amount of the risk should be reduced a proportionate share of the premium should he refunded," and if the whole application should be rejected it would all be refunded; that subsequently the defend· ant rejected $5,000 of said application, and on August 26, 1878, remitted to said Hebert $26.40 of said payment, and "accepted, received, and retained" the remaining $79.20 as the premium upon the first quarter of such insurance, and in consideration thereof "did insure the life of said Hebert from such time in the sum of $15,000," payable upon the death of said Hebert to the plaintiff; and also agreed "to issue and deliver unto said Hebert a 'plain life insurance policy' upon his own life, according to the customary form adopted and in use by the defendant, for said sum payable as aforesaid," which agreement it has hitherto neglected and refused to perform; that about September 8, 1878, at said county, said Hebert died, and the plaintiff thereupon demanded of the defendant said policy and the payment of said insurance, which was refused; and that, by reason of the refusal to issue said policy, the plaintiff is unable to "enforce her rights in an action at law," wherefore she brings this suit and prays the defendant may be required to deliver to her "a plain life insurance policy" upon the life of said Hebert for the sum aforesaid, to take effect from the date of the contract aforesaid, and payable to the plaintiff, and for a decree against the defendant for said sum of $15,000, with interest. The defendant demurs to the bill because (1) the plaintiff, upon the case stated, is not entitled to the relief prayed for; (2) the policy is not sufficiently described; and (3) the plaintiff has an adequate remedy at law. The jurisdiction of a court of equity to compel the specific performance of a contract for insurance is well established. The policy can- , not be obtained by an action at law, although one might be maintained upon it for the insurance after it is issued. But a court of equity having taken jurisdiction for the purpose of compelling the delivery of the policy, will retain it where there has been a loss or death, for the purpose of decreeing payment of the policy, both to avoid expense and because the latter relief is a mere incident of the former. Ang. F. & L. Ins. § 34; Perkins v. Washington Ins. Co. 4 Cow. 645; Carpenter v. M. S. Ins. Co. 4 Sandl. Ch. 408; Brugger v. S. I. Ins. Co. 5 Sawy. 304. Nor does there appear to be any uncertainty as to the nature of the contract, or the form 01' effect of the policy, as stated in the bill. The agreement was for "a plain life insurance policy" upon the life of the deceased lor $15,000, payable
NOltTHERN ILLINOIS OOAL
OF LA SALLE
to the plaintiff "according to the customary form adopted an'a in use by the defendant," for which it was paid and had received one quarter's premium. If there is any reason not appearing on the face of the bill why the defendant should not be compelled to perform its contract, as that it was procured by fraud or falsehood, the defendant can set it up as a defence. The demurrer is overruled,
NORTHERN ILLINOIS COAL & IRON Co. OF LA SALLE others.
(Circuit OOU'I't, N. D. Illinois. July 7,1882.,
1. BILL OF REVIEW-FRAUD-RIGHT TO FILE.
An original bill, in the nature of a bill of review, for fraud, may be filed as matter of right without leave of court. 2. SAME-By CoRPORATION. Such a bill, assailing a decree in a foreclosure suit against a corporation, may be filed by the corporation in its own name, after the functions of the receiver have ceased, and without first obtaining his assent.
Lawrence, Oampbell tt Lawrence and Mr. Doolittle, for complainant. Mason Brothers, for defendants. HARLAN, Justice, (orally.) On the thirteenth or fifteenth of .May,
1876, James L. Young, Mason Young, and Henry L. Young commenced in this court a suit for the foreclosure of a mortgage executed by the present complainant upon its property. A dect'ee of sale was entered March 26, 1877, and an order requiring the master to sell the property to satisfy the mortgage debt was entered April 3, 1878. The sale occurred in 1878, and the deed to the purchasers (defendants here) was approved on the twenty-seventh of February, 1880. This suit was commenced on November 7, 1881. The bill charges that the acts of the complainants in the foreclosure suits in obtaining the decree of sale, and in the conduct of the sale, conati·tuted a fraud upon the court and upon the company, and that for reasons set out in the bill the sale should be set aside. The prayer of the bill is that the decree of foreclosure be declared fraudulent and void; that an account be taken of what, if anything, is due on the mortgage; of the rents and profits received during the foreclosure proceedings, to the end that it may be ascertained whether the mort-