New York Court of Chancery, 1822

Clark v. Phelps

Clark v. Phelps
New York Court of Chancery · Decided August 1, 1822
6 Johns. Ch. 214; 1822 N.Y. LEXIS 179; 1822 N.Y. Misc. LEXIS 44

Counsel

S. Wood, for plaintiff., B. Johnson, for defendants.

Clark v. Phelps

Opinion of the Court

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. -

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