The right of the plaintiff to maintain its bill is denied because it is averred that the plaintiff elected to pursue this first remedy and is thereby precluded from a resort to the courts.
The grounds for dismissal which we have discussed as 3 and 4 so far merge with that discussed in No. 1 that they can best be considered together.
5. There is authority for the proposition that laches apparent on the face of the bill is ground of demurrer. There is, however, none such here. Laches, if it exists, is in consequence a defense, not a basis for a motion to dismiss. It is an equitable doctrine. The mere lapse of time during which bill might have been filed does not argue laches unless there is a statute of limitations, and the exception is on the principle that equity follows the law. Otherwise there must be in laches the element of disadvantage to the defendant making the pressing of the bill inequitable. On the face of this bill the defendant has not been disadvantaged by any delay there may have been in bringing this proceeding. It would, of course, be to its advantage to have the bill dimissed, but its right to a dismissal must be for want of equity in the complaint.This it must show.
6. No applicable statute of limitations has been brought to our attention. Laches and limitation statutes in some respects rest upon the same general principle. It is that of public interest. It is voiced in the familiar adage that the public is concerned with the discouragement of litigation which should not be brought. They operate, however, wholly in different ways. Laches, as we have said, is an equitable doctrine. A complaint which, because of its staleness, it is unjust to the defendant to bring, will be thrown out for want of equity. It thus goes to the cause of action. A statute of limitations, on the other hand, is the command of an autocrat. It belongs to the "thou shall not" class. It is a denial, not of the cause of action, but of the right of action. It is directed against the writ not the merits of the complaint of legal injury. Its operation is determined by the calendar. The courts of law, it is true, have infused into the law of limitations something of the spirit of equity by admitting the doctrine of the tolling of such statutes by waiver and the like, and courts of equity, as we have said, will follow the law of a statute by admitting the defense of laches to a complaint which would be barred at law by the statute. Nevertheless the distinction holds good that a bill will be dismissed because of laches, if in equity and good conscience it should be dismissed, while an action at law will be barred by the statute merely because brought too late. Not only has no statute of limitations been cited to us, but there is authority in Pennsylvania for the doctrine that the bar of a statute is a defense to be pleaded and if not pleaded is waived. Into this, however, we need not go, as we hold that neither of the two grounds last discussed will warrant the dismissal of the bill.
7. This brings us to the criticism that this bill is wanting in necessary parties. We think this objection is well taken. When five persons, as here, have the right to share in a fund, the share of one determines the shares of the others.Hence all have a right to their day in court. The want of parties may not appear on the face of the bill. It may then be suggested in the answer and the plaintiff may set down the cause for argument on this objection. Here the defect appears from the face of the bill, and it has been argued. It may thus be a ground for dismissal. Rules 25, 37, and 43 (28 USCA, following section 723) have application. The cause of the plaintiff is in the hands of competent counsel so that we have no thought of dictating what they should do. No answer has as yet been filed so that the bill may be amended, but if for any reason leave of the court should be required, leave to amend is allowed.
This means that the motion to dismiss is denied on any of the grounds set forth other than Nos. 7, 8, and 9.
No decree is now made, but the parties have leave to submit a formal decree.
The time of the defendant to answer should be extended, and we file herewith a formal extension.
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