Snow v. Boston Blank-book Mfg. Co.

• Decision Date: 01 April 1891
• Citation: 26 N.E. 1116,153 Mass. 456
• Parties: SNOW v. BOSTON BLANK-BOOK MANUF'G CO. et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

153 Mass. 456

26 N.E. 1116

SNOW v. BOSTON BLANK-BOOK MANUF'G CO. et al.

Supreme Judicial Court of Massachusetts, Middlesex.

April 1, 1891

COUNSEL

A.F Means, for plaintiff.

C.A Drew, for defendants.

OPINION

C ALLEN, J.

There is no doubt under our practice that if a bill in equity discloses laches on its face the defense may be taken by demurrer; but if the facts upon which this defense rests do not sufficiently appear on the face of the bill, then they may be set up in the answer. It has, indeed, been said elsewhere that laches is a defense that the court will take notice of, even though not pleaded at all. Sullivan v Railroad, 94 U.S. 811. In our practice, if a bill is demurred to on the ground of laches, and the demurrer is overruled, the defense may still be made in the answer, provided there are any new facts to support it; and the waiver or withdrawal of a demurrer which assigns laches as one ground is no waiver of the defense of laches, but it merely amounts to saying that the defendant will present his defense of laches upon all the facts of the case, instead of presenting it simply upon the facts set forth in the bill. The case was heard before a single justice of the superior court, who ordered that the plaintiff's bill be dismissed. The plaintiff thereupon on the same day entered an appeal from the decree, and requested the presiding justice to report the facts found by him in the cause. Pursuant to this request, a report was made, stating in respect to laches that the court found as fact upon the evidence that there was laches as to all the plaintiffs. The plaintiff thereupon upon the same day filed a bill of exceptions which was allowed by the justice, setting forth that the plaintiff excepted to the treatment of the question of laches as a question of fact, and to the failure to find and report the subsidiary facts upon which the finding of laches was based. There had been apparently no previous request to make a detailed report of these subsidiary facts, and it is possible that it was considered premature to make such request before the announcement of the decision upon the general question of laches; and the presiding justice may not have understood the request, as made, to call for such a detailed report. The statute of 1883, (chapter 223, § 7,) provides that, "in cases of appeal from a decree in equity of the superior court, the justice by whom the decree was made shall, at the request of the appellant, report the facts found by him, as far as material, provided that such request be made within four days after the appellant has been notified of the entry of the decree." The tendering of the bill of exceptions on the same day of the entry of the decree goes to show that the plaintiff then wished to have a report made of the subsidiary facts upon which the finding of laches was based, and, though he did not make a formal request to that effect, which really would have been the more proper method for him to pursue, yet we think he should not lose his rights on this account, and that his tender of his bill of exceptions, coupled with his previous request for...