CHEMICAL l:IA't. BANK
'I).
KISSANE.
429
CHEMICAL NAT. BANK
(Circuit OQurt, No D. Oalijornia.
October 3, 1887.)
1.
LIMITATION OF
The fact that a debtor adds a name to his real name, removes to another state, and remains in such state under his assumed name until the cause of action against him on the dem!\nd is barred by the statute of limitations, affords no ground, under the statute of limitations of California, for enjoining the debtor from setting up the statut!l of limitations as a bar to an action at law to recover on the demand. . The statute of limitations of California applies to suits in equity as well as actions at law. The statute of limitations of California provides for every exception to the running of the statute intended to be allowed, and every case time for the running of the statute is postponed beyond the time prescril;>ed by the general provisions of the act. These exceptions are as available at law as in equity, and. the remedy at law being complete, there is no ground for equitable relief.
TO PLEAD STATUTE-EQUITY.
2.
SAME-INEQUITY.
8.
SAME.
(Syllabu8 by the Oourt.)
E. D. Sawyer and Mr. Burnett, for complainant. Garber, Thornton & Bishop and T. 1. Bergen, for defendant. Before SAWYER, J. SAWYER, J., (orally.) This is a bill in equity to restrain the defendant from setting up a plea of the statute of limitations on a demand for money said to have been fraudulently obtained from the Chemical Bank, by Kissane and two other parties, more than 30 years ago,-as far back as 1855. The complainant here files a bill to restrain the defendant from settingup the plea ofthe statute of }imitations, Kissane having been a resident of this state for 30 years. The ground for relief is, that after defendant obtained this money, he went to Nicaragua, enlisted in Walker's army, and changed his name, or rather added to his name., His name being William Kissane, he took on the name of Rogers; so that the name he afterwards went by, was, William Kissane Rogers, or William K. Rogers, as he signed it. It is alleged in the bill, that it was publicly reported, or rumored, that Kissane was killed in Nicaragua; that complainant believed that report, and therefore did not hunt for him. Complainant now says, that this change of name is a fraud upon complainant, and is a good equitable ground for restraining defendant from setting up the statute of limitations in a suit upon the demand.. Undoubtedly , the old equity doctrine before the cases were covered by statutes of limitations, was, that in a certain class of cases, a party Qould be restrained on a bill in equity from setting up the statute of limitations. On examination of those authorities, it will be found in all of them, I think, that there was some legal obstacle interposed by the party himself, ()f by the law, which prevented the prosecution of the suit. They, were
4,30
·.FEDERAL REPORTER.
not mere matters of concealment of the person, or disguise, or anything Originally of that sort. All of those cases are of the character courts of equity would restrain the setting up of the statute of limitations in causes of action arising out of fraud, until the statute had run for the prescribed time after the facts constituting the fraud were discovered; becaufil:l was, impossible to bring a suit, till the party discovered that he had a cause of action. Provisions f)f this kind in the original 'statutes of limitl\tions; they were adopted from equity practice, w;here the' was originally So,where an action was brought, a judgment obtained, and through error the party lost his suit, by a reversal of the judgment, and the suit had to be dismissed, and where'itdhe mean time the statute had run against the original demand, courts of equity interfered because plaintiff was dilIgently pursuing his remedy, but by some mistake in the proceedings, or some error, his action. He was active in maintaining his rights ,-in his endeavors to enforce them. Butth,e defendant in: such cases, by .lefending,interposed a legal obstruction to a recovery; It was thought wat the plaintiff should not, in such case, be cut off from pursuing his remedy in the proper mode. Those, and others analogous to them, are all equitable grounds set up upon which courts of equity would restrain the setting ,up of the statute of limitations, the cases, although within the letter, being deemed tl6t to be within' the spirit and purpose of the statutes of limitations. So, also, the most common: case, perhaps, for restraining the setting up. of the statute of limitations, is where the defendant has erijoined the prosecution of a suit, until the statute of limitatioIis has barred an action. In this case, the defendant himself has, also, interposed a legalobstruCltioll, and courts of equity would not permit him to avail himself of advantages thus' gained. He could not sue, because he was restrained in pursuance of law. He, therefore, should not-losehis rights; Every on6 of those cases depends upon equitable doctrines, and they have since bet-n carried intotbe statute of limitations of California. All those cases are laid down in the books. I held in Norris v. Haggin, 28 Fed. Rep. 282, and I still adhere to that opinion, that our statute provides for every case where'the statute of limitations can be made available, and for every case where the commencement of its operation will be postponed, or the time'whenit shall commence to run be delayed. It embo.dies certain exceptions to the general operation of its provisions, and these exceptions, so proVided for, are aU theexceptions intended by the legislature, and these exceptions are adopted from the 'equity practice. Our statute of limitations applies to courts of equity, as well as to courts of]aw, as is well settled by'the supreme court of the state. -See the authorithls cited in Norris v.' Haggin, IJU,pra. Tbe courlsof equity in this state, therefore, are no more authorized to interpolate into the statute other exceptions than courts of law. This Would be legislation.. The' sameprovisiol1sas to limitations, and the s:1me'exceptions as to their'general operation, or postponing their operation, or fixing the tiine When, in exceptional cases, they· shall begin to
CHEMICAL NAT. BANK V. KISSANE.
431
run, can be set up and made 'available in an action /It law, as well as in an -equity case; and the provision!!! and exceptions can be set up in equity in the same way as they can be a.t law. Hence there is no occasion togo into equity on that ground. The statute provides for allcases,and the remedy at law is complete. The statute provides for all cases, wherein the party is entitled to avail himself of an exception to the immediate operation -of any provision of the statute of limitations, as will be seen by an examination of its various sectiolls. The question of disabilities is provided for in section 352. SO,also, when a party dies before the caose -of action is barred, its operation is postponed. Section 353. Here is one: "When a person who is an alien snbject, or citizen ofa country at war with the United States, the time of the continuance of t1;;1e war is not part of the period limited for the commencement of the action." A suspension of the running of the statute upon a demand already in 'Suit, in which the judgment is reversed, and pending the suit the prescribedtime has run, is covered by section 356. 'J;'he most commqn case, perhaps, in which a court of equity interfered, and restrained the setting up of the statute, before the case was provided for by statutes, is provided for in section 356, in the following langullge: "When the commencement of an action is stayed by injunction, or statutory prohibition, the time of the continuance of the injunction, or prohibition, is not part -of the time limited for the ,commencement of the action." There are other provisions. Thusitis. clear, that the legislature intended to proimmediate of vide for every case, wherein an exception to the statute is intended, and it covers perhaps all cases, where courts of -equity would interfere, before the statute, to restrain the setting up of the statute. If it does not, it covers all cases intended, t«;> be covered,and the .court is not authorized to add others. That would be legislation. And . Hie statute appliesequa.lly' a.t law and in equity. All of these cases in .a court of equity, where the party would, formerly, be restrained,are ''Cases where there is some legal obst;lCle, or some equivalent acts in the .way of plaintiff's pursuing his .remedy. In this case, there was no legal obstacle in the .way,at all. It is true the man, in a certain sense,disguised himself by assuming an additional name; and moved. into another state; but there is no legal obstacle to instituting a suit. All complainant had to do was to find the defendant. It was well aware of the cause of action. It was its own fault, or mis, fortune, if it was unable'to find its debtor. If hadeome into this state, and gone into some of its most secluded corners, without adding a name to his own, it is not likely, he would have been found, within the time allowed by the statute. I apprehend, that no one in that case, would have set up the fact, that he could not be found till the action was barred, as an equitable ground for restraining him from availing himself of the statute of limitations. So, if being bald-headed, he should put on a wig, or cultivate his beard in such way, or wear false whiskers, {)I in some other way disguise himself, in addition to moving to another state, or while staying in some secluded spotln the state, where his ob. ligation was incurred, that would be no legal obstacle to bringing a saito