Opinion,
The demurrer in this case goes for nothing. It is overruled by the answer. The defendant demurred to the. whole bill and at the same time answered the whole bill. This is not allowable under the rules of equity pleading. They cannot stand together.
A defendant in equity is permitted by the rules to plead or demur to the whole bill or to part of it, and he may demur to part, plead to another part, and answer as to the residue: See Equity Rules, § 31. But he may not plead or answer, and demur also, to the whole bill or to the same part of the bill. If he demur to part and answer to the same part, both cannot stand. The demurrer in such case is overruled by the answer. With much more reason is this the case when there is a demurrer to the whole and an answer to the whole. This rule of equity pleading is so well settled that no argument is necessary. It is sufficient to refer to 1 Daniel Chan. Pr., 660; Mitford Eq. PL, 209; Story’s Eq. PL, § 442.
The decree is reversed at the costs of the appellee ; the demurrer is overruled; the bill reinstated with directions to the court below to proceed therewith according to the practice in equity.