The respondent has had a part, at least, of the evidence printed with the case. But, not having been made a part of the bill of exceptions, it cannot be considered. Jones v. Jones, 101 Me. 447, 64 Atl. 815, 115 Am. St. Rep. 328.

In the first place, the petitioner contends that the respondent's exceptions should be dismissed, on the ground that it does not appear that the right of exception was expressly reserved before the hearing. She cites Frank v. Mallett, 92 Me. 77, 42 Atl. 238. The point taken is not tenable. The rule relied upon applies only to jury waived cases. It does not apply to cases, like the present one, which can only be heard by the court alone. In the latter class of cases exceptions lie to rulings in law, although the right is not expressly reserved in advance.

The court below ruled that the answer of the respondent was not evidence of the facts stated therein. In support of the exception to the ruling the learned counsel for the respondent seems to rely upon the old rule in equity practice, that an answer to a bill in equity is evidence. By the old practice the 'bill called for an answer under oath, and it was held that the answer was evidence, and that it took the equivalent of two witnesses to overcome such an answer. But, even if the rules of equity practice were applicable to a case like this one, the respondent's position could not be sustained. Answers, even under oath, when an answer under oath is not called for by the bill, are not evidence. Clay v. Towle, 78 Me. 86, 2 Atl. 852; R. S. c. 79, § 17. Here no answer was called for by the petition, and the answer filed was not under oath. But this is not a bill in equity, and we think the rules of equity procedure do not apply. The answer merely serves to mark out the issues, as well as to limit them. It is in no sense evidence. It is no more evidence than is a brief statement pleaded under the general issue. The ruling was right.

Upon the exception to the ruling that the petitioner is not barred by laches, two questions arise: First, do exceptions lie? It is contended by the petitioner that the ruling was one of discretion, to which exceptions do not lie. We think otherwise. Laches is negligence or omission seasonably to assert a right. It exists when the omission to assert the right has continued for an unreasonable and unexplained lapse of time, and under circumstances where the delay has been prejudicial to an adverse party, and when it would be inequitable to enforce the right. The circumstances in a given case which are claimed to constitute laches are, of course, questions of fact. But the con

developed, it is commonly held that the defense of laches may be raised by demurrer; that is, assuming the facts stated in the bill to be true, the bill is not maintainable, as a matter of law, because of laches. Taylor v. Slater, 21 R. I. 104, 41 Atl. 1001; Meyer v. Saul, 82 Md. 459, 33 Atl. 539; Coryell v. Klehm, 157 Ill. 462, 41 N. E. 864; Kerfoot v. Billings, 160 III. 563, 43 N. E. 804; Whitehouse, Eq. Practice, § 331.

Nevertheless, the decision of the court upon the question of laches is so much a matter of discretion, dependent upon the facts in the case, that it should not be disturbed on appeal or exceptions, unless clearly shown to be wrong. 12 Ency. of Pleading & Practice, 840.

The only fact contained in the court's findings which could be a ground for the application of the doctrine of laches is the lapse of time between the discovery of the fraud and the filing of this petition. But mere lapse of time is not enough. "The true doctrine concerning laches," says the author of Pomeroy's Equitable Jurisprudence, vol. 5, § 21, "has never been more concisely and accurately stated than in the following language," used by the Rhode Island court: "Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another. So long as the parties are in the same condition, it matters little whether one presses a right promptly or slowly, within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has, in good faith, become so changed that he cannot be restored to his former state, if the right be enforced, delay becomes inequitable, and operates as an estoppel against the assertion of the right." Chase v. Chase, 20 R. I. 202, 37 Atl. 804.

In this case the second marriage occurred about two months after the divorce, and years before the petitioner had any knowledge of the fraud. The delay of the petitioner, after discovery, was in no sense responsible for this change of condition of the respondent. Moreover, the respondent had been a domestic in the family of Leathers before he abandoned the petitioner, and her connection with the divorce proceedings was such as to suggest that she was not an entirely innocent party, and that she was conusant of the fraud.

But however this may be, it is incumbent upon her now to show that the ruling was clearly wrong. We are limited by the record. And the record before us fails to show that the justice who heard the case did not exercise the discretion vested in him wisely and according to legal principles.

Admissions on former trials by plaintiff's counsel concerning a set-off pleaded must be confined to the trials in which they were used, where defendant's counsel stated that they were made for the purposes of the trial, plaintiff was hostile to any admission, and there was no proof that the admissions were general.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 726-728; Dec. Dig. § 209.*]

3. EVIDENCE (§ 209*)-ADMISSIONS ON FORMER TRIALS-CONCLUSIVENESS.

Admissions made for the purposes of one trial are not conclusive upon the party making them in another trial, when such party, before the beginning of the trial, has given notice of his intention to withdraw the admissions and demand proof of the admitted items.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 726-728; Dec. Dig. § 209.*]

Exceptions from Supreme Judicial Court. Action by Jonathan Currie against E. L. Cleveland and another. Verdict for plaintiff, and defendants bring exceptions. Exceptions

overruled.

Assumpsit on account annexed to recover $1,500 cash furnished by the plaintiff to the defendants. The writ also contained a count for money had and received, and also an omnibus count. The defendants filed an account in set-off, amounting to $1,403.34. Plea, the general issue. Verdict for plaintiff for $224.85. The defendants excepted to certain rulings made during the trial.

The case is stated in the opinion. Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, KING, and BIRD, JJ.

Ransford W. Shaw, for plaintiff. Powers & Archibald and Ira G. Hersey, for defend

ants.

SPEAR, J. This is an action for money had and received, in which an account in set-off was filed by the defendants. This is the third time the case has been tried. Be fore the first trial counsel for the plaintiff and defendants met in one of their offices and agreed that upon the trial all the items in the defendants' account in set-off were ad mitted, except one large charge of $325. The case was tried upon the issue thus agreed upon, with a verdict for the plaintiff. The verdict was set aside. The case was again tried under the same agreement, with a verdict for the plaintiff. This verdict was also set aside. Before the third trial plain

that the agreement upon which the two former trials had proceeded would be abrogated, and that upon this trial the plaintiff would not admit the validity of any item in the defendants' set-off. It is not in controversy that the agreement between counsel upon which the first two trials proceeded was made in the absence of and without the consent of the plaintiff. The admissions, as above stated, upon which the case was tried at the first and second trials, were agreed upon by counsel at the third trial without the introduction of any evidence. The plaintiff's attitude towards the admissions was admitted, and stated by his counsel as follows: "Mr. Currie would not agree with me, and did not authorize me to make an agreement with my brother; but I made it just the same, without his consent. At the second trial I think it was practically agreed; but he testified, as you will find in the printed case, that that agreement was unauthorized, and I had no right to make it, and that he forbade me doing it, which he did." The Court: "But you still stuck to it?" Mr. Shaw: "I did at the time. The case came around for trial again. Mr. Currie called my attention to the fact that I had made a mistake. I then told Brother Archibald, when we had a conversation, that at this trial I would admit nothing." The Court: "So it leaves it simply a question of law whether you are bound by the former admission." The presiding justice sustained the right to withdraw the admissions, and subjected the establishment of every item of the account in set-off to the necessity of proof. In his charge he ruled that the plaintiff was not concluded, even though he admitted at the former trials that the account in set-off was all right, and was not barred from trying out the merits of the items. He further instructed the jury that the admission of the correctness of the items was a matter to be weighed by them as to whether they ought not to be allowed, and whether the plaintiff himself did not think that they should be allowed. In other words, the admissions were admitted as evidence for the consideration of the jury upon the question of fact touching the merits of the items. To the rulings of the presiding justice upon the effect of the admissions the defendants excepted. In view of the admissions at the first trial, the defendants had offered to be defaulted for $150. The plaintiff upon the third trial recovered more than $150, which, of course, affected the question of costs adversely to the defendants.

To discover the precise question raised by the exceptions, it is necessary to determine the true import of the admissions-whether they were made for the purposes of the trial, or generally, with intent to eliminate the items involved from all future consideration. poses of the admissions were agreed upon by counsel in the presence of the court and jury during the progress of the trial, and assumed the form of an agreed state

will show that the facts were entirely different and that the conclusions do not apply. In this case, as stated by the court, the admission was not limited to the trial in which

they agreed upon, or whatever either counsel asserted, if undisputed, became a statement of fact, by which the parties must be bound and the case decided. Thorndike v. Inhabitants of Camden, 82 Me. 39, 19 Atl. 95, 7 L. R. A. 463. So far as appears in the statement of counsel upon either side, the only purpose for which the admissions in question were made is found in the recitals of defendants' counsel, in which it twice occurs, once before the court and once in the presence of the jury. In each of these recitals the purpose of the agreement as to the admissions was expressed by counsel in substantially the same language. In the first he said: "And it appears of record that this admission was made for the purposes of the trial." In the second, before the jury, he used this language: "And that all of the Items of the defendants' set-off were admitted for the purpose of the trial, except the item of $325," etc. There is no evidence in the case that tends to extend the force of these admissions, as above expressed, beyond the purposes for which the defendants' counsel declared they were made. The attitude of the plaintiff himself, in opposition to the right of his own counsel to make such an agreement, and his open objection to it upon the witness stand in the second trial, conclusively prove that he never intended the admissions to extend beyond the trial at which by the action of his counsel he seems to have been compelled to submit to their use. In view of the statement of the defendants' counsel, that the admissions were for the purposes of the trial, and the hostile attitude of the plaintiff to any admission at all, without any proof whatever that the admissions were general, we think the evidence requires that they should be confined to the trials in which they were used.

Upon this state of facts, upon the approach of the third trial the plaintiff's counsel, as already seen, gave notice that he should withdraw his admissions and demand proof of every item in the defendants' account in set-off. Therefore the precise issue in this case is whether the admissions made for the purposes of one trial are conclusive upon the party making them in another trial, when such party, before the beginning of the trial, has given notice of his intention to withdraw the admissions and demand proof of the admitted items.

Upon this issue the law seems to be well settled. If not universally so held, the great weight of authority favors the rule that, where admissions by counsel are made for a specific purpose, they are to be confined to that purpose. Holley v. Young, 68 Me. 215, 28 Am. Rep. 40, is cited in opposition to this

down the rule the court say: "We think no evil results will follow if we adopt the rule that an admission made at the first trial, if reduced to writing, or incorporated into the records of the case, will be binding at another trial of the case, unless the presiding judge, in the exercise of his discretion, thinks proper to relieve the party from it." The agreement of plaintiff's counsel in the case at bar to admit certain items against the plaintiff was in effect precisely like that of counsel in Pomeroy v. Prescott, 106 Me. 401, 76 Atl. 898, in which counsel by a written admission agreed to strike out certain items from the plaintiff's account annexed, but whose action the plaintiff repudiated before trial. In this case the court held that the agreement was not binding upon the plaintiff. Therefore, if the plaintiff in the case at bar had before the first trial repudiated the agreement of his counsel, the admissions would not have been binding even for that trial; but, inasmuch as the plaintiff acquiesced in the first and second trials, it is evident that Pomeroy v. Prescott is not a full precedent, but is far more applicable in principle than Holley v. Young.

Perry v. Simpson Waterproof Mfg. Co., 40 Conn. 313, is, however, a complete precedent. In this case the facts show that upon a former trial between the same parties the counsel for the defendant, a corporation, had admitted their incorporation and that certain persons were officers of the company at a certain time. A second trial was had, previous to which counsel for the defendants gave notice of their withdrawal of the admissions at the former trial. The plaintiff contended that the admissions were binding upon the second trial. The court upon this point say: "We are quite prepared to give our assent to the doctrine insisted on by the defendants' counsel, at least so far as to hold that admission of a fact, made on and for the purposes of one trial, does not bind the party thus making it, so as to prevent him from disputing that fact at another trial." The defendant raised the further issue that the admissions were not admissible for any purpose. But upon this contention the court say: "The court admitted the testimony, and we think correctly. What occurred at the former trial, so far as it throws light on the question involved in the pending issue made up and to be decided between the same parties, must be admissible in evidence. General rules regulating the admissibility of evidence require it. If at a former trial certain facts were admitted as true, which it becomes important to prove in a subsequent trial, that such admission was made may be proved as a fact." The presiding justice in

Doyle & Lucier, for plaintiff. Hamblett & Spring, for defendant.

PER CURIAM. There was no evidence of the usual practice in the matter in controversy, and the case must be decided upon the common knowledge of mankind upon the subject. So considering it, the defendant's contention cannot be sustained. There is no statute requiring passengers to remain in the car until the station is announced, and it is not common knowledge that this is what the ordinary man would do.

Exception overruled.

(76 Ν. Η. 50)

GREEN v. MERRILL et al. (Supreme Court of New Hampshire. Grafton.

Feb. 7, 1911.)

1. APPEAL AND ERROR (§ 695*) - REVIEWQUESTIONS OF FACT-TRIAL BY COURT.

Where the evidence is not all reported on exceptions to the decree, the ruling of the court granting a decree for specific performance must stand, unless the result was produced by passion, partiality, or corruption, or the trier of fact unwittingly fell into a plain mistake.

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 2911-2915; Dec. Dig. § 695.*]

2. VENDOR AND PURCHASER (§ 78*)-BREACH OF CONTRACT-EFFECT.

Where a purchaser of land failed to pay the third and fourth installments when they became due under his bond for a deed, and the sellers notified him that, if he wanted the property, he must pay the balance and interest, but did not notify him that they would claim a forfeiture at any particular time, the failure to pay the installments when they became due did not work a forfeiture of the bond; time not being of the essence of the contract.

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. § 78.*]

3. VENDOR AND PURCHASER (§ 228*)-RIGHT OF PURCHASER-NOTICE.

Subsequent purchasers of a vendor who knew of a bond to a prior purchaser do not stand any better toward the prior purchaser than the vendor, since they are put on inquiry as to the claim of the prior purchaser.

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 495-501; Dec. Dig. §

228.*]

4. PLEADING (§ 252*) - AMENDMENT-EFFECT. An allegation in a bill for specific performance that the parties made a new parol contract after the date of the bond which was

sought to be enforced, by which the plaintiff was to receive a deed at once and give the defendant a mortgage back, is not an admission that the bond was canceled, where the bill was amended by omitting the allegation, and the case was not tried on that theory.

[Ed. Note. For other cases, see Pleading, Dec. Dig. § 252.*]

Burleigh & Adams and Smith & Smith, for plaintiff. Alvin F. Wentworth and Martin & Howe, for defendants.

WALKER, J. The ground upon which the plaintiff seeks relief is that the Merrills refuse to convey to him certain land in ac cordance with the terms of a bond which they gave him October 2, 1905. It was therein provided that the plaintiff should pay the defendants $550 for the land in installments, $100 at the date of the bond and $100 each year thereafter until the agreed sum, with interest, should be paid in full, when the Merrills were to convey the land to the plaintiff by deed. The plaintiff thereupon went into possession of the premises and paid the first two installments. He did not pay the third installment when it became due, nor the fourth, and on November 14, 1908, the Merrills notified him that, if he wanted the property, he must pay the balance of $350 and interest. No time was mentioned for the payment. Subsequently the plaintiff suggested that the Merrills convey the land to his son, upon the latter's paying the amount due, and some negotiations were carried on for this purpose; but, before they were completed, the Merrills, on January 21, 1909, conveyed the land to the defendant Sawyer, and in a few days he conveyed it to the defendant Colligan. In April, 1909, the plaintiff made a tender of the unpaid payments and interest and demanded a deed, which was refused. Both Sawyer and Colligan knew of the bond, and that the plaintiff was in possession. The defendants excepted to the refusal of the court to dismiss the bill. The court entered a decree for the plaintiff.

Upon the facts no serious question of law is presented. Much of the defendants' argument is based upon an assumed absence of evidence to support the facts found by the court; but, as all the evidence is not reported, it would obviously be useless to consider the case in that way. The ruling of the court must stand unless it appears that "the result was produced by passion, partiality, or corruption, or that the trier of fact unwittingly fell into a plain mistake." Norris v. Clark, 72 N. H. 442, 444, 57 Atl. 334. The case discloses no reason why the court in the exercise of a judicial discretion erred in finding that the plaintiff ought to. be relieved by a decree for specific performance. Though he did not pay the third or the fourth installment when they became

Bill by Charles H. Green against Joshua A. Merrill and others for specific performance. Decree for plaintiff, and case transferred from Superior Court on exception by defendant. Exception overruled.

thereby forfeited. Time was not of the essence of the contract. Ewins v. Gordon, 49 N. H. 444. Nor did the Merrills notify him that they would claim a forfeiture at any particular time if the payments were not then made, and the court finds that he did