Clark v. Phelps

6 Johns. Ch. 214, 1822 N.Y. LEXIS 179, 1822 N.Y. Misc. LEXIS 44

Opinion

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. -