VAN DYKE, J.
The appeal is from a judgment rendered upon a guardian’s bond. The plaintiff, whose maiden name was Ceas, and who is the daughter of defendant George T. Ceas, while still a minor, became or was the owner of some property, and her father George T. Ceas was appointed by the probate court of Sacramento County as guardian of her person and estate, and in compliance with the requirement of the court, on April 2, 1883, entered into a bond in the sum of three thousand dollars, with C. P. Hensley and P. H. Gar-diner as sureties. The plaintiff having arrived at age April 30, 1897, and her father as such guardian having failed to settle his guardianship or account to her and pay over the sums in his hands belonging to her, on the 21st of June, 1900, plaintiff commenced proceedings which resulted in a settlement of his account on the 24th of January, 1901. In said settlement it was ascertained and determined by the superior court of Sacramento County that there was a balance due from George T. Ceas as guardian of the plaintiff of $3,150.47. Upon demand being made by the plaintiff of the sum found due by the court and failure and refusal on the part of the guardian and sureties on his bond to pay the same, the plaintiff thereupon commenced an action against her guardian and the sureties on his bond for the recovery of the sum of three thousand dollars, being the sum mentioned in said bond. The defendant Ceas and one of the sureties, C. P. Hensley, defaulted, but the other surety, P. H. Gardiner, appeared and defended said action. . In his answer he set up as an affirmative defense that the judgment ascertaining and settling the final account had not become final, sixty days not 'having elapsed after the rendition thereof before the beginning of said action, and that said action was therefore prematurely brought. (It appears that an appeal was taken from said judgment settling said account and the judgment affirmed.
(Guardianship of Ceas,
134 Cal. 114, [66 Pac. 187].) The ruling of the court below that the action was prematurely brought, the time for taking an appeal from the order set
tling the final account not having elapsed, was by this court held to be correct.
(Cook
v.
Ceas,
143 Cal. 227, [77 Pac. 65].)
By another affirmative defense it was contended that the action was barred by the provision of section 1805 of the Code of Civil Procedure, which defense was also sustained by the court below. But this court, however, held, that an action against the sureties of a guardian was not barred by the terms of section 1805 of the Code of Civil Procedure until three years after a final order of court removing or discharging the guardian, and that it did not appear that the guardian had ever been discharged or removed. Section 1805 of the Code of Civil Procedure,, referred to, reads as follows: “No action can be maintained against the sureties on any bond given by a. guardian, unless it be commenced within three years of the discharge or removal of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three yéars after such disability is
removed.”
In the opinion of this court on this branch it is said: “A statute of limitation ought not be enlarged in its operation by judicial construction when it is so framed as to work injustice either by itself or in conjunction with other provisions of law. In this state we have one rule which prohibits an action on the bond of a guardian’s surety until there is a final order settling the guardian’s account, and another rule barring the action in three years after the removal or discharge of the guardian. So far as its express terms require, the rule must no doubt be enforced, even where without the fault of the ward a final settlement of the account has not been obtained within three years after the removal or discharge, but neither justice nor sound policy requires that a. law capable of working so inequitably should be enlarged by construction so as to embrace a class of cases not comprehended in its terms. And this conclusion does not leave the sureties on guardians’ bonds without an ample measure of protection against stale claims. They have all the advantage of the general statute of limitations, and of the doctrine of
Barnes
v.
Glide,
117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804], which will hold wards to the rule of reasonable diligence in procuring settlement of their guardians’ accounts. In this case it does not appear whether or not there was un
reasonable delay on the part of plaintiff in seeking a settlement of the account.” And the judgment of the court below in the former action was affirmed on the ground that the action was prematurely commenced, and was remanded without prejudice to another action.
Upon the going down of the
remittitur
in the former action the present action was commenced, July 29, 1904. The defendant Ceas, and Hensley, one of the sureties on his bond, failed to appear and defend in this action as in the former. The defendant Gardiner in his answer sets up the same affirmative defenses as in the former action, and in addition thereto alleges that said action is barred by the provisions of section 337 and subdivision 1 of section 338 of the Code of Civil Procedure. The court found that no order or decree had ever been entered by the superior court of Sacramento County having jurisdiction of the matter of guardianship in question discharging or removing said George T. Ceas as guardian of plaintiff, and that the action was not barred by section 337 or subdivision 1 of section 338 of the Code of Civil Procedure. On the question raised by defendant’s answer of laches on the part of the plaintiff in commencing proceedings to compel a settlement of the account of the guardian the court finds that there was no evidence offered by either party to the action in explanation thereof, nor as to the question whether the defendant was injured or his rights affected thereby. The court in this connection finds “That the time which elapsed between the coming of age of the plaintiff and the commencement of the proceedings by her to compel an accounting by her guardian, did not amount to laches, nor affect her right of recovery herein. ’ ’
On the present appeal it is contended on behalf of the appellant that the action is barred by laches on the authority of
Barnes
v.
Glide
and similar cases, especially, however, on the authority of
Barnes
v.
Glide,
117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804], That was a proceeding in
mandamus
to compel the trustees of a swamp-land district to levy a tax to pay warrants, and the court in its opinion says: “The warrant set up in the first count of the complaint was issued, presented, and payment thereon was refused, in November, 1877; and this present suit was not commenced until November, 1895, which-was eighteen years thereafter. The-date of the
latest warrant set up in the complaint is 1881, more than fourteen years before the commencement of the action. The present board of trustees, who are made defendants, do not appear to have occupied that position for a longer period than six months prior to the commencement of the suit.
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VAN DYKE, J.
The appeal is from a judgment rendered upon a guardian’s bond. The plaintiff, whose maiden name was Ceas, and who is the daughter of defendant George T. Ceas, while still a minor, became or was the owner of some property, and her father George T. Ceas was appointed by the probate court of Sacramento County as guardian of her person and estate, and in compliance with the requirement of the court, on April 2, 1883, entered into a bond in the sum of three thousand dollars, with C. P. Hensley and P. H. Gar-diner as sureties. The plaintiff having arrived at age April 30, 1897, and her father as such guardian having failed to settle his guardianship or account to her and pay over the sums in his hands belonging to her, on the 21st of June, 1900, plaintiff commenced proceedings which resulted in a settlement of his account on the 24th of January, 1901. In said settlement it was ascertained and determined by the superior court of Sacramento County that there was a balance due from George T. Ceas as guardian of the plaintiff of $3,150.47. Upon demand being made by the plaintiff of the sum found due by the court and failure and refusal on the part of the guardian and sureties on his bond to pay the same, the plaintiff thereupon commenced an action against her guardian and the sureties on his bond for the recovery of the sum of three thousand dollars, being the sum mentioned in said bond. The defendant Ceas and one of the sureties, C. P. Hensley, defaulted, but the other surety, P. H. Gardiner, appeared and defended said action. . In his answer he set up as an affirmative defense that the judgment ascertaining and settling the final account had not become final, sixty days not 'having elapsed after the rendition thereof before the beginning of said action, and that said action was therefore prematurely brought. (It appears that an appeal was taken from said judgment settling said account and the judgment affirmed.
(Guardianship of Ceas,
134 Cal. 114, [66 Pac. 187].) The ruling of the court below that the action was prematurely brought, the time for taking an appeal from the order set
tling the final account not having elapsed, was by this court held to be correct.
(Cook
v.
Ceas,
143 Cal. 227, [77 Pac. 65].)
By another affirmative defense it was contended that the action was barred by the provision of section 1805 of the Code of Civil Procedure, which defense was also sustained by the court below. But this court, however, held, that an action against the sureties of a guardian was not barred by the terms of section 1805 of the Code of Civil Procedure until three years after a final order of court removing or discharging the guardian, and that it did not appear that the guardian had ever been discharged or removed. Section 1805 of the Code of Civil Procedure,, referred to, reads as follows: “No action can be maintained against the sureties on any bond given by a. guardian, unless it be commenced within three years of the discharge or removal of the guardian; but if, at the time of such discharge, the person entitled to bring such action is under any legal disability to sue, the action may be commenced at any time within three yéars after such disability is
removed.”
In the opinion of this court on this branch it is said: “A statute of limitation ought not be enlarged in its operation by judicial construction when it is so framed as to work injustice either by itself or in conjunction with other provisions of law. In this state we have one rule which prohibits an action on the bond of a guardian’s surety until there is a final order settling the guardian’s account, and another rule barring the action in three years after the removal or discharge of the guardian. So far as its express terms require, the rule must no doubt be enforced, even where without the fault of the ward a final settlement of the account has not been obtained within three years after the removal or discharge, but neither justice nor sound policy requires that a. law capable of working so inequitably should be enlarged by construction so as to embrace a class of cases not comprehended in its terms. And this conclusion does not leave the sureties on guardians’ bonds without an ample measure of protection against stale claims. They have all the advantage of the general statute of limitations, and of the doctrine of
Barnes
v.
Glide,
117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804], which will hold wards to the rule of reasonable diligence in procuring settlement of their guardians’ accounts. In this case it does not appear whether or not there was un
reasonable delay on the part of plaintiff in seeking a settlement of the account.” And the judgment of the court below in the former action was affirmed on the ground that the action was prematurely commenced, and was remanded without prejudice to another action.
Upon the going down of the
remittitur
in the former action the present action was commenced, July 29, 1904. The defendant Ceas, and Hensley, one of the sureties on his bond, failed to appear and defend in this action as in the former. The defendant Gardiner in his answer sets up the same affirmative defenses as in the former action, and in addition thereto alleges that said action is barred by the provisions of section 337 and subdivision 1 of section 338 of the Code of Civil Procedure. The court found that no order or decree had ever been entered by the superior court of Sacramento County having jurisdiction of the matter of guardianship in question discharging or removing said George T. Ceas as guardian of plaintiff, and that the action was not barred by section 337 or subdivision 1 of section 338 of the Code of Civil Procedure. On the question raised by defendant’s answer of laches on the part of the plaintiff in commencing proceedings to compel a settlement of the account of the guardian the court finds that there was no evidence offered by either party to the action in explanation thereof, nor as to the question whether the defendant was injured or his rights affected thereby. The court in this connection finds “That the time which elapsed between the coming of age of the plaintiff and the commencement of the proceedings by her to compel an accounting by her guardian, did not amount to laches, nor affect her right of recovery herein. ’ ’
On the present appeal it is contended on behalf of the appellant that the action is barred by laches on the authority of
Barnes
v.
Glide
and similar cases, especially, however, on the authority of
Barnes
v.
Glide,
117 Cal. 1, [59 Am. St. Rep. 153, 48 Pac. 804], That was a proceeding in
mandamus
to compel the trustees of a swamp-land district to levy a tax to pay warrants, and the court in its opinion says: “The warrant set up in the first count of the complaint was issued, presented, and payment thereon was refused, in November, 1877; and this present suit was not commenced until November, 1895, which-was eighteen years thereafter. The-date of the
latest warrant set up in the complaint is 1881, more than fourteen years before the commencement of the action. The present board of trustees, who are made defendants, do not appear to have occupied that position for a longer period than six months prior to the commencement of the suit. The warrants sued on weré issued, if at all, by other trustees who were in office from fifteen to eighteen years before this proceeding was instituted. They may have been issued illegally; the act of issuing them may have been
ultra vires;
they may not have been issued for any labor done in the construction of the works of the district; they may have been issued without consideration and fraudulently; they may be forgeries. And it is quite evident that the present defendants, after such a lapse of time, would be in no condition to make any of the defenses above indicated, when witnesses who knew of the facts at the time may be dead, or may have allowed the recollection of them to vanish from their memories. And the ’ evident purpose of the statute of limitations is to prevent such a condition of affairs, and to preclude parties from disturbing that repose which is intended to be final, after the lapse of certain periods of time designated in the statute itself. The position cannot be successfully maintained that no action could be commenced until a demand had been made by plaintiff upon the defendants to act. ... If the facts stated in the complaint in the case at bar constitute a cause of action, they constitute a cause of action which accrued, and for which an action might have been instituted, from fourteen to eighteen years before the present complaint was filed. The statute of limitations is intended to embrace all causes of action not specially excepted from its operation; and there is' no exception applicable to the present proceeding.” It will be seen from the foregoing that there is no similarity what-' ever between
Barnes
v.
Glide
and the case at bar, and the same may be said of the other cases referred to by appellant. The effect of lapse of time upon a cause of action, when the delay is unproductive of and'unaccompanied by any hardship or injustice to the other party, is determined by the provisions of the statute of limitations. In order to constitute laches there must be something more than mere lapse of the time which would bar the remedy under the statute of limitations. This subject was fully considered in
Cahill
v.
Supe
nor Court,
145 Cal. 47, [78 Pac. 467], and
Kleinclaus
v.
Dutard, ante,
p. 245. In the Cahill case it is said that “in order to bar a remedy because of laches, there must appear, in addition to mere lapse of time, some circumstances from which the defendant or some other person may be prejudiced, or there must be such lapse of time that it may be reasonably supposed that such prejudice will occur if the remedy is allowed. ’ ’ Laches, like the statute of limitations, is a defense which must be alleged and proved by the defendant, unless the facts constituting it appear on the face of the complaint, •in which case, as in the case of the statute of limitations, it must be urged by the defendant by means of a demurrer, or in some other legal manner
(Kleinclaus
v.
Dutard, ante,
p. 245); otherwise it is waived. Nothing appeared on the face of the complaint herein to indicate that the defendants, or any person excepting the plaintiff herself, did suffer, or could have suffered, any loss or prejudice by reason of her delay in proceeding to compel an accounting1 by the guardian. It is at least doubtful if any statute of limitations constitutes a bar to such a proceeding (see
Estate of Sanderson,
74 Cal. 215, [15 Pac. 753], but if there is such a statute it must be section 343 of the Code of Civil Procedure, prescribing the period of four years, which did not elapse in this case. Here there was a delay of only three years and a little less than two months, which is not of itself sufficient to raise any presumption or inference that the sureties on the bond would be prejudiced thereby. Hence it was incumbent on them to show, if they could, that some circumstances, such, for instance, as insolvency of the principal, occurred during the delay, from which loss may have been occasioned to them. Nothing having been shown, it follows as matter of law that the lapse of time alone was not laches.
1 This court on the appeal in the former action expressly held that it did not appear whether or not there was unreasonable delay on the part of the plaintiff in seeking a settlement of the account, and therefore the ease was remanded with permission to bring another action. And, as already shown, in the present action the court below finds that there was no evidence presented by either party in reference to the cause of the delay, and nothing to show that the defendant was injured or his rights affected in consequence thereof, and that the
plaintiff was not guilty of laches under the circumstances in the delay in demanding an accounting of her guardian. There having been no evidence, as shown, to support the plea of laches, the case is in no better position as far as that defense is concerned than in the former action.
In this connection the question may well be suggested whether the sureties on the bond can in any event urge a delay by the ward in instituting proceedings to compel an accounting by the guardian after she arrives at age as sufficient laches to bar an action against them upon the bond, unless in cases where the conduct of the ward has in some way misled them or caused them to delay such proceedings. They have an equal right with the ward to institute proceedings for an accounting. It is the duty of the guardian to render the account, and for the performance of that duty they have become his guarantors; so that, in some respects, his duty is their own. But, in the view we take of the case, it is not necessary to decide this question, and we leave it without expressing any opinion.
Judgment affirmed;
Shaw, J., and Angellotti, J., concurred.
A petition for rehearing in Bank was denied, upon which Beatty, C. J., dissented, and on October 20, 1905, filed the following dissenting opinion:—