tinctly averred in the plea.169 The form of such replication is substantially the same as that to an answer, the word "plea" being substituted for "answer," and reference to the form of a replication to an answer is therefore made. § 280. Setting down plea for argument. As a general rule, no party can take a step in the cause until the plea is disposed of.170 If the complainant conceives a plea to be defective in point of form or of substance, he may take the judgment of the court upon its sufficiency by setting it down for argument. If the defendant is anxious to have the point determined, he may also take the same proceeding.1 The proper practice is to set the plea for hearing, instead of demurring to it.172 It is of great importance that the plea be 171 169 1 Barbour, Ch. Pr. 119; Harris v. Ingledew, 3 P. Wms. 95; Danels v. Taggart's Adm'r, 1 Gill & J. (Md.) 311; Ord v. Huddleston, 2 Dickens, 510; Fish v. Miller, 5 Paige (N. Y.) 26; Birdseye v. Heilner, 27 Fed. 289; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 251. For practice in federal courts, see United States Equity Rule 33; Jones v. Hillis, 100 Fed. 355. 170 Beach, Mod. Eq. Pr. § 324; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 691; Vaughan v. Welsh, Mos. 210; Ewing v. Blight, 3 Wall. Jr. 139, Fed. Cas. No. 4,570. 171 Mitford, Eq. Pl. 301; Story, Eq. Pl. § 697; Flagg v. Bonnel, 10 N. J. Eq. 82; Moreton v. Harrison, 1 Bland (Md.) 493; Newton v. Thayer, 17 Pick. (Mass.) 129; Suydam v. Johnson, 16 N. J. Eq. 112; Hannum v. McInturf, 6 Baxt. (Tenn.) 225; Corlies v. Corlies' Ex'rs, 23 N. J. Eq. 197; Reavis v. Reavis, 101 Fed. 19. For federal practice, see United States Equity Rule 38; Electrolibration Co. v. Jackson, 52 Fed. 773. 172 Cochran v. McDowell, 15 Ill. 10; Lester v. Stevens, 29 Ill. 155. For effect of demurring, see Klepper v. Powell, 6 Heisk. (Tenn.) 503; Zimmerman v. Sorelle, 49 U. S. App. 387, 80 Fed. 417. It has been said that, when a plea is set down for argument, the complainant cannot take any exception to its regularity or form. Foster, Fed. Pr. (3d) Ed.) § 140; Kellner v. Mutual Life Ins. Co. of New York, 43 Fed. 623. It is said that a plea which alleges matters proper to be brought forward by an answer only is not a pleading recognized by the rules of practice, and will be stricken from the files. But if the matters alleged are a proper subject of defense by way of plea, then such pleading, although not good in substance, is an authorized plea, and all objections to it must be taken by setting it down for argument. Armengaud v. Caudert, 27 Fed. 247. set down for hearing. Where issue is taken upon the plea, and the truth of such plea is established by the proofs, the bill must be dismissed, as the court, in that stage of the proceedings, does not inquire as to the sufficiency of the matters pleaded as a defense to the suit.173 Upon the argument of a plea, every fact stated therein which is well pleaded must be considered as admitted for the purpose of determining whether the plea constitutes a sufficient answer to the suit;174 and every fact stated in the bill and not denied by the averments in the plea and by the answer in support of the plea, must be taken as true.175 If the plea is supported by an answer, upon the argument of the plea the answer may be read to counter-prove the plea; and if the defendant appears to not have sufficiently supported his plea by his answer, the plea must be overruled, or ordered to stand for an answer. 176 Where a defendant, having answered the original bill, puts in a plea to the amended bill, the complainant may read the answer to the original bill, to counter-prove the plea.177 The proceedings upon the argument of a plea are near 173 Mitford, Eq. Pl. 302; 1 Barbour, Ch. Pr. 121; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Dows v. McMichael, 6 Paige (N. Y.) 139; Hughes v. Blake, 6 Wheat. (U. S.) 453; Hunt v. West Jersey Traction Co. (N. J. Eq.) 49 Atl. 434; Johnson v. Common Council of Dadeville, 27 Ala. 244, 28 So. 700; Tyson v. Decatur Land Co., 121 Ala. 414, 26 So. 507; Daniels v. Benedict, 97 Fed. 367. This is changed by United States Equity Rule 33. Pearce v. Rice, 142 U. S. 28; Elgin Wind Power & Pump Co. v. Nichols' Adm'rs, 24 U. S. App. 542, 65 Fed. 215. 1741 Barbour, Ch. Pr. 121; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; Mellus v. Thompson, 1 Cliff. 125, Fed. Cas. No. 9,405; Kellner v. Mutual Life Ins. Co. of New York, 43 Fed. 623; McCloskey v. Barr, 38 Fed. 165. The question whether there is any equity in the case on the face of the bill cannot be raised on the argument of a plea. Van Hook v. Whitlock, 3 Paige (N. Y.) 409. 175 1 Barbour, Ch. Pr. 120; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178; McCloskey v. Barr, 38 Fed. 165. 176 Hildyard v. Cressy, 3 Atk. 303; Bogardus v. Trinity Church, 4 Paige (N. Y.) 178. See 1 Barbour, Ch. Pr. 120. 1771 Barbour, Ch. Pr. 120; Hildyard v. Cressy, 3 Atk. 303. Where a record in bar to relief is pleaded, defendant may be required to show it before complainant traverses the plea or sets it down for argument In that case the whole plea depends upon the record, and the record can be definitely and readily shown. But this practice does not extend ly the same, mutatis mutandis, as those upon the argument of a demurrer.178 Counsel for the defendant are first heard, then counsel for the complainant, after which counsel for the defendant may reply.179 281. Allowing the plea. 181 If, upon argument, a plea is allowed, it is thereby determined to be a full bar to so much of the bill as it covers, if the matter pleaded with the averments necessary to support it be true.180 Thereupon, a complainant should file a replication to the plea.1 By failure to reply, not only the validity.of the plea as a bar is admitted, but also the truth of the plea, and consequently the suit is at an end.182 If a plea is replied to, the complainant may go into evidence to disprove it. If he has alleged in his bill any matter which, if true, may avoid the plea, such as fraud or notice, he may support such allegations by proof. Where the plea introduces matter of a negative nature, such as denial of notice or fraud, it will be necessary for him, in case sufficient is not admitted by the answer in support of the plea, to show the existence of such notice or fraud, to go into evidence in support of the affirmative of the proposition.183 Where a to the pleading of a judgment or decree in the bill. Phelps v. Elliott, 26 Fed. 881. Where a plea of a former suit pending is set down for argument, the only question for the court to determine is whether the plea is good in point of form. If the plea is decided good, then the complainant may reply, or may take a reference to a master to ascertain the fact upon which the plea rests. McEwen v. Broadhead, 11 N. J. Eq. 129; Rowley v. Williams, 5 Wis. 151. 178 1 Barbour, Ch. Pr. 120; Stead's Ex'rs v. Course, 4 Cranch (U. S.) 403. 179 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 694. 180 1 Barbour, Ch. Pr. 121; Bassett v. Salisbury Mfg. Co., 43 N. H. 253. 181 Hannum v. McInturf, 6 Baxt. (Tenn.) 225; Flagg v. Bonnel, 10 N. J. Eq. 82; United States v. Dalles Military Road Co., 140 U. S. 599; Wilson v. Mitchell (Fla.) 30 So. 703; Rouskulp v. Kershner, 49 Md. 516. 1821 Barbour, Ch. Pr. 121. 183 Eyre v. Dolphin, 2 Ball & B. 303; Saunders v. Leslie, 2 Ball & B. plea of a former suit pending is, on argument, decided to be good, the complainant may reply, if he desires; or he may take a reference to a master to ascertain the facts on which the plea rests.184 A plea allowed is considered as a full answer, and an injunction obtained until answer will be dissolved, upon application, as a matter of course.185 $ 282. Form of order allowing plea. [Title of court and cause.] The plea of the defendant, C. D., to the whole [or part] of the complainant's bill in this cause, coming on to be argued, and the solicitors for the respective parties having been heard thereupon, and the court, being fully advised in the premises, does hold the said plea to be good and sufficient, and It is ordered that the said plea do stand and be allowed. § 283. Saving benefit of plea to the hearing. If, upon the argument of a plea, the court considers that although, so far as then appears, the plea may be good, yet there may be matters disclosed in the evidence which, supposing the matter pleaded to be strictly true, would avoid it, the court may direct that the benefit of the plea shall be saved to the defendant at the hearing. 186 The effect of an order for this purpose is to give the complainant an opportunity of replying and going into evidence without overruling the plea.187 When such order 515. The usual course where the plea is allowed on argument, and consists of matter in pais, is to allow complainant to take issue on it, if he thinks it is untrue; but that course is not requisite where the matter of the plea was admitted in the bill, and consisted of matter of record, verified by the master's report. In such case no further inquiry is necessary. Holmes v. Remsen, 7 Johns. Ch. (N. Y.) 286. 184 McEwen v. Broadhead, 11 N. J. Eq. 129. 185 Philips v. Langhorn, 1 Dickens, 148. 186 Mitford, Eq. Pl. 303; Cooper, Eq. Pl. 233; 1 Barbour, Ch. Pr. 122; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 251; Heartt v. Corning, 3 Paige (N. Y.) 566; Bassett v. Salisbury Mfg. Co., 43 N. H. 249; Reavis v. Reavis, 101 Fed. 19. See Dobson v. Peck Bros. & Co., 103 Fed. 904; Chisholm v. Johnson, 84 Fed. 384. 187 Cooth v. Jackson, 6 Ves. 12; Hancock v. Carlton, 6 Gray (Mass.) 39; Astley v. Fountaine, Finch, 4. is made, such part of the bill as is covered by the plea is n $284. Ordering plea to stand for answer. Upon argument, a plea may be ordered to stand for an an swer. In such case it is determined that it contains matter which, if put in the form of an answer, would have constituted a valid defense to some material part of the matters to which it is pleaded as a bar, but that it is not a full defense to the whole matter which it professes to cover, or that it is informally pleaded, or is improperly offered as a defense by way of plea, or that it is not properly supported by answer.190 A plea setting up no valid defense to any part of the matter it professes to cover will not be permitted to stand for an answer. If a plea to the whole bill, unaccompanied by an answer, is allowed to stand for an answer without reserving to complainant the right to except, it is to be deemed a full answer, though not necessarily a perfect answer.191 Where a plea is ordered to stand for an answer with liberty to except, or is accompanied by an answer, which will enable the complainant to except without special leave, the master, upon a reference of exceptions, must decide as to the sufficiency of the answer, considering the plea as a part thereof.192 When it is not specified in the order that the complainant may except, he will not be allowed to do 60.193 1881 Barbour, Ch. Pr. 122. 189 Heartt v. Corning, 3 Paige (N. Y.) 566. 1.90 1 Barbour, Ch. Pr. 122; French v. Shotwell, 5 Johns. Ch. (N. Y.) 555; Beall v. Blake, 10 Ga. 449; Souzer v. De Meyer, 2 Paige (N. Y.) 574; Leacraft v. Demprey, 4 Paige (N. Y.) 124; Jarvis v. Palmer, 11 Paige (N. Y.) 650; Reavis v. Reavis, 101 Fed. 19; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 251; Bell v. Woodward, 42 N. H. 193. 191 Mitford, Eq. Pl. 303, 304; 1 Barbour, Ch. Pr. 122; Orcutt v. Orms, 3 Paige (N. Y.) 459. 192 1 Barbour, Ch. Pr. 122; Orcutt v. Orms, 3 Paige (N. Y.) 459. 1931 Barbour, Ch. Pr. 123; Sellon v. Lewen, 3 P. Wms. 239. See, on ordering plea to stand for answer, Story, Eq. Pl. § 699; Hildyard v. Cressy, 3 Atk. 303; Mitford, Eq. Pl. 303, 304; McCormick v. Chamber |