
    George F. Bragg v. Leverett Whitcomb and Horace V. Whitcomb.
    Where a defendant both answers and demurs to different parts of the bill, and the demurrer is overruled, complainant, to obtain a further answer, must except, under the thirty-fourth rule of the Court, to the answer already put in by defendant, within twenty days after the demurrer is overruled.
    This was a motion to set aside an order taking the bill as confessed.
    Defendants had severally answered to a part, and demurred to a part of the'bill; and, at the last term, the demurrers were overruled without argument, when the following order was entered:
    “ The demtirrer filed in this eause to the bill of complaint coming on to be heard, and having been -duly argued by Counsel for respective parties, it is now here ordered by the Court, that said demurrer be, and the same is hereby overruled with costs to the plaintiff, with leave to the defendants to answer, and serve a copy upon complainant in forty days, on payment of the costs to be taxed.”
    Neither of the defendants having put in a further answer within the forty days, an order was entered taking the bill as confessed against both defendants, which it was moved to set aside.
    J. F. Joy, in support of the motion.
    
      E. C. Seaman, contra.
   The Chancellor.

The complainant, if he wished a further answer from either of the defendants, after the demurrers were overruled, should have excepted to the answer already put in by such defendant, within twenty days after the demurrer was overruled, under the thirty-fourth rule of the Court. The thirty-third rule is applicable to that class of cases only, where the plea or demurrer, or pleas or demurrers, (for there may be several pleas or demurrers to different parts of the bill,) extend to the whole of the bill; and not where the defendant both answers and pleads, or answers and demurs, and the plea or demurrer is overruled. Kuypers v. The Reformed Dutch Church, 6 Paige R. 570.

The order overruling the demurrers should have used the word demurrers instead of demurrer, as each of the defendants had put in a separate demurrer; and it should not have required the defendants to answer, and serve a copy of their answer, in forty days. The order should have been that the demurrers be overruled with costs, and nothing more. To correct the error in drawing up the former order, let an order be now entered, overruling the demurrers, with costs, and setting aside the order taking the bill as confessed.  