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.
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
(Oircuit Oourt, 8.
n. Iowa, E. n.
Suit':fot lnfringement of Patent. Motion to vacate service. Banning;« Banning and Anderson, Davi8« Hagerman, for complainant. W.BakeweU, ;060. H.OhriJJty, NaflU. F1rench, and J. Snowden BeU, for ; .