LACHES.

I. RAISED BY ANSWER, 1.

II. RAISED BY DEMURRER, 7.

CROSS-REFERENCES.

For Form of Demurrer to Bill on Ground of Laches, see the title DEMURRERS, vol. 6, Form No. 7114. See also the title STATUTE OF LIMITATIONS, and the GENERAL INDEX to this work.

I. RAISED BY ANSWER.1

Form No. 12554.1

Providence, Sc.

Supreme Court, Appellate Division.

William Warren
against

Equity No. 4002.

The Providence Tool Company et als.

The answer of William M. Bailey, one of the respondents to the bill of William Warren, complainant.

(After confessing some allegations in the bill and denying some allega

was raised by the lottery, and showed many receipts for moneys expended on the roads. They suggested that the impression that a balance was due from their intestate had grown out of an account on the books of Isaac Caruthers & Co., of which their intestate William was a partner; which account they exhibited, and denied that it afforded any evidence of the indebtedness of their intestate to the lottery. And they objected, that they could not justly and ought not to be called to account at this late day, when all the persons acquainted with the transactions were dead, and it was therefore impossible to render a just account. In this case it was held that equity will not entertain a bill for an account of such stale transactions when all parties to the transaction who could explain them are dead.

In Willard v. Dorr, 29 Fed. Cas., No. 17,680, respondent's answer alleged, among other things, that the demand was stale and ought not, independent of any positive bar under any statute of limitations, to be entertained by the court, the lapse of time creating a presumption that it has been deemed settled by the parties or that it has no foundation in justice or equity. In this case the court said: "It has been the constant habit of admiralty courts to refuse their aid in favor of old and dormant claims. Like courts of equity, they prescribe a rule to themselves, by analogy to those positively prescribed to courts of common law. * More than twelve years elapsed between the end of this voyage and the commencement of the present suit; and if the case stood upon ordinary grounds, such a delay, unexplained, would be decisive against the libellants. It would affect the demand with the imputation of staleness."

* *

For forms of answer setting up the defense of laches, which were considered to be insufficient, see Mobley v. Cureton, 6 S. Car. 49; Florida Mortg.,

etc., Co. v. Finlayson, 74 Fed. Rep. 671.

Set Up in Cross-petition. In Bancroft v. Sawin, 143 Mass. 144, where a bill was filed to redeem land from a mortgage some days after the expiration of the time limited for redemption, the defendant appeared specially and filed a petition, in substance, setting forth the mortgage to him, his entry for the purpose of foreclosing the same, and his possession of the premises, and alleging that on April 12, 1886, the defendant made a bargain to convey said estate by deed to a purchaser thereof for a valuable consideration; that, upon examining the title to said premises in the registry of deeds, the defendant discovered that the plaintiff, claiming to be the purchaser, by sundry mesne conveyances, of the right to redeem the estate from said foreclosure, had filed the present bill in equity; that, in consequence of such a bill being filed, the intended purchaser refused to purchase said estate; that no notice of the filing of said bill had ever been given to the defendant, and no subpœna for him to appear and answer to said bill had ever been taken from the clerk's office, and no step had been taken by the plaintiff to redeem said estate from said foreclosure other than filing said bill; that, on said April 12, 1886, the defendant for the first time had notice that any such bill had been filed, and then only such notice as appeared by search of the records of titles; and that, believing that he had an undisputed title to said estate, he made valuable improvements thereon, and bargained for the sale thereof, as above set forth. The prayer of the petition was that the bill be stricken from the docket of this court, for want of prosecution, and for laches. And thereupon the bill was dismissed.

1. This answer is copied from the original record in the case.

See also R. I. Eq. Rules, No. 25 et seq.; R. I. Gen. Laws (1896), c. 240.

tions therein and setting up some matters in avoidance, respondent answered as follows:)

4. And this respondent, further answering, says that the causes of action upon which the judgment set out in the first paragraph of the complainant's bill, in favor of these complainants against the Providence Tool Company, were based, or any of them, did not accrue to the plaintiffs within six years before the commencement of their said action against said Providence Tool Company, and this allegation this respondent makes in bar to the plaintiff's bill, and prays that he may have the same benefit therefrom as if he had formally pleaded the same. ***

6. And this respondent further avers that these complainants and said creditors, by their forbearing to sue said corporation and by said conduct for so long a time, to wit, for the period of nearly ten years, and this complainant, even in the delay in taking out execution and bringing this suit, were guilty of gross laches, and also in view of the facts as herein before set up in this answer, and ought not in equity to be allowed now to proceed against the stockholders of said Providence Tool Company, since said company has now parted with all its property, and many of the stockholders who were such when the debt sought to be enforced was contracted, and when it became due and could have been enforced have either died or become insolvent, or have left the state during the long delay of the complainants to proceed against said stockholders, and this respondent has thereby lost the opportunity to enforce contribution from such stockholders of the sums, if any, which this respondent might be called upon to

pay.

And this respondent denies all and all manner of unlawful combination and confederacy wherewith he is by the said bill charged, without this, that there is no other matter, cause or thing in the said complainant's said bill contained material or necessary for the respondent to make answer unto and not herein and hereby well and sufficiently answered, confessed, traversed or avoided or denied, is true to the knowledge or belief of this respondent; all of which matters and things the respondent is ready and willing to aver, maintain and prove as this honorable court shall direct, and humbly prays to be dismissed with his reasonable costs and charges in this behalf most wrongfully sustained.

(Verification.)2

By his Attorneys,

Mason & Strong.

Form No. 12555.❜

(Precedent in Sullivan v. Sullivan, 23 Fed. Cas., No. 13,598.) [In the Circuit Court of the United States in and for the District of Massachusetts.

1. Numbered Paragraphs.— The answer shall be in numbered paragraphs. R. I. Gen. Laws (1896), c. 240, § 27. 2. See, generally, the title VERIFICA

TIONS.

3. In this case the bill was dismissed, the court holding that a long acquies. cence and lapse of time is a good ground against permitting a deed to be impeached as fraudulent.

against

Thomas Russell Sullivan, Elizabeth Sullivan In Equity, No. 102.
and William Appleton, administrator of
Jonathan Amory, deceased, and William
Appleton and Richard Sullivan, executors of
William Sullivan, deceased, defendants.

The joint and several answer of William Appleton and Richard Sullivan, two of the defendants to the bill of complaint, John L. Sullivan and Emily Sullivan, an insane person, by John L. Sullivan, her guardian, complainants.

These defendants now and at all times hereafter saving and reserving to themselves and each of them all benefit and advantage of exception which can or may be had or taken to the many errors, uncertainties and other imperfections in the said complainant's said bill of complaint contained for answer thereunto or unto so much and such parts thereof as these defendants are advised is or are material or necessary for them or any of them to make answer unto them, these defendants severally answering say:

(After confessing, denying and avoiding certain allegations in the bill, the answer alleged as follows:)]1

These defendants further say that they have been informed and believe that the moneys so received, or a part thereof, were originally invested by the said trustees in certain personal estates at the special instance and request of the said John L., and in such manner as he considered most for the interest of himself and his family; and that the investments were changed from time to time, but never without his consent and request; and that, he being embarrassed at the time, the said trustees, or some one of them, allowed him to appropriate the same to his own use from time to time, or applied the same to payment of his debts in times of great urgency and at his earnest solicitation, and to save him from bankruptcy, and upon his promise and assurance that the said trust funds should be replaced, and they be indemnified from and against all liability on account thereof; and, in proof thereof, these defendants pray leave to refer to a certain bond of indemnity, signed and sealed by the said John L., bearing date the twenty-sixth day of August, A. D. eighteen hundred and sixteen, and by him delivered to the said Sullivan and Amory, which is in the words and figures following, to wit: (setting out bond of indemnity verbatim).2

This defendant, the said Sullivan, further says, and the said Appleton believes it to be true, that after the date and delivery of the said bond, the said John L. continued to be in embarrassed circumstances, and made frequent applications to the said William Sullivan and Jonathan Amory, Jr., and to this defendant, Richard Sullivan, for relief and assistance by way of loan, endorsement, or otherwise; and

1. The matter to be supplied within [] will not be found in the reported

case.

2. The indemnity bond referred to in the text is set out in full in the reported

case.

they, or some one of them, did from time to time render him assistance, but he wholly neglected to repay the trustees the moneys received by him belonging to said trust fund; and afterwards the said William, Richard and Jonathan refused to render him further assistance, unless he would restore the same, or give them satisfactory indemnity against their liabilities as trustees; and on or about the twenty-fifth day of May, A. D. eighteen hundred and twenty-one, the said Thomas R. Sullivan and Elizabeth Sullivan, two of the children of the said John L., being of age, the said John L. made known to them his situation in relation to the said trust fund, and the circumstances under which the same had been appropriated to his use, and requested them to exonerate the said trustees from all liability therefor, so far as they were interested; and in compliance with said request, and upon the consideration that the said John L. was thereby released and exonerated pro tanto from his liability and promise to restore said fund, and of future advances and assistance to be made to him by the said William, Richard and Jonathan, they, the said Thomas R. and Elizabeth, did, on the seventeenth day of August, A. D. eighteen hundred and twenty-one, execute and deliver to the said William and Jonathan, Junr., a full release and discharge of all claims whatsoever which they had or might have against them by reason of their being trustees as aforesaid, and by reason of anything done, or omitted to be done by them, in the execution of said trust, which said deed of release is in words and figures following, to wit: (setting out deed of release verbatim).1

And these defendants say that they are informed and believe and allege, that when the said deed was executed, the said Elizabeth was perfectly sane and intelligent, and capable of appreciating the circumstances of the case, and the interest she was to relinquish; that she and the said Thomas R. were made acquainted with all the facts necessary to form a judgment as to the reasonableness and propriety of their executing the same, and that they did so freely, voluntarily, and of their own accord, and for the considerations before stated and none other. And these defendants expressly deny that said deed of release was executed by the said Thomas R. and Elizabeth, or either of them, under circumstances of fraud or duress, and insist that the same was done by them freely and voluntarily and for a good and valuable consideration. This defendant, the said Richard Sullivan, further says, and the said Appleton believes it to be true, that after the execution of the said deed of release, the said William Sullivan advanced other sums of money to the said John L., and expended large sums of money for the support and education of his wife and children, none of which were ever repaid by the said John L. or any other person; and on or about the twenty-seventh day of September, A. D. eighteen hundred and twenty-six, the said Emily Sullivan, being of full age, she and the said Thomas, for the consideration therein recited, executed and delivered to the said John L. a deed of assignment of all their residuary interest in said trust fund, which said deed

1. The deed of release referred to in the text is set out in full in the reported

case.