filed to set aside a submission and award, the defendant may rely on the award in defense without pleading it.141 § 273. Plea of purchase for a valuable consideration. If the defendant has an equal claim to the protection of the court to defend his possession as the complainant has to the assistance of the court to assert his right, the court will not interfere on either side. This is true where the defendant claims under a purchase or mortgage for a valuable consideration without notice of the complainant's title, which he may plead in bar of the suit.142 Such a plea must aver seisin, or pretended seisin, and possession, if the conveyance purported an immediate transfer of possession at the time, by the person who conveyed or mortgaged to the defendant, when he executed the purchase or mortgage deed.143 It must aver a conveyance, the consideration therefor, and the actual payment of it,144 and deny notice of the complainant's title or claim previous to the execution of the deed and payment of the consideration.145 If particular instances of notice or circumstances of fraud are charged, they must be denied as specially and particularly as charged.146 Where the defendant answers in support of a plea of bona fide purchase, he should deny every allegation in the bill which, if admitted, could affect him with actual or constructive notice of the trusts and frauds charged in the bill; but if he have not personal knowledge of the facts, he should deny notice of the trusts and frauds, and not their existence, for the latter denial 141 Tyler v. Stephens, 7 Ga. 278. 142 Mitford, Eq. Pl. 274-281; Story, Eq. Pl. § 805; Payne v. Compton, 2 Younge & C. Exch. 457; Wood v. Mann, 1 Sumn. 506, Fed. Cas. No. 17,951. For consideration of plea of this nature, see United States v. California & Oregon Land Co., 148 U. S. 31. 143 Mitford, Eq. Pl. 275; 144 Mitford, Eq. Pl. 275; (Tenn.) 335; Tompkins v. 145 Mitford, Eq. Pl. 275; (Tenn.) 335; Woodruff v. Story, Eq. Pl. § 805. Story, Eq. Pl. § 805; High v. Batte, 10 Yerg. 3 Barb. Ch. (N. Y.) 408. The recital of such fact in the deed is insufficient. High v. Batte, 10 Yerg. (Tenn.) 335. 146 Mitford, Eq. Pl. 276; Story, Eq. Pl. § 806; Cooper, Eq. Pl. 283. would make unnecessary and collateral issues.147 The general denial, by a plea, of all notice whatsoever, includes constructive as well as actual notice.148 A plea of purchase for a valuable consideration will protect a defendant from giving any answer to a title set up by the complainant. A plea of bare title only, without setting forth any consideration, will not be sufficient for that purpose.149 Care must be taken in framing a plea of this nature not to make an answer to any statements in the bill actually and properly covered by the plea; for in such a case, if the defendant answers at all as to the matters covered by the plea, he must answer fully, and, if he puts in a general answer, he cannot protect himself in his answer from answering fully.1 Where a bill contains no averments as to the payment of bona fide consideration by the defendant, and the defendant pleads a bona fide purchase, and answers in support of his plea, his answer should not repeat the averments in the plea as to payment, as such an answer would not be responsive to the bill.151 $274. A plea of title in the defendant. 150 A mere volunteer may plead his title against a bill brought against him. This plea is generally founded on a will or conveyance, or on long, peaceable, and adverse possession. Thus, to a bill by an heir at law against a devisee, to secure posses 147 Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594. 148 Mitford, Eq. Pl. 276; Story, Eq. Pl. § 806; Pennington v. Beechey 2 Sim. & S. 282. 149 Story, Eq. Pl. § 809; Mitford, Eq. Pl. 279. 150 Story, Eq. Pl. § 810. 151 Tompkins v. Ward, 4 Sandf. Ch. (N. Y.) 594. Where a bill alleged that defendant took a conveyance of certain property as security merely, and that the loan for which it was given was usurious, and a defendant, by his plea, set up a full and absolute purchase, it was held that, to render the plea available as a defense, it must state distinctly that there was an unconditional sale, and not a security for a loan or debt, and, by general averment, meet the allegations of the bill that it was a security, and not a sale; and the accompanying answer must meet the allegations minutely, with precise and detailed statements, so as to be entirely free from liability to exceptions. Stuart v. Warren, 1 N. Y. Leg. Obs. 293. sion of land, the devisee may plead his title under the will. So, to a bill filed by an heir against a grantee of the ancestor, such grantee may plead in bar the conveyance.152 § 275. Plea of laches. It is held that, where the facts alleged in the bill disclose laches on the part of the complainant, the court will on that ground refuse relief on its own motion, even where the defense of laches is not pleaded.153 In such jurisdictions it is held that laches need not be formally set up by plea or answer, and that it is a defense which may be made by plea, or by demurrer, or by answer, or presented by argument, either upon the preliminary or final hearing.154 In other jurisdictions it is held that, to raise the question of laches, the defendant must plead the same, the reason assigned being that the complainant ought to have notice of the proposed defense, so that he may amend his bill by inserting allegations accounting for the delay.155 § 276. Pleas to amended bill. Pleas to amended bills may be put in upon the same grounds 152 Cooper, Eq. Pl. 288; Story, Eq. Pl. §§ 811, 812; Mitford, Eq. Pl. 263. 153 Richards v. Mackall, 124 U. S. 183; Sullivan v. Portland & K. R. Co., 94 U. S. 806; Leavenworth County Com'rs v. Chicago, R. I. & P. Ry. Co., 18 Fed. 209; Espy v. Comer, 76 Ala. 501; Haskell v. Bailey, 22 Conn. 569; Lakin v. Sierra Buttes Gold Min. Co., 25 Fed. 337. See post, § 300. 154 Woodmanse & Hewitt Mfg. Co. v. Williams, 37 U. S. App. 109, 68 Fed. 489; Pratt v. California Min. Co., 24 Fed. 869; McLaughlin v. People's Ry. Co., 21 Fed. 574; Richards v. Mackall, 124 U. S. 183; Badger v. Badger, 2 Wall. (U. S.) 87. 155 Simpson v. McPhail, 17 Ill. App. 499; Williams v. Rhodes, 81 Ill. 571; Dawson v. Vickery, 150 Ill. 398, 37 N. E. 910; Trustees of Schools v. Wright, 12 Ill. 432; Zeigler v. Hughes, 55 Ill. 288. In Illinois the court holds the rule that laches need not be pleaded to be applicable in a case where the complainant undertakes, in advance of the defense, by his bill, to excuse himself for the apparent laches. Hall v. Fullerton, 69 Ill. 448; Simpson v. McPhail, 17 Ill. App. 502; Williams v. Rhodes, 81 Ill. 571. In Massachusetts, if a demurrer on the ground of laches is overruled, the defense may be raised by answer. Snow v. Boston Blank-Book Mfg. Co., 153 Mass. 456, 26 N. E. 1116. as pleas to original bills.156 Where the complainant amends his bill, the defendant is entitled to amend his plea as to matter of substance in any way he pleases. 157 Where the objection of want of parties is raised again in consequence of the amendment of the bill, a second plea on that ground has been allowed.158 If the defendant has answered the original bill, his answer may be used to counter-plead his plea to the amended bill; and if, upon reading, it should appear that the facts stated upon the answer to the original bill would operate to avoid the defense made by the plea to the amended bill, the plea will be overruled.159 If the defendant answer the original bill, and the amendments do not vary the case made by it, he cannot plead to the amended bill.160 An amendment of the bill after answer does not sanction, on the part of defendant, by way of plea, an allegation of personal disability in the complainant as having existed at the commencement of the suit. The answer itself would overrule such a plea.' § 277. Time for filing plea. 161 The time for filing a plea is usually regulated by statute or rule of court.162 If a demurrer is overruled, and the defendant is ruled to answer, the defendant may thereupon file his plea to the bill.163 The filing of either a demurrer, plea, or answer is compliance with a rule to answer. 164 Under a rule to 1561 Daniell, Ch. Pl. & Pr. (4th Ed.) 680, 681; American Bible Soc. v. Hague, 10 Paige (N. Y.) 549. 157 Bassett v. Salisbury Mfg. Co., 43 N. H. 249. 158 Henley v. Stone, 4 Beav. 389. But see Rawlins v. Dalton, 3 Younge & C. Exch. 447. 159 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 681; Noel v. Ward, 1 Madd. 322; Hildyard v. Cressy, 3 Atk. 303. 160 Esdaile v. Molyneux, 2 Colly. 636. 161 Keene v. Wheatley, 4 Phila. 157, Fed. Cas. No. 7,644. 162 For rule in Illinois, see Rev. St. Ill. c. 22, § 16. 163 Dunn v. Keegin, 4 Ill. 292. 164 Bracken v. Kennedy, 4 Ill. 559; Dunn v. Keegin, 4 Ill. 292; Lambert v. Hyers, 27 Ill. App. 400; Kilgour v. Crawford, 51 Ill. 249. plead by a day fixed, it is sufficient to plead after the day so fixed, if it is done before default is asked.165 § 278. Withdrawing plea. A defendant, not desiring to argue a plea which has been set down for argument, may apply for leave to withdraw it.168 When a plea has been so informally pleaded that it would be difficult or impossible to amend it, the court has given the defendant leave to withdraw it and plead de novo.167 § 279. Replication to the plea. If the complainant, without argument, thinks the plea, though good in form and substance, not true in point of fact, he may take issue upon it by filing a replication, and proceed to examine witnesses, as in the case of an answer, to disprove the facts upon which it is endeavored to be supported.168 The replication admits the plea to be good, and its truth is the only matter in question. The defendant must prove the facts it sets up. If he succeeds in so doing, the suit, so far as the plea extends, is barred. A replication puts in issue nothing except what is dis 165 Lambert v. Hyers, 27 Ill. App. 400; Dunn v. Keegin, 4 Ill. 292. See Oliver v. Decatur, 4 Cranch, C. C. 458, Fed. Cas. No. 10,494. A defendant who has been required to plead by a particular day cannot file a plea after such date without special leave of court. Flanders v. Whittaker, 13 Ill. 707, said to be against weight of authority in Lambert v. Hyers, 27 Ill. App. 400; Kilgour v. Crawford, 51 Ill. 249. See Dunn v. Keegin, 4 Ill. 292, expressing doubt when the time expires in vacation. It is in the discretion of the court to allow the plea of the statute of limitations to be put in after an answer on the merits; but where no excuse is given for not having made it at the proper time, and where the facts must have been within the knowledge of the defendant when he made his answer, and the limitation prescribed by the statute is a short one, the court may refuse to allow such plea to be filed at that stage of the cause. Bartles v. Gibson, 17 Fed. 293. 166 1 Barbour, Ch. Pr. 120; Greene v. Harris, 11 R. I. 5. 107 1 Barbour, Ch. Pr. 120; Watkins v. Stone, 2 Sim. & S. 560; Nobkissen v. Hastings, 2 Ves. Jr. 84. 168 Mitford, Eq. Pl. 301; 1 Barbour, Ch. Pr. 27; Peay v. Duncan, 20 Ark. 85; Hughes v. Blake, 6 Wheat. (U. S.) 453; Reavis v. Reavis, 101 Fed. 19. |