Where the answrer of the defendant is accompanied by a plea or demurrer to any part of the discovery sought by the bill, the complainant cannot except immediately to such answer, unless he means to admit the validity of the plea or demurrer j but must wait until the plea or demurrer has been argued and disposed of, and then file his exceptions both for insufficiency and for impertinence. (Mitf. Pl. 299. 2 Dan. Ch. Pr. 220, 301, and Rule 53.) Where a plea or demurrer, which is accompanied by an answer to any part of the bill, is overruled, the complainant, instead of taking an order for a further answer, as directed by the 49th rule of this court, should take an order overruling the demurrer, with costs, merely. Under such an order he may, at any time within twenty days, file exceptions to the answer already put in, either for insufficiency or for impertinence, or both ; so as to obtain a full and proper answer to the whole bill. And if he does not except within twenty days, or within such *224further time as may be allowed by the court for that purpose, the answer before put in will be deemed sufficient. But if exceptions are filed, they must be submitted to or be referred within the same time and in the same manner as exceptions to an ordinary answer. The same course of proceeding, substantially, is to be adopted for the purpose of getting a full and pertinent answer to the part of the bill not covered by the plea, or demurrer, where such plea or demurrer has been allowed upon argument thereof.
There could not, therefore, have been any doubt as to the regularity of any of the exceptions in the present case, if the complainant had not inserted in his order of the 29th of July, 1840, the clause expressly authorizing him to except “ if he wished to obtain a further answer to the part of the bill which was attempted to be covered by the demurrer.” But as it is, I think the vice chancellor erred in supposing this express reservation of liberty to except deprived him of the right which he would have had in case no such reservation had been contained in the order. The extent of the restriction which could be legitimately implied from this clause of the order was that he should not except to the answer, either for insufficiency or impertinence, unless some of his exceptions related to the matters attempted to be covered by the demurrer.
The order appealed from must therefore be reversed, with costs; and the motion of the respondent to strike out the exceptions must also be denied, with costs.