Page:Federal Reporter, 1st Series, Volume 6.djvu/192

 180 FBDBBAt. EEPOBTEB. �ants pray to have the Bame benefit of these facts as if they had been pleaded in bar. The plaintiffs except to the an- Bwer on the ground that this releaae, if given precisely as it is arorred to have been given, is insufficient in law to bar the plaintiffs' suit. �A substantive defence, not responsive to the plaintiffs' inquiry in bis bill, is not the subject of exception. That form of objection applies only to an insufficient discovery, or to scandai and impertinence. �The plaintiffs intende d by their exceptions to procure a hearing upon the validity of this defence as if it were a plea and they had set it down. But it is not a plea. It is part of the answer, and is merely one of several defences. By the thirty-ninth rule in equity a defendant may make a plea part of bis answer, and, if he does so, be shall not be compellable to answer more, or otherwise, than if he had oled a regular plea. The defendants have taken no advantage of this rule ; they have answered the whole bill fully ; and their request to have the same advantage as if they had pleaded the release, bas no meaning. As it stands, it is, as I have said, one sub- stantive defence not used by way of plea at ail, but by way of alternative answer. It stands precisely like the defence of the statute of limitations, which they also rely on in another part of their answer, and which they migbt have used by way of plea or demurrer. �Whether the court may not have power to hear such a de- fence before requiring the whole case to be gone into, is not now the question. There is no regular authorized mode of pleading, like a demurrer, to test the legal validity of part of an answer; but possibly, on motion, some order migbt be taken to dispose of part of a case in the first instance, if it should be found that groat delay and expense might thereby be avoided. I do not decide tba^ point. �Exceptions overruled. ��� �