The White Pine news. [volume] (Treasure City, Nev.) 1868-1906, 1903-11-05

relief from court Of equity.
/ At the threshold of the consideration of
this defense of laehes, the plaintiff :
counsel raise the objection that the de-
Tense should not be considered because
not set up in the pleadings. 1t is argued
! that the question was disposed of when.
at the opening of the trial, the court re-
fused To permit defendants to amend their
answer by setting up a plea of the statute
of limitations But laches and limitations
are not the same thing. Sometimes
courts of equity do treat mere delay as
bar 10 the relief sought. But II may be
conceded that in this State when there
is AN express statute of limitations APP
plying To an equitable cause of action.
mere lapse of time will not bar the action
unless the time is equivalent to that
named in the statute and the defense Is
specially pleaded. Laches ordinarily con-
sists of something more than mere delay.
"l.aches is such neglect OF omission 10
assert right as taken In conjunction
| with lapse of time more or less great ana
other circumstances causing prejudice to
an adverse party operates as bar IN a
court Of equity.
Am q Eng Ency. Law list ed. vol.
L. .. $50.
Iaehes is no more technical defense like
the bar OF the statute OF limitation IL
goes to the merits of the cause, as some
Judges have expressed it ito the very
vitals" of the action. As "A defense 1t Is
as old as the English Court Of chancery,
older than the statute of limitations and
never superseded by the latter Lord
| Chancellor Camden in speaking OF the
| Jurisdiction of the Court Of Chancery
from which we derived our equity
Jurisprudence. used the following language
which has been used again and again by
the Supreme Court Of the United States,
| A nd htH faN
writer's on equity with and without
quotation marks. "A court of equity.
which is never active in giving relief
against conscience public convenience.
has always refused its aid TO state de
mandss wherever a party has slept on his
rights. and acquiesced for great length
of time. Nothing can call forth TINS
court into activity but conscience, good
faith and reasonable diligence. Where
these are wanting, the court is passive,
and does nothing Laches and neglect
are always dscountehsneed, and there
fore from the beginning Of this lufisdle
ton there was always limitation TO
suits In this court IL Is because laches
goes to the very merits Of the action, that
whenever and however its existence Is
manifested To the court. a court Of
equity will treat it as bar TO the grant
ing of equitable relief Hence If the
Ilaches appears on the face Of the bill or
complaint the question may be raised on
demurrer.
Badger VS. Badger. Wall. OC. s. SOC.
Hinehman rs. Kelley. 81 Fed. 80.
Curtis VS.. LalSin, - Fed. 25l.
Bell VS. Hudson (Cal) Il Pac 79l.
II is true that In a few jurisdictions
| laches must be pleaded, but the better
practice sustained by the great weight Of
authorities and by the reason Of the rule.
| is that the defense of laches need not
| be taken advantage of by the pleadings
/ II the case as IL appears at the hearing
| is liable to this objection. the court will
usually remain passive and refuse re
lief. and it is sufficient If the objection
| is called to the attention of the court on
the hearing or argument of the case.
| Badger VS. Badger. supra.
Sullivan vs.. Railroad Co. 81 L. S. 81.
Pratt vs.. California Mining Co. q
| Fed. $50.
Lakin Us. Sierra Min. Co. % Fed. 337
Woodmanse. etc. Mfg. Co. vs. Williams.
Gs Fed 4S9
Harris vs.. Hmegrass, eCalD Pae. 9s7.
Hagerman Us. Bates. tcolo.D IS Pae
100.
p. S29 and authorities cited in the note
In Sullivan VS. Railroad Co, supra, the
United States Supreme Court. speaking
by Mr.. Justice Swayne. says: To let in
the defense that the claim Is stale, and
that the bin cannot. therefore, be sup
ported, II is not necessary that tounda-
ton shall be laid by any aYerment in the
answer of the defendants. If the case, as
| IL appears at the hearing. Is liable TO the
objection by reason of the laches Of the
complainants. the court will, upon that
ground, be passive and refuse relief
Every case Is governed chiefly by its
own circumstances; sometimes the anal
ogy Of the statute of limitations Is APP
piled; sometimes a longer period than
that prescribed by the statute is required
In some cases a shorter time is sufficient
and sometimes the rule Is applied where
there is no statutable bar. II Is oompe-
tent for the court to apply the inherent
principles of its own system of iuris
prudence, and to decide accordingly" And
the language just quoted Is adopted in its
entirety by the Supreme Court Of our
own State as the law on this point.
jarrett vs. Mahan, 20 Nev. So at PIP.
% and 90.
The defense of laches, then. was raised
in due season and in proper manner In
this case. At the beginning of the trial
counsel for defendants raised the objec-
ton that the complaint did not state
facts sufficient to constitute a cause of
action. on the ground that il showed
laches on the part of plaintiff. Ger
tainly the complaint did not excuse or
explain the delay of nearly three years
in beginning the action and it may be
that the objection was well taken:
Curtis VS.. Lakin. supra.
The objection could properly be taken
in that manner, If the complaint showed
laches on its face. The point was not
argued and was not passed upon and 1t
is not necessary To pass on IL at this
time. During the taking of the testimony
| a. a 1T fg.
counsel was several times called to the
question Of laches by counsel for defend
ants. The plaintiff had an opportunity
to meet the defense and did attempt to
meet IL. Questions were asked of wit
nesses by the counsel for the respective
parties which were admissible only. and
were claimed to be admissible, on the
theories that the answers would either
show 1aches or excuse or explain away
apparent laches. And since | deem that
the evidence itself discloses that plaintiff
has been guilty of laches | need not
pass on the sufficiency of the complaint
Courts of equity have always enforced
the doctrine of laches with special strict
ness in cases involving mining property
and other property OF like speculative ma
ture and fiuctuating value and have de-
cared that in such cases a sutton Will be
held to special diligence In asserting his
rights. II is "a principle necessary to
protect those who invest their capital
and labor in enterprises useful but
hazardous" Twin Lick oil Co. VS. Ma
bury. infra). The reasoning OF Judge
Bgelow In the case of South End Mfg
Co. vs. Tinney 20 New. 10. In reference
to our short statute of limitations for
mines applies also to the defense Of laches
when a mine Is the subject of litigation.
At page &c of the opinion he says aOthor
classes of real property are compare
lively stable In value and can be used