SALMON ». CLAGETT.—3 BLAND. 161

jury to him. The defendant alone bears the consequences of the
lame and ineffectual manner in which he puts forward his own
defence. Facts thus advanced in the answer, by way of avoid-
ance, operate, in many respects, as if they had been couched in
the form of a plea; but whether presented in the one form or the
other, they are never considered as evidence of any kind; because
the plaintiff had not, in an,\ manner, called for them. Hence, if
the plaintiffs puts in a general replication, the defendant must
prove them at the hearing, or the\ will be disregarded. Simson
v. Hart. 14 John. 74. Yet if the plaintiff' sets the case down to be
heard on bill and answer, or refuses to reply, then such allegations
must be received as true; nor because they constitute any part of
the answer called for by the bill; but, because the plaintiff by set-
ting the case down on bill and answer, or refusing to reply, has
precluded the defendant from proving them; and, therefore, by
that act he makes a tacit admission of their truth, and they are
accordingly received as admissions; Barker v. Wyld, 1 Vern. 140;
Grosvenor v. Cartwright, 2 Cha. Ca. 21; Wrottesley v. fiendish, 3
P. Will. 237, H; Wright v. Nutt, 3 Bro. C. C. 339: Beams' Orders,
180; Forum Horn. 45: Ektep v. Watkins, 1 Bland, 488; an infant
plaintiff, "however, can make no such admissions. Legard v. She/-
field, 2 Atk. 377.

* But, apart from those several grounds of defence, which
a defendant may set forth, and rely upon in the shape of a 142
demurrer, a plea, an answer responsive to the bill, or an answer
in negation or avoidance of it; there maybe found at the hearing a
substantial defence arising out of the whole case which has not, in
any manner, been specially advanced and relied upon by the defend-
ant in his pleadings. A defendant may, in his answer, rely upon
lapse of time as a defence against a stale claim. But even if he
does so, it will not avail him if the delay is accounted for; because,
in such case, although it may be a very old. it cannot be considered
as a stale claim. Clifton v. Haig, 4 Desaw. 341. If, however, the
claim should, in truth, be a stale one, and the defendant should
have been entirely silent, in his pleadings, as to lapse of time;
yet he may have the benefit of the presumption of satisfaction aris-
ing from the lapse of time at the hearing. Prince v. Heylin, 1 Atk.
494; Sturt v. Mellish, 2 Atk. 610; Roare v. Pecfc, 9 Cond. Cha. Rep.
165; Coleman v. Lyne, 4 Rand. 454; Prevost v. Grate, 6 Wheat. 498;
1 Mad. Chan. Pra. 99; The Attorney-General v. The Mayor of Exe-
ter, 4 Cond. Chan. Rep. 208. Consequently, this reliance upon an
unopposed presumption is a mode of defence, which shews itself
at the hearing, upon a consideration of the whole case, and not
from anything directly alleged by the defendant.

There are then, five modes of defence of which a defendant may
avail himself, according to the nature and exigencies of his ease; 1;
a demurrer; 2, a plea; 3, an answer, properly so called; 4, a nega-
11 3 B.