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
482
FEDERAL· REPORTER.
It would be simply throwing a difficulty in the way of find!ng, or recognizing, the'man. So, taking on an additional name is only another element of the same kind 'of disguise. It interposed no legal impediment to the pursuing of the remedy, provided he should be found. It might make it more troublesome to find him. I think, therefore, it is not a case under our statute, or upon equitable principles established before the statutes, covering the points upon which the party can be restrained frhm setting up the statute of limitations. The taking on of another name is an act of disguise, and of secretion, but it interposes no legal impediment. Then, again, the bill, I think, does not allege any diligence in hunting him up. See Norm v.Haggin, supra. The bill states that it was rumored, or supposed, that defendant was killed in Nicaragua, and iiItimatesthat; perhaps,he,caused the rumor to be spread. If comi plainant believed public rumor, without taking the trouble to verify its truth,and failed to pursue'its rights for that reason, that is its misfor'tune, or its fault. The defendant has lived openly and publicly in one ·of the most'frequented parts of the state for 30 years. It is scarcely possible that he has not met of people who knew him under the · name of Kissane during the last '80 years. Even imbecility of the creditor is stated by Story not to afford any excuse in equity for not commencing a suit within the time prescribed by the statute of limitations. Story, Eq. Jur. 1521a; Norris v. Haggin, 28 Fed. Rep. 282. Much less should a failure to hunt for a debtor by reason of belief in a public rumor that he is dead excuse neglect, and abrogate the statute. . Then, again, there is a technical ground against maintaining this bill. There is no allegation, that complainant ,has commenced a suit at law, or that defendant has attempted to set up the statute of limitations, or · that he has even intended to set it up, should a suit be commenced. Non constat that he would setH up. Complainant cannot know that he will do it, until it commences a suit and ascertains. There is no allegation of a threat to set it up. The bill only allell;es that complainant believes the statute would be set up; This is insufficient. I do not think that complainant's belief, or fears, without some facts indicating the purpose of defendant, can' com.titute equitable grounds for relief. But there is no equity in the bill, and the objection is radical, and cannot be obviated by amendment. The demurrer must be sustained, and the bill dismissed; and it is so ordered.
.RERKLOTZ
V.
CHASE.
433
HERKLOTZ and another v. CRASE. (Ot'rcuit Oourt. S. D. New York. September SO, 1887.) 1. COURTS-PRACTICE IN FED:ElRAL
The provisions of Rev. St. U. S. § 914. conforming the practice. pleadin/;s. etc., in the federal courts. to such as are followed in the state courts, do not adopt the state law allowing equitable defenses in a legal action.
DEFENSE AT LAW.
S. ·
8.
In Itn action on a p:\'omissory note by the payee against the maker. one graph of the answer averred that the plaintiffs and defendant had had varIOus dealings i;n the sale of produce; that. at the time of thll delivery of the note. plaintiffs falsely represented that they had bought certain prod)lce for defeI1dant; that there had been il. depreciation in the market. and that the defendant was indebted to them in the amount of the note which was made and delivered, relying upon said representations; that these representations were . wholly untrue; and that there was not at the time of the making and delivery 'oithe note any indebtedness from the maker to the payee.' Held, on motion to strike out the paragraph on the grounds that it asked for equitable relief, and aUegeql;lp cause of action, that the defense set up was "no considera.tion." , which. if established. was a valid defense at law. pr;:ElADING-MoTION TO MAKE MORE CERTAIN.
ACTION-EQUITABLEDEF:ElNSE AT LAW-WHAT CONSTITUTES.
A Diotion to make l!uch'paragraphlilore definite and certain will not be entertained' as the failure of consideration is distinctly averred, the transactionlil out of which the indebtedness. if any, arose are as familiar to the plaintiffs as the defendant. and the of the note. would lay the burden of proving failure of consideration on the defendant.
At Law. On motion to strike out or make more definite certain paragraphs of the answer. T. Hemry Dewey, for plaintiffs. F. W. Angel, for defendant. LACOMBE, J. The separate defense and counter-claim set up in paragraph 7 of the answer asks for equitable relief. The cases from the statecourts cited by the defendant do not apply, it being abundantly settled by authority that the provisions of section 914, Rev. St., conforming the practice, pleadings, etc., to such as are followed in the state courts, do 'not adopt the state law allowing equitable defenses in a legal fiCtion. Montejo v. Owem, 14 Blatchf. 324; Myrick v. Roe, 31 Fed. Rep. 97; Ch-urch v. Spiegelburg, ld. 601. The motion to strike out this defense and counter-claim ·is therefore granted. The plaintiffs also move to strike out the separate defense set up in paragraph 9 ofthe answer, on the ground that it asks for equitable relief, and for the further reasOn that no cause of action is therein alleged, or that the same be made more definite and certain. The action is brought by the payee of a promissory note against the maker. The answer admits making and delivery of the note, avers that plaintiffs are not bona fide holders for value, but received the same with notice, and without parting with any consideration or value t.herefor. Then follows paragraph 9, the subject of this motion. It avers that plaintiffs and defendant had had various dealings in the sale of produce; that, at the time of the delivery of the note, plaintiffs falsely represente.d that they v.32F.no.7-28