Page:Federal Reporter, 1st Series, Volume 9.djvu/362

IDAUS iy. HOWABD. 347 �Adams and another ». Howard and another. �(Circuit Court, S. D. New 7<yrk. October 24, 1881.) �1. Pleadino — Answbr— Demubrbr. �By putting in an answer to the whole bill, a defendant OTerrules hia demur- rer which is also to the whole bill. �F. H, Betts, for plaintiffs. �J, A. Whitney, for defendants. �Blatchfokd, C. J. The defendant Morse bas demurred to the whole bill and bas put in an answer to the whole bill. The suit is one for the infringement of a patent. The grounds of demurrer set forth in the demurrer are all of them also set forth in the answer. They relate solely to the title set forth in the bill to the patent, and to the allegations in the bill respecting infringement. A replication to the answer bas been filed. The plaintiffs now move for an order, either that the defendant elect between bis demurrer and bis answer, or that the demurrer be set down for argument. By rule 32 in equity, a defendant may demur to the whole bill, and may demur to a part of the bill and answer as to the residue. But there is nothing that allows bim to demur to the \*rbole bill and at the same time to answer to the whole bill, especially wbere the answer sets up every- thing that is in the demurrer. Putting in sueh an answer is a waiver of Buch a demurrer. The defendant must elect between bis demurrer and bis answer; and, to guard against naisunderstanding, if he should elect bis demurrer, and it should be overruled on argument, he would be beld, probably, to have waived wbat, ordinarily and otherwise, would be, under rule 34, bis right to answer. �The defendant moves to dismiss the bill. The ground of the mo- tion is not specified in the notice of motion. Prom the afiSdavit made in support of the motion, one ground would seem to be that the plaintiffs did not, under rule 38, set down the demurrer for argu- ment within the time required, and that they did not take any testi- mony within three months after the replication was filed. I think the plaintiffs sufficiently excuse the omissions. The demurrer ougbt to be disposed of before any testimony is taken. �The motion is denied. ��� �