Home Ins. Co. v. Stanchfield.

upon the same grounds as other contracts." It is proper to observe that he subsequently says: "A court of equity is the proper tribunal to which to apply to compel the assured to surrender a policy, fraudulently obtained." Id. pl. 1938. And Mr. ANGELL adopts his language. Fire Ins. § 384. The material cases referred to by these authors, together with other cases, will now be briefly noticed, in the order of their

Occurrence.

and a

In Whittingham v. Thornburgh, 2 Vern. Ch. 206, A. D. 1690; S. C., 3 Eq. Cas. Abr. 635, a life policy was obtained by fraud. After the loss, the court ordered the policy to be delivered up to be canceled, perpetual injunction against the verdict obtained thereon at law. This case is very briefly reported, occupying but a few lines. The grounds on which equity interfered, not only with the policy but with the verdict at law, are not stated. No point appears to have been made upon the jurisdiction in equity. In the report in 3 Eq. Cas. Abr. supra, it is said the answer confessed the fraud. In Goddart v. Garret, 1 Eq. Cas. Abr. 371, A. D. 1692; S. C., 2 Vern. Ch. 269, which was a bill to have a marine policy delivered up because the insured had no interest in the property covered by the policy, the court made a decree as prayed, although

there

appears no reason why the defense was not open to the insurer at law. No question is made or discussed as to the ground of equitable interference; and this was the case cited by counsel when MANSFIELD, Ch. J., made the observation above quoted from 3 Taunt. 517, as to the odd jurisdiction formerly exercised

by equity

over policies of insurance. In De Costa v.

A. D. 1723, the assured fraudulently concealed from Scandret, 2 P. Wms. 170; S. C., 3 Eq. Cas. Abr. 636, the underwiter information which he had that his ship was in danger. Without anything being said, in the very brief report of the case, about jurisdiction, Lord

Home Ins. Co. v. Stanchfield.

MACCLESFIELD, on a bill for injunction (against what does not appear) and relief, decreed the policy to be delivered up with costs. In French v. Connelly, 2 Anst. 454, 1794, which was a bill by underwriters for an injunction to restrain a suit at law, and for discovery and relief from the policy because obtained by fraud, the court overruled a general demurrer to the bill, and properly enough, for at all events the underwriters were entitled to a discovery to aid the defense at law. The next case which it is deemed necessary to notice is that of Duncan v. Worrall, 10 Price (Exch.) 31, 1821. In this case, a bill by the underwriters for an injunction against an action at law on the policy, and to have the same canceled because of false and fraudulent representations as to the neutral character of the property insured, "was dismissed on the ground that it was founded on matters which, if true, afforded a defense to the action at law, and therefore, there was no equity on the part of the plaintiff to warrant the interference of the court of equity."

The Lord Chief Baron RICHARDS alludes, in strong language, to his experience of over forty years respecting bills to stay actions on policies and to cancel them; said he had never known one to have been brought to a hearing, and observed: "That Lord Chief Baron EYRE, who was always, we know, considered a strongheaded man, used to say that he considered bills for discovery and injunction by underwriters in these cases, as being filed, for the most part, merely with a fraudulent intention to create delay; and I never remember one to have been acted on further than the dissolving the injunction."

Fenn v. Craig, 3 Younge & C. 216, 1838, also occurred in the exchequer, in equity. It was a bill by a life insurance company to cancel a policy on the life of a third person, obtained by the defendant by fraudulent representations as to the habits of the assured.

Home Ins. Co. v. Stanchfield.

The bill was filed promptly the next year after the insurance was made, and before the death occurred. It was held on demurrer that the bill would lie, ALDERSON, Baron, observing that the equity was strengthened because suit was brought in the lifetime of the person who was insured. This was right, and is not in conflict with the views expressed in the foregoing opinion, but rather coincident with them.

Thornton v. Knight, 16 Sim. 508, 1849, holds, that even after a verdict at law against a policy, equity will not entertain a bill to cancel it unless some equitable ground be shown, such as fraud. In India, &c. Co. 7. Dalby, 7 Eng. L. & Eq. 250, 1851, the vice-chancellor, on a bill to restrain an action at law, overruled a demurrer to the bill on the ground that there was an equity stated against the action. It is not readily perIceived what equity was stated not available as a defense to the law action; but if an equity was alleged, the case is consistent with correct principle, viz: that equity will not interfere except where the remedy at law is inadequate, difficult, or uncertain.

The foregoing are the leading adjudications on the subject under consideration in England, and it is quite a significant circumstance against the present bill, that the American reports do not show that any similar bill has been filed.

The cases in the English books show that when bills are entertained, injunctions are refused or dissolved, thus leaving the real litigation to be had at law. If the verdict is for the policy, of course the bill is dismissed. If against it, then the bill may be brought to a hearing, and the court will, in proper cases, order the policy to

be

is

surrendered-an order which, after such a verdict,

quite unnecessary and useless. The English cases referred to are not, as before observed, very satisfactorily reasoned, and are not free from conflict. The old cases are entitled to very little respect as au

Home Ins. Co. v. Stanchfield.

thority, and the modern ones tend to show that equity will not oust the law jurisdiction or interfere with the legal remedies where there is a full defense at law, and no obstacle in the way of making it. Insurance contracts should stand upon the same footing as other contracts with respect to equity interference, else we have an anomaly in the law without any reason to justify it. The result is that the motion to dissolve the injunction is well taken, and must be sustained.

MILLER, J., concurring in the foregoing result, observed: "I am entirely satisfied with the opinion prepared by the circuit judge, both with the result and the course of argument by which that result is attained. I think the turning points of the case are, that the loss had occurred before the bill was filed, and that by reason of the limitation in the policy as to the time of bringing suit, and the allegation that the defendants were threatening to sue at law, there is no danger of indefinite delay, nor is there any other circumstance alleged warranting a resort to equity. In case such a bill were filed before loss, or, in the case of a life policy, before death, I am strongly inclined to believe it should be sustained."

Injunction dissolved.

Woodson v. Fleet.

WOODSON v. FLEET.

Circuit Court, Fourth Circuit; District of Virginia, 1870.

REMOVAL OF CAUSES.-ACTION FOR MILITARY ARREST.

The operation of the acts of Congress authorizing actions commenced in State courts for acts done under authority of the president, or of any act of Congress, during the rebellion of 1861-65, to be removed to a circuit court,—explained.

A person sued in a State court for making an arrest in obedience to those claiming to be the municipal officers of the peace, and engaged in suppressing a riot, is not entitled to a removal of the cause to a circuit court,-under the act of March 3, 1863, 12 Stat. at L. 755, as amended by act of May 11, 1866, 14 Id. 46,merely because, prior to the arrest, the military officers of the United States had issued an order recognizing the persons under whom defendant acted, as lawfully vested with the local government, and declaring that they would be sustained, in the exercise of such authority, by the United States; but not directing the arrest made, or commanding any particular acts.

Motion to remand a cause to a State court.

W. W. Crump and Mr. Roller, for the plaintiff.

Bradley T. Johnson, for the defendant.

CHASE, Ch. J.-In this case, we are not at liberty to look at the merits of the controversy between the parties. The only question which we have to examine is that of jurisdiction.

The suit was originally brought in the county court of Rockingham county, in the State of Virginia, by a