41 A. 1001 | R.I. | 1898
The complainant, a married woman, brings this bill to enforce the payment of a promissory note, on demand, against the representatives of the estate of Earl P. Mason and William S. Slater, deceased, and legatees and heirs of said Mason and Slater. The note, for the sum of twenty-five thousand dollars, was given to her August 3, 1872, for money advanced out of her estate to the firm of Taylor Wright, of Chicago, the firm consisting of Frank C. Taylor, her husband, and John W. Wright, both of Chicago, and also of said Mason and Slater of this State. Soon after the date of the note the firm ceased to do business, and said Taylor and Wright were then and since have been insolvent.
Earl P. Mason died intestate, September 21, 1876, and William S. Slater died testate, May 22, 1882.
The complainant commenced an action against the surviving partners October 7, 1892, in Illinois, and recovered judgment, on which execution was returned nulla bona.
This bill was filed April 26, 1897, to which the respondents demur.
We cannot consider the first two grounds of demurrer, that the note was void in Illinois prior to 1874, and that the separate estate of a married woman must be derived from persons other than her husband, for the reason that courts do not take judicial cognizance of the statutes of other States, and hence, to raise a question of law before trial they must be set up by pleading. O'Reilly v. N.Y. N.E.R.R. Co.,
The third ground of demurrer is based upon the statute of limitations and laches.
In a former suit upon this note, which is referred to in the bill, this complainant alleged that the note was negotiated at *106
the Fourth National Bank of Chicago, and that her trustee purchased said note two days afterwards; and that January 1, 1876, the firm gave another note to her for interest then due. Upon these allegations we held that the note for $25,000 was barred, because the statute having begun to run, while the note was in the hands of the bank, it continued to run after it came to her possession; the alleged new promise operating only to suspend the bar, and not to create a new cause of action. We also held that the second note was not barred, because it was given to the complainant while under the disability of coverture. Taylor
v. Slater,
Equity does not favor stale claims, and will not assist one who has slept upon his rights, and shows no excuse for his laches, in asserting them. Lane v. Locke,
The defence may be taken on demurrer, where it appears in the bill, or by plea or answer. Warren v. Prov. Tool Co.,
The defence may also be set up in argument; Woodmanse v.Williams, 37 U.S. App. 109; and even on suggestion of the court. Chase v. Chase,
The rule as stated in the latter case, reported in *107
The only suggestion of a justification for her long delay is *108
the allegation that she is not and has not been guilty of any laches in the premises as she is, by a decree of this court, entered December 17, 1892, permitted to pursue her remedy against the respondent without prejudice to the complainant's right to any remedy to which she might be entitled upon said note of $25,000 against the said respondents, provided she should first pursue her claim against said Frank C. Taylor and John M. Wright, surviving partners, to final judgment and execution, as required by statute, which was the ground of dismissal of the suit. The allegation that such a decree was a permission to maintain this suit to the extent claimed is certainly unfounded. As the case stood, we had decided that the note was barred by the statute of limitations. The complainant then amended her bill by alleging the issue of the note to herself, as in this case. Then, on demurrer to the amended bill, we decided that it would not lie until after compliance with the statutory requirement of resort to the surviving partners. The question of laches did not arise, because the bill was to be dismissed upon the ground stated, and the court could not tell whether a new bill, if one should be filed, might not show facts which would excuse apparent laches. The decree was, therefore, an ordinary decree, "without prejudice." The effect of such a decree is stated in Reynolds
v. Hennessey,
Cases applying the doctrine of laches are too numerous to *109
cite. In many of them it has been applied to delay for a less time than appears in this bill. As Mr. Justice Brewer said, inGalliher v. Cadwell,
The principle is sufficiently stated by Mr. Justice Gray, inSpeidel v. Henrici,
For these reasons we are of opinion that the demurrer to the bill must be sustained.