Cooke v. Barrett

Morton, J.

It. is said in Tash v. Adams, 10 Cush. 252 , “ It is a well established rule in equity that if a party is guilty of loches or unreasonable delay in the enforcement of his rights, he thereby forfeits his claim to equitable relief,” and that, “ where a party, being cognizant of his rights, does not take those steps to assert them which are open to him, but lies by, and suffers other parties to incur expenses and enter into engagements and. contracts of a burdensome character,” the rule is especially applicable. The principle here laid down has been recognized in later cases and governs this case. See Fuller v. Melrose, 1 Allen, 166 ; Royal Bank of Liverpool v. Grand Junction Railroad, 125 Mass. 490 . The plaintiff appeared in the Court of Insolvency, and urged various objections against the confirmation of the proposal for composition. Those objections were the same, as appears from the report, that were urged at the hearing before the single justice in this court. The judge of the Court of Insolvency overruled them, and on July 24, 1890, ordered the proposal for'composition to be confirmed, and provided in the decree for the payment into court within thirty days of a large sum in money and notes. This payment was made on the 23d of August following. The notes were indorsed by third parties, but it does not appear whether the money was the proceeds of the debtor’s estate or was obtained from some other source. The money and notes were distributed among the creditors, and this bill was filed on November 17, 1890, after the distribution had taken place, and nearly four months after the decree of the Court of Insolvency, and without,- as the report shows, any reason being given at the hearing before the single justice for the delay in filing it. We think it is a clear case of loches. If the plaintiff desired to avail himself of the objections which he had urged in the Court of Insolvency, he should have done so seasonably, and before full effect had been given to the proceedings in that court, and to its decree, by the distribution of the money and notes. It would be unjust to permit him to lie by until all that has been done, and then, for reasons of which he has been cognizant all the while, to upset the composition proceedings. Bill dismissed.