1. Where it appears by the complainant's bill that the remedy is
barred by lapse of time or that by reason of his laches, he is not
entitled to relief, the defendant may by demurrer avail himself of
the objection.
2. Under the rules of equity practice established by this Court,
the complainant is not entitled as a matter of right to amend his
bill after a demurrer thereto has been sustained, but the Court
may, in its discretion, grant him leave to do so upon such terms as
it shall deem reasonable.
3. The order refusing him such leave cannot be reviewed here if
the record does not show what amendment he desired to make.
4.
Wood v. Carpenter, supra, p.
101 U. S. 136,
reaffirmed.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This suit was brought by the Mercantile National Bank of the
City of Hartford against Willard Carpenter, John Love, and DeWitt
C. Keller. The chief difference between it and
Wood v.
Carpenter, supra, p.
101 U. S. 135, is
that it is in equity, while that was an action at law. The bill
sets out the same facts in the same way as the declaration, except
that the latter alleges a fraudulent purchase by Keller of a
judgment in favor of Wood
Page 101 U. S. 568
against Carpenter, while the bill alleges such a purchase of a
judgment in favor of the complainant against him and John Love. The
defendants severally demurred. The demurrers were sustained, and
the complainant asked leave to amend. Leave was refused and the
bill dismissed. The complainant thereupon appealed to this
court.
Our reasoning in the case at law and the authorities there cited
are applicable here. It appears on the face of the bill that the
case which it makes is barred by the statute of limitations, and
that the excuse of concealment of "the cause of action" by the
defendants is not so alleged as to avail the complainant. This
defect can be taken advantage of by demurrer.
Rhode
Island v. Massachusetts, 15 Pet. 233;
Maxwell v.
Kennedy, 8 How. 210. The objection of laches is
also fatally apparent.
Brown v. County of Buena Vista,
95 U. S. 157;
Duncan v. Lyon, 3 Johns. (N.Y.) Ch. 351. The demurrers of
the defendants were therefore, rightly sustained, and the bill was
properly dismissed.
It is insisted that the complainant was entitled of right to
amend under the 29th of the rules of equity practice established by
this Court, and that the learned judge below erred in refusing the
leave asked for. That rule has no application, and does not affect
the case. It applies only where leave is asked before a demurrer is
allowed. Formerly, upon the allowance of a demurrer to a whole
bill, the bill was out of court, and no subsequent proceeding could
be taken in the cause. 1 Daniel, Ch.Pr. 597; 1 Barb.Ch.Pr. 111. The
rigor of this principle was subsequently relaxed. It is unnecessary
to pursue the subject further, because the practice in such a state
of things in the courts of the United States is regulated by the
35th rule of equity practice, which is as follows:
"If, upon the hearing, any demurrer or plea shall be allowed,
the defendant shall be entitled to his costs. But the court may, in
its discretion, upon motion of the plaintiff, allow him to amend
his bill upon such terms as it shall deem reasonable."
In this case, it does not appear what amendment or amendments
the appellant desired to make nor that the court below in any wise
abused the discretion with which it was clothed. Error must be
shown affirmatively. It cannot be presumed.
Decree affirmed.