upon the bill and answer, and demurrer, on the points presented by the demurrer.
S. Wood, for plaintiff.
B. Johnson, for defendants.
The Chancellor said, that the answer and the demurrer each went to the whole bill; and it is a settled rule in pleading, that a defendant cannot plead or answer, and demur to the same matter; the former will overrule the latter. It is inconsistent for a defendant to say, he ought not to answer to a bill; and yet to answer it fully. The rule appears in all the books that treat on the subject. (3 P. Wms. 80, 81. 2 Atk. 284. Cooler’s Tr. of Pl. 113. Beames' Plead. 40.) The demurrer was consequently overruled, and^the question of costs reserved.
Order accordingly. -