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The defense of laches need not be pleaded.21 Nor the presumption of payment after twenty years.22

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§ 183. Pleading statutes of limitations. It is the safer practice for the defendant to plead the statute of limitations in every case where he relies upon it; although, when laches appear upon the face of a bill, in equity, it may be dismissed upon a motion before answer, and although, if not pleaded, it may be raised at the hearing before the testimony is taken.3 Where the bill shows that a reissued patent was void because of delay in the patent office,1 that defense need not be pleaded. In most cases, it has been held that Federal statutes of limitations need not be pleaded." When a suit is brought after the statutory time, the burden is

v. Browne, C. C. A., 204 Fed. 224; Drees v. Waldron, C. C. A., 212 Fed. 93; Kellogg Switchboard & Supply Co. v. Dean Electric Co., 231 Fed.

194;

U. S. v. Fletcher, 231 Fed. 326. 21 Whitaker v. Whitaker Iron Co., C. C. A., 249 Fed. 531.

22 Chesapeake & Del. Canal Co. v. U. S., C. C. A., 223 Fed. 926, reversed on another point, 250 U. S. 123.

§ 183. 1 Fichtel v. Barthel, 173 Fed. 489, a patent case; Robinson v. Mutual Reserve Life Ins. Co., 175 Fed. 629; Robinson v. Mutual Reserve Life Ins. Co., 175 Fed. 629. The limitation upon the time to bring actions to claim filiation in the Civil Code of Porto Rico of 1889, art. 137, and of § 199 of the Porto Rico Act of March 1, 1902, must be pleaded. Burnet v. Desmornes Y Alvarez, 226 U. S. 145, 57 L. ed. A defendant in a foreclosure suit, who claimed an interest in the property, but who was not alleged to be in possession nor to owe the amount of the debt, was not allowed by a demurrer to avail himself of the statute of limitations. Blair v. Silver Peak Mines, 84 Fed.

2 Godden v. Kimmell, 99 U. S. 201, 25 L. ed. 431; National Bank v. Carpenter, 101 U. S. 567, 25 L. ed. 815; Wisner v. Barnet, 4 Wash. 631; Robinson v. Mutual Reserve Life Ins. Co., 175 Fed. 629; Alexander v. Fidelity Trust Co., 214 Fed. 495. See Edison El. Light Co. v. Equitable Life Assur. Soc. of U. S., 55 Fed. 478; Sullivan v. P. & K. R. Co., 94 U. S. 806, 811, 24 L. ed. 324; Doe v. Hyde, 114 U. S. 247, 29 L. ed. 142; Phillippi v. Phillippe, 115 U. S. 151, 29 L. ed. 336.

3 As to the former practice, see Waller v. Texas & P. Ry. Co., C. C. A., 229 Fed. 87; Re International Mineral Co., 222 Fed. 415; Fidelity & Casualty Co. v. Jasper Furniture Co., Ind., Oct. 1917, 117 N. E. 258. 4 Nat. Cash Register Co. v. Union Comp. Mach. Co., 143 Fed. 342. See supra, 181a.

5 Wollensak v. Reiher, 115 U. S. 96, 101, 29 L. ed. 350, 351; Lockhart v. Leeds, 195 U. S. 427, 49 L. ed. 263; Thurmond v. Ches. & O. Ry. Co., C. C. A., 140 Fed. 697. 6 Supra, §§ 180c, e, g, k, n.

on the complainant to show in his bill and by his proof that it would be inequitable to apply the statute to his case. That the delay has been prejudicial to the defendant need not be affirmatively shown, but may be presumed, and it was so presumed when a bill was filed eighteen months after the complainant admitted to have discovered the existence of a decree of divorce which he claimed to be fraudulent and the defendant had married since the decree.8

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In an action of common law the Statute of Limitations must be pleaded and if not pleaded is waived. When, however, a statute creating a new cause of action contains a limitation of the right to sue this is frequently construed as a condition of the relief and in such case need not be pleaded.1o

The defense of the Statute of Limitations is in substantially the same form as a similar plea in an action at law, but no special form is essential. The same strictness of pleading the statute is not required at equity as at law; and it was held to

7 Godden v. Kimmel, 99 U. S. 201, 25 L. ed. 431; National Bank v. Carpenter, 101 U. S. 567, 25 L. ed. 815; Wilson v. Plutus Min. Co., C. C. A., 174 Fed. 317; Wisner v. Barnet, 4 Wash. 631. But see Sullivan v. P. & K. R. Co. 94 U. S. 806, 811, 24 L. ed. 324, 326; Doe v. Hyde, 114 U. S. 247, 29 L. ed. 242; Phillippi v. Phillippe, 115 U. S. 115 U. S. 151, 29 L. ed. 336.

8 McNeil v. McNeil, C. C. A., 170 Fed. 289. In Newberry v. Wilkinson, C. C. A., 199 Fed. 673, a bill was dismissed for laches when filed against the sureties of a guardian between three and four years after the complainant became of age, and he had had notice sufficiently to put him upon inquiry two years before his infancy terminated, but made no search of the records until three months before the suit was brought. 9 Shields v. Shimm, 124 U. S. 351, 8 Sup. Ct. 510, 31 L. ed. 445; Gormley v. Bunion, 138 U. S. 623, 11 Sup.

Ct. 453, 34 L. ed. 1086; Hallett v. New England Roller Grape Co., C. C. A., 119 Fed. 873.

10 Phillips v. Grand Trunk Co., 236 U. S. 662; The Harrisburg, 119 U. S. 199, 1 Sup. Ct. 140, but see Sharrow v. Inland Lines Ltd., 214 N. Y. 101; Carlin v. Peerless Gas Light Co., 283 Ill. 142, 119 N. E. 66; Goldstein v. Chicago City Ry. Co., 286 Ill. 297, 121 N. E. 726; Bretthauer v. Jacobson, 79 N. J. Law 223, 75 Atl. 560; McRae v. N. Y., N. H. & H. R. R. Co., 199 Mass. 418, 85 N. E. 425; Harwood v. Chicago, Rock Island & Pacific Co., 101 Kan. 215, 171 Pac. 354; De Martino v. Siemon, 90 Conn. 527, 97 Atl. 765; Hartary v. Chicago Ry. Co. Illinois, 124 N. E. 849.

11 Harpending v. Reformed Prot. Ch., 16 Pet. 455, 101 Fed. 1029; West Portland H. Ass'n v. Lownsdale, 17 Fed. 205; Story's Eq. Pl., $ 752.

be a sufficient averment of the Statute of Limitations, as well as of laches, when the answer alleged that if there had been any claim against the defendant's interstate in his lifetime, by reason of the transactions alleged in the bill, which was denied, said claim was barred by the lapse of time and the neglect of plaintiff to have a settlement of the same in the lifetime of the decedent; and that the defendant, therefore, believes that any such claim is barred, as plaintiff allowed the claim to sleep only after the death of the deceased.12 When the answer pleaded a limitation of six years, whereas the three years' statute applied; it was held to be sufficient.13 If the bill charge fraud or other matters, which, if true, would prevent the statute from depriving the complainant of relief, the plea must deny them.14

§ 184. Defense of statute of frauds. The State Statute of Frauds will be followed by the Federal courts. Under the old practice, if the bill showed that the complainant's case is repugnant to the Statute of Frauds, it was demurrable. This, however, is rarely the case, and the statute was usually referred to by plea or answer. The rule is thus stated by Lord Chancellor Cranworth: "It was argued that the Statute of Frauds was not open to the defendant, by reason of his not having insisted upon the statute as a defense; but this is a mistake. Where a defendant admits the agreement, if he intends to rely on the fact of its not being in writing and signed, and so being invalid by reason of the statute, he must say so; otherwise he is taken to mean that the admitted agreement was a written agreement good under the statute, or else that on some other ground it is binding on him; but where he denies or does not admit the agreement the burden of proof is altogether upon the plaintiff, who must then prove a valid agreement capable of being enforced." 4 It has been held that the statute is waived unless

12 Huntington Nat. Bank v. Huntington Distilling Co., 152 Fed. 240. 13 Ramsden v. Gately, 142 Fed.

912.

14 Stearns v. Page, 1 Story, 204; Himrod v. Ft. Pitt Mining & Milling Co., C. C. A., 202 Fed. 724.

$ 184. 1 Randall v. Howard, 2 Black, 585, 589, 17 L. ed. 269, 271. 2 Randall v. Howard, 2 Black. Fed. Prac. Vol. I-67

But

585, 589, 17 L. ed. 269, 271.
see Chapman V. School Dist. 1
Deady, 108.

3 For an illustration of the plea, see Jackson v. Oglander, 2 H. & M. 465.

4 Ridgway v. Wharton, 3 De G., M. & G. 677, 689. But see Heys v. Astley, 9 Law Times (N. S.), 356.

pleaded. The facts which show that the statute applies must be stated specifically. Otherwise the defense is bad.7

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§ 185. Defenses of matter in pais. Defenses founded upon matters in pais state some other reason, why the plaintiff should not have relief,1 for example a release, or an account stated, or an equitable estoppel,2 an election,3 or a purchase without notice for a valuable consideration.*

§ 185a. Equitable estoppel in pais. An estoppel in pais is often called an equitable estoppel but it is a defense recognized at common law.1 An equitable estoppel or an estoppel in pais arises whenever a man by his acts, representations, admissions, or silence when he ought to speak intentionally or through culpable negligence induces another to believe certain facts and such other relies and acts thereupon so as to be prejudiced if the existence of the facts is denied.2

The most frequent examples of estoppel in pais in the Federal courts arise in patent cases. A patentee who has assigned his patent, or a licensee whose license has not been repudiated," cannot contest its validity in a suit for its infringement. An assignor of a patent cannot sue his assignee for the infringement of an older and broader patent covering the same invention subsequently acquired by him when the assignee has acted within the limitation of the patent assigned. The same rule applies to the licensee of the assignor." To the employer of

5 Jennings v. Augir, 215 Fed. 658; Contra, Thomas J. Baird Inv. Co. v. Harris, C. C. A., 209 Fed. 291 (holding that in an action at law a general denial coupled with an admission of an execution of the contract, did not waive the defense of the statute of frauds).

6 Bailey v. Wright, 2 Bond, 181; McCloskey v. Barr, 38 Fed. 165, 169. 7 Ibid.

$ 185. 1 Story's Eq. Pl., §§ 795815.

2 Infra, § 185a.

3 Infra, § 185b.

4 Infra, § 185c.

§ 185a. 1 Weber v. Hetzell, C. C.

A., 230 Fed. 965.

2 Ferry v. Troy Laundry Co., 238 Fed. 867.

3 See infra, § 188.

4 Underwood Typewriter, Co. v. Manning, 221 Fed. 652; Mergenthaler Linotype Co. v. Int. T. Mach. Co., 229 Fed. 168; Leader Plow Co. v. Bridgewater Plow Co., C. C. A., 237 Fed. 376.

5 Martin v. New Trinidad Lake Asphalt Co., 255 Fed. 93.

6 United Printing Mach. Co. v. Cross Paper Feeder Co., 220 Fed. 322.

7 Leader Plow Co. v. Bridgewater Plow Co., 237 Fed. 376.

the assignor who has instructed the latter to design a competing device which will avoid infringement. To anyone who with knowledge of the assignment cooperates with the assignor in the infringement. To a corporation organized after the assignment of which the assignor becomes the president; 10 or organized by the procurement of the assignor 11 or which has succeeded. to the business and assets of a co-partnership which had agreed to cease infringement.12 But not to the manufacturer of an infringing machine upon the order of such a corporation except as to that particular machine.13 The estoppel does not prevent the assignor or licensee from proving the state of the prior art so as to limit the scope of the patent; 14 nor from denying the infringement.15 It has been held that the assignor cannot escape the estoppel by alleging that he was induced by unfair representations to part with the patent; 16 but in a later case defendant was permitted to deny complainant's title to the patent and in a counter-claim allege equitable ownership in itself and pray for a decree quieting its title.17 A complainant is not estopped to attack a patent introduced by defendant as part of the prior art which was originally pleaded in the bill but afterwards abandoned.18 A plaintiff who has ratified a license by

8 Mergenthaler Linotype Co. V. Int. T. Mach. Co., 229 Fed. 168.

9 Schiebel Toy & Novelty Co. v. Clark, C. C. A., 217 Fed. 760; Dalton Add. Mach. Co. v. Moon-Hopkins Billing Mach. Co., 223 Fed. 51; Martin Gauge Co. v. Pollock, 251 Fed. 295, 298. But see RoessingErnst Co. v. Coal & Coke By-Product Co., C. C. A., 208 Fed. 990.

10 Roessing-Ernst & Co. v. Coal & Coke By-Products Co., C. C. A., 208 Fed. 990.

11 Martin Gauge Co. v. Pollock, 251 Fed. 295.

12 Dudlo Mfg. Co., v. Varley Duplex Magnet Co., C. C. A., 253 Fed. 745.

13 Roessing-Ernst Co. v. Coal & Coke By-Products Co., C. C. A., 208 Fed. 990.

14 Babcock & Wilcox Co. v. Toledo Boiler Works Co., C. C. A., 170 Fed. 81; Standard Plunger Elevator Co. v. Stokes, C. C. A., 212 Fed. 941; Schiebel Toy & Novelty Co. v. Clark, 217 Fed. 760; Mergenthaler Linotype Co. v. Int. Typesetting Co., 229 Fed. 168, 172; H. D. Smith & Co. v. Southington Mfg. Co., C. C. A., 247 Fed. 342.

15 H. D. Smith & Co. v. Southington Mfg. Co., C. C. A., 247 Fed. 342.

16 Vacuum Eng. Co. v. C. A., 209 Fed. 219.

Dunn, C.

17 Cleveland Eng. Co. v. Galion D. M. Truck Co., 243 Fed. 405.

18 Mergenthaler Linotype Co. v. Int. Typesetting Co., 229 Fed. 168, 173.

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