of the creditor, unaccompanied by positive acts of concurrence in the defalcation of the principal, furnishes no ground of equitable defence (Madden v. McMullen, 13 Ir. C. L. R. 305; and see Daniel v. M'Carthy, 7 Ir. C. L. R. 23). As to pleading an equitable defence for the purpose of avoid ng circuity of action, see Minshull v. Oakes, 2 H. & N. 793; Wood v. Copper Miners, 17 C. B. 561; and as to the nature of equitable replications, see note (b), post. Assuming that an equitable pleading is not open to objection on any of the grounds referred to, it will be an answer to the previous pleading, and the cases in which such pleadings have been pleaded are accordingly exceedingly numerous. Thus, on the principle that equity will relieve Mistake. the parties to a contract against the consequence of a mutual mistake, provided the mistake be a mistake of fact, or a mistake of fact and law (Midland Great Western Railway Co. of Ireland v. Johnson, 6 H. L. Cas. 798; Broughton v. Hutt, 3 De G. & J. 501), if the plaintiff or defendant rely upon a written instrument as furnishing a ground of action or defence, an equitable defence or replication, showing that the instrument was executed under a mutual mistake, such as that mentioned, will be good, except in cases where the Court of Equity would require the instrument to be rectified, as a condition precedent to restraining the action (Vorley v. Barrett, 1 C. B. N. S. 225; Steele v. Haddock, 10 Ex. 643; Luce v. Izod, 1 H. & N. 245; Borrowman v. Rossell, 16 C. B. N. S. 58; and the principle applies to contracts executory as well as executed (Kane v. Dublin & Wicklow Rly. Co., 3 Ir. Jur. N. S. 160). An equitable plea, therefore, alleging that the defendant by mistake executed a charter party, so as to render himself personally liable, whereas the real agreement was that he was to execute it merely as the agent of a third party, has been held to be good (Wake v. Harrop, 1 H. & C. 202; and see Burgoyne v. Cottrell, 24 L. J. Q. B. 28). If, however, under the circumstances, a Court of Equity would require the instrument to be reformed, as a condition precedent to granting relief, the plea or replication will be bad (McGillicuddy v. Gallwey, Ir. R. 2 C. L. 237; Solvency Guarantee Co. v. Freeman, 7 H. & N. 17; Perez v. Oleaga, 11 Ex. 506). A replication on equitable grounds that a release by deed was executed in mistake as to its legal effect, was held to be bad for the same reason (Read v. Johnson, 25 L. J. Ex. 110). As appears, however, from the cases above referred to, it is frequently unnecessary that the instrument should be reformed, and where no object would be served by so doing, the equitable defence will be good (Steele v. Haddock, 10 Ex. 643; Luce v. Izod, H. & N. 245). In Lyall v. Edwards, 6 II. & N. 337, a replication to a plea of release, that the release was worded by mistake so to include the cause of action sued on, was held to be good. tion. An equitable defence, relying on a parol contemporaneous variation of a Parol written contract, was held to be good in Rogers v. Hadley, 2 H. & C. 227. contemporaWhere, to an action by drawer against acceptor of a bill of exchange, at neous variathree months, the defendant pleaded that the plaintiff represented to him that the bill was drawn as of a later date than the date it really bore, and that three months from the later date had not elapsed, the Court set the plea aside (Drain v. Harvey, 17 C. B. 257; and see Borrowman v. Rossell, 16 C. B. N. S. 58. In Wood v. Dwarris, 11 Ex. 493, an equitable replication asserting that the plaintiff effected a life policy upon the faith of a prospectus published by the insurer, that all policies should be indisputable, except in case of fraud, was held to be good. See, however, as to this case Wheelton Waiver. Acquiescence or false representations." Fraud. Principal and surety. Equitable ownership. v. Hardisty, 8 E. & B. 232; and in Reis v. Scottish Equitable Assurance Co., 2 H. & N. 19, the defendants having pleaded that the party assured travelled beyond Europe, contrary to the terms of the policy, the Court refused to allow the plaintiff to reply on equitable grounds, that the policy was made upon the express agreement that the assured might go out of Europe without vitiating the policy. As to pleading a waiver of one of the terms of a contract, see Fitzgerald v. McCullough, 7 Ir. C. L. R. 457; Thames Ironworks Co. v. Royal Mail Steam Packet Co., 13 C. B. N. S. 358. An equitable defence relying upon the acquiescence or representations, or standing by of the plaintiff, while the defendant was doing the acts complained of, or that he is acting contrary to good faith or agreement, may also be pleaded in a proper case. Thus, to an action for obstructing the plaintiff's lights, and depriving him of support to his buildings, an equitable plea that the grievances complained of were occasioned by his pulling down a house and erecting another in its place, which he did with the acquiescence and consent of the plaintiff, and on the faith of such acquiescence and consent he incurred expense, is a good equitable plea (Davies v. Marshall, 10 C. B. N. S. 697), with which case compare Smith v. Hayes, Ir. R. 1 C. L. 333, where to an action for an injury to a watercourse, an equitable defence, relying upon particular acts of acquiescence, was held to be bad upon demurrer; and see, also, Billing v. East India Co., 31 L. J. Ex. 240; Somerville v. Sheals, 8 Ir. C. L. R. Ap. 65; Bill v. Richards, 2 H. & N. 311; De Rosaz v. Anglo-Italian Bank, L. R. 5 Q. B. 462; and as to the general principles of equity applicable to cases of acquiescence, see Ramsden v. Dyson, L. R. 1 H. L. 129; Clarke v. Hart, 6 H. L. Cas. 633, 655. So also an equitable defence or replication of fraud may be pleaded (Davies v. Marshall, ubi supra), and for an instance of an equitable defence relying upon a fraud upon marital rights (held, however, to be bad) see Lee v. Hayes, 17 Ir. C. L. R. 394. In Bristow v. Brown, 13 Ir. C. L. R. 201, an equitable defence relying upon a false representation not alleged to have been fraudulent was held to be good, and see for other instances of such defences, Gorsuch v. Cree, 8 C. B., N. S., 574, Drain v. Harvey, 17 C. B. 257. A party to a written instrument cannot allege at law, that he executed it as a surety when it does not appear from the written instrument that he executed in that capacity. In equity, however, it is otherwise (Story's Eq Jur. 8th ed. vol. ii. p. 71); and accordingly equitable defences have been held to be good which allege that the defendant executed a promissory note or other instrument as a surety, and which then show matter of discharge by the giving of time or otherwise (Pooley v. Harradine, 7 E. & B. 431; Murphy v. Glass, L. R. 2 P. C. 408; Strong v. Foster, 17 C. B. 201; Greenough v. M'Lellan, 30 L. J. Q. B. 15; Gordon v. Rae, 8 E. & B. 1065); and see Bristow v. Brown, 13 Ir. C. L. R. 201, Watts v. ShuttleNorth, 29 L. J. Ex. 229. An equitable defence relying upon an equitable ownership, in actions of trespass, &c., will be good. Thus in an action of trespass qu. cl. fr. brought by a husband, an equitable plea, alleging that the land was settled to the separate use of the wife, whose lessee the defendant was, was held to be good (Allen v. Walker, L. R. 5 Ex. 187); and reference may also be had to Drake v. Fywell, 4 H. & C. 78; Somerville v. Sheals, 8 Ir. C. L. R. Ap. 65, where under the circumstances defences of a similar character were held to be bad; and see Wakley v. Froggatt, 2 H. & C. 669, in which case a defence relying upon an equitable right to enter and cut down timber was held to be bad, upon the ground that a Court of Equity would not grant an unconditional injunction to restrain the action. Where in an action by one tenant in common against the other for not accounting, the defendant pleaded setting up a title under a conveyance by way of mortgage, an equitable replication that the mortgage debt had been paid off, was not allowed, because the Court could not compel a reconveyance (Gorely v. Gorely, 1 H. &. N. 144). Where an action was brought by a husband to recover money which had been settled to the separate use of his wife, but paid to the defendant by her order, a plea that the money was assigned to the defendant by the wife, upon trusts, under which the defendant took no interest, was held to be a good defence (Sloper v. Cottrell, 26 L. J. Q. B. 7). Action brought in fraud of equitable Where to a declaration for money awarded, the defendant pleaded on equitable grounds, that the plaintiff had assigned away the debt, and was suing in fraud of the assignment the plea was held to be good (Jeffs v. Day, L. R. 1 Q. B. 373), with which compare Sainthill v. Evanson, 7 Ir. right. C. L. R. 540. Equitable defences of set-off have been frequently pleaded. The mere Set-off. existence of cross demands does not, however, enable the defendant to plead such a defence. Thus, a plea on equitable grounds to an action for freight, that the plaintiff, in the course of carrying the goods, had negligently damaged them to an amount equal to his claim for freight, was held to be bad on demurrer (Stinson v. Hall, 1 H. & N. 831). An equitable defence, however, that the plaintiff (a mortgagee) has paid himself out of the proceeds of property sold under a power of sale is good (Marcon v. Bloxan, 11 Ex. 586); and as a general rule, it would appear that, independently of the statutes of set-off, Courts of Equity, in virtue of their general jurisdiction, may grant relief in all cases where, although there are mutual and independent debts, yet there is a mutual credit between the parties, founded at the time upon the existence of some debts due by the crediting party to the other;by mutual credit, it being understood that there is a knowledge on both sides of an existing debt due to one party, and a credit by the other party, founded on, and trusting to such debt, as a means of discharging it (Story's Eq. Jur. 8th ed., vol. 2, p. 658). Thus, in Tully v. Rouch, 10 Ir. C. L. R. Ap. 21, an equitable defence to an action for mesne rates that the defendant had laid out money in repairs, under an agreement that he should be allowed it in the rent, was held to be good; and see also Toole v. Ryder, Ir. R. 2 C. L. 654; Denniston v. Digan, to Ir. C. L. R. Ap. 7; Daniel v. M'Carthy, 7 Ir. C. L. R. 23; Atterbury v. Jarvie, 2 H. & N. 114. The mere fact that there is a third party interested in the accounts, and who is not before the Court, as where a surety pleads a set-off between the creditor and the principal affecting the subject matter of the demand, is not per se a fatal objection to the defence (Murphy v. Glass, L. R. 2 P. C. 408). In addition to the cases of set-off referred to above, an equitable defence, showing the exister c of a debt, whether legal or equitable, due by the real plaintiff to the defendant, may be pleaded (Cochrane v. Green, C. B. N. S. 448; Colles v. Prendergast, 10 Ir. C. L. R. 336); and see, as to the principles of equity applicable to such cases, Cavendish v. Greaves, 24 Beav. 163; Watson v. Equitable estoppel. Ejectment. Mid-Wales Railway Co., L. R. 2 C. P. 593; Dickson v. Swansea Vale Railway Co., L. R. 4 Q. B. 44. A plea on equitable grounds to the effect that the causes of action in the declaration had been finally adjudicated upon by a decree in Chancery, was held bad on demurrer, because the defendant did not show an equity to an unconditional injunction (Phelps v. Prothero, 16 C. B. 370; Beere ▾. Fleming, 13 Ir. C. L. R. 506); and see further as to the effect of proceedings in equity upon proceedings at law, Collins v. Cave, 27 L. J. Ex. 146; Schlumberger v. Lister, 29 L. J. Q. B. 157; and sec. 189 of the C. L. P. Act, 1853, ante, p. 213. An equitable plea of the pendency of an arbitration has been held to be bad (Wood v. Copper Miners, 17 C. B. 561). So also has a plea that the defendant has been adjudicated a bankrupt, and that the plaintiff has proved under the bankruptcy (Spencer v. Demett, L. R. 1 Ex. 123); and see Elder v. Beaumont, 8 El. & Bl. 353. According to the practice in England, an equitable plea cannot be pleaded in an action of ejectment (Neave v. Avery, 16 C. B. 328). In this country, however, such a defence may be pleaded, either alone or in addition to the usual statutory defence ( Turner v. M'Auley, 6 Ir. C. L. R. 245); but where the matter of defence relied upon is an agreement for a lease, the defence will be bad, upon the ground that the relief in equity would not be unconditional, as the defendant would be required, as a condition precedent to the granting of an injunction, to execute a lease and pay all arrears of rent due, and a Court of Common Law has no power, in an action of ejectment, of adjusting the rights of the parties (Turner v. M'Auley, 6 Ir. C. L. R. 248; Deering v. Lawler, 7 Ir. C. L. R. 333). Neither can the defendant rely upon a lease granted in excess of a leasing power, but operating in equity under the 12th and 13th Vict. c. 26, s. 2, as a contract for the grant of a valid lease (Deering v. Lawler, ubi supra; Carpenter v. Larkin, 5 Ir. Jur. N. S. 174). Although, however, an agreement for a lease cannot be pleaded by way of equitable defence, a defence averring that the defendant was a tenant from year to year, and that the plaintiff for good consideration promised not to terminate the yearly tenancy by notice to quit or otherwise, but that in all other respects the defendant should hold as tenant from year to year, and that no lease should be executed, has been held to be so far good, that the Court refused to set it aside on motion (Clarke v. Reilly, Ir. R. 2 C. L. 422). As to pleading, in an action of ejectment brought by a mortgagee, that the mortgage has been paid off, see Considine v. Tubbledy, 2 Ir. Jur. N. S. 188; Gorely v. Gorely, 1 H. & N. 144. In Maloney v. Lindsay, 2 Ir. Jur. N. S. 332, an equitable defence, which averred that the Reduction of defendant held the lands under an agreement that he should remain in until repaid a sum of £100 by the plaintiff, which sum had not been repaid, was allowed to be pleaded. As to pleading a reduction of the rent reserved in a lease, see Blake v. Hanly, 7 Ir. Jur. N. S. 238. rent. May be supported on legal grounds. An equitable defence cannot be pleaded in answer to a claim for a writ of injunction under sec. 81, ante, p. 347 (Booth v. Taylor, L. R. 1 Ex. 51). When a defence is expressly pleaded upon equitable grounds, it may be supported upon legal grounds (Lee v. Hayes, 17 Ir. C. L. R. 394; Hyde v. Graham, 1 H. & C. 593). An equitable pleading renders all the subsequent pleadings equitable (Savin v. Hoylake Railway Co., L. R. 1 Ex. 9). A party will not be allowed to plead on equitable grounds facts which he has pending the action set up in a Court of Equity as entitling him to relief, in a proceeding instituted there with reference to the subject matter of the action (Schlumberger v. Lister, 2 El. & El. 855). Where a defendant pleads at law equity will not interfere by injunction to restrain the action, on the grounds relied on by the plea, when the Court of Law can give the same relief as a Court of Equity (Waterlow v. Bacon, L. R. 2 Eq. 514; Evans v. Bremridge, 6 D. M. & G. 100). But when a defendant has an equitable defence he is not compelled to plead it, but may proceed in equity to restrain the action (Kingsford v. Swinford, 28 L. J. Ch. 413; Gompertz v. Pooley, 4 Drew, 448; Evans v. Bremridge, 2 Kay & J. 174, affirmed on appeal, 8 D. M. & G. 100). As to the course to be adopted by a party who objects to the validity of an equitable defence, see sect. 88, post. defence after c. 125, s. 84. 86. Any such matter which, if it arose before or during Equitable the time for pleading, would be an answer to the action if judgment. 17 pleaded, may if it arise after the lapse of the period during 18 Vict which it could be pleaded, be set up by way of auditâ querelâ, or in such other manner as the Judges inay by any general rules or orders direct. 87. It shall be lawful for the Court or a Judge to permit any of the parties to reply in answer to any pleading of the opposite party facts which avoid such pleading upon equitable grounds, provided that such reply shall begin with the words "for replication on equitable grounds," or words to the like effect (b). (b) As before mentioned, when an equitable defence is pleaded, the subsequent pleadings are to be treated as equitable, ante, p. 354. As to equitable rejoinders, see Wodehouse v. Farebrother, 1 Jur. N. S. 998, 999, n. Equitable replication. 17 & 15 Vict. 125, s. 85. Must not show right of action to be equitable merely. As regards the principles applicable to equitable replications they are in Equitable general the same as those which apply to equitable defences, as to which see replication. ante, p. 350, note (a), where also, several of the cases in which equitable replications have been pleaded will be found referred to. In addition, however, to the principles applicable to equitable pleadings in general, equitable replications are subject to this special rule, that they must not disclose facts inconsistent with the legal right relied on in the declaration or summons and plaint. In other words they must show that the plaintiff's right is legal in its nature, and not merely a right to file a bill in equity. Thus, although an infant or married woman by representing themselves to be of full age or discovert, respectively, may render themselves liable in equity to a performance of their contracts (Exparte King, 1 De G. & J. B. Ap. 243, Vaughan v. Vanderstegen 2 Drew, 165, 369), yet, a plaintiff at law cannot, in answer to a plea of infancy or coverture, reply on equitable grounds a fraudulent representation so made (De Roo v. Foster, 12 C. B, N. S. 272; Bartlett v. Wells, 1 B. & S. 836). So, also, a fraudulent concealment of a cause of action cannot be pleaded in reply to a plea of the Statute of Limitations (Hun- Limitations ter v. Gibbons, 1 H. & N. 459; and see Imperial Gas Co. v. London Gas Co., pleaded. 10 Ex. 39; Supple v. Canu 9 Ir. C. L. R. 1.) Where in answer to a plea of the Statute of Limitations pleaded by an executor, the plaintiff replied on equitable grounds that the testator had bequeathed sufficient money to the Where Statute |