HARTl<'ORD FIRE INS. CO.
We may grant that the time would be nnderstood to be one if nothing was said to the contrary. It was argued, but not proYed, that the rate of premium was fixed by sollie usage or previous course of aealing. But there is nothing to show that the apportion1aent made by Spencer, on the basis of a former policy, would have been satisfactory to Shove, and to the plaintiff, if that were enough. On the contrary, we are disposed to believe that the new part of the mill and its contents were in their minds as being the property needing insurance, and that they would have changed the provisional apportionment very materially. We are also strongly inclined to think that Shove understood thai. the risk was to begin on the following day, and that when he spoke of bringing to Spencer a "form" in the morning he lLeant a memo.. randum or scheme of the exact distribution of the risk. As to the mere farm of policy there could be no occasion to bring one, that we can see. At any rate, we cannot find a completed contract in the few words w!:Iich passed between the parties, and we could not fairly and justly apportion the loss and the salvage between real and perBanal estate, and between this company and others, upon so slight a. foundation of contract as we have before us. Judgment for the defendants.
HARTFORD FIRE INS.
(Circuit Court, D. New Hampshire.
August 20, 1883.)
!'LE.... OF LIS ALIIlI PENDENS.
A plea of lis alibi pendens is not good when the litigat;on is in a court of foreign jurisdiction.
SAME-RULE IN EQUITY AND AmlIRALTY.
This rule is modified by courts of eq:lityand admiralty, who will require a plaintiff, who has a suit pending elsewhere for the same cause and with au equally advantageous remedy, to elect which he will prosecute. S.
Whether the courts of law may attain the same end th:'ough their power of postponing actions and suspending judgments, qua:re.
SAME-ATTACIL\1ENT FROM STATE CounT.
Plaintiff brought an action at law, and defendants pleaded in ahatemeIlt that the amount in their hands due plaintiff had been attached by a trustee process from the state court by his creditors. Held, that such plea was not available, but that a continuance ex comitate should be granted in order thaL the plaintiffs in the foreign actions might have an opportunity to make their attachments available. Held, further, that the garnishce might plead judgment and satisfaction in either court as a bar to further action in the other.
Plaintiff brought .this action to recover the amount of insurance on his stock of groceries in store No. 44. :Market street, Portsm.oj.lth, de-
stroyed by fire November 28, 1882, entered in this court at the 1\1ay term. The insurance companies filed a plea in abatement, on the ground that the amount in their hands had been attached by trustee processes, by various creditors of Lynch. Frink et Batchelder, for ]fr. Page, for defendants. LOWELL, J. The defendants s8yerally plead in abatement of these actions that before the date of the writs they were summoned as trustees or garnishees of the plaintiff in three actions in the superior court of Massachusdts, and one in the supreme court of New Hampshire, which arc still pending. The plaintiff demurs. The general rule is that a plea of lis alibi pendens is not good when the litigation is in a court of foreign jurisdiction. 'IV e may regret this, but it has been repeatedly so held. This rule is modified by courts of equity and ac1r'liralty, who will require a plaintiff who has a E'llit pending elsewhere for the same cause, and with an equally advantageous remedy, to elect wLich he will prosecute. I am much inclined to think that courts of law will hereafter hold that they may attain the same end through thE-ir power of postfloning actions and suspending judgments. See the yery able opinion of a late eminent judge in McIIem'y v. Leu'is, 22 Ch. Div. 397, and of ele judges in Peruvian Guano Co. v. Roch:oldt; 23 Ch. Div. 225, cvernling Lord Dillon v. AllJares, '1 Ves. 35'7, and doubting the case of Oox v. Mitchell, 7 C. B. (N. S.) 55, if it is to be understood as deciding that a court of law will take no notice of the pendency of a foteign suit. In the case of a garnisllee process pending in a foreign court, the supreme court of New York, KEXT, C. J., decided in 18(\9, upon tlJe authority of English cases which referred to domestic actions, and upon the ground that a garnishee could not otherwise be protected, that a plea in abatement ,vas gooLl. Emlfrce v. Hmma. 5 Johns. 101. This decisir\11 ,,'as made before the law in this cOl1ntry had been settled that tbe of the states are to be considered as foreign kl each other, and the courts of the Uni-4:ed States as foreign to those of the states in this matter. It was held in Xew Hampshire, as late as 18;)0, that a plea of an action pending in the circuit court of tbe United States must be sustained. Smith v. Atla;,tic 11Illt. Fire Ins. Co. 22 X.H. 21. But, as I haye said, the law is now settled o1:11erwise. Stanton v. u3 U. S. 548. Embree v. Hm/na, ubi Slip ra , has often been cited and arproved, but I haye not found a case in ,,'hich it has been followed ,,'h£l1 the precise point was in judgment, unless it be a case in 20 How., which I sl:all presently consider. The courts, when called upon to decide the question, ha,e uniby formly held that a creditor ought to be at liberty to secure action against his debtor who may be about to become insolYent or to abscond, or who may be in collusion with the foreign plaintiff, notwithstanding an earlier foreign garnishment, and that the only protec-
LYNCH V. HARTFORD FiRE INS. CO.
tion which the defendant can require is to have a continuance of the action, or a moulding of the judgment in such a form that he should not be obliged to pay the same debt twice. This I understand to be the decided law of Massachusetts, Alabama, California, New Hampshire, Vermont, Georgia, Indiana, and Louisiana. Winthrop v. CdTlton, 8 l\Iass. 456; Crauford v. Slade, 9 Ala. 887; McFadden v. O'Donnell, 18 Cal. 160; ]Y:[c](eon v. AtcDermott, 22 Cal. il67; WadleiJ/r v. PiUsbuTy, 14 N. H. 373; Drew v. Towle, 27 N. H. 412; Hicks v. Gleason, 20 Vt. 139; Shealy v. Toole, 56 Ga. 210; Smith v. Blateh/ord, 2 Ind. 183; Carrull v. McDonogh, 10 l\Iart. G09. Judge DRAKE, in his valuable work on Attachments, cites most of these cases, and gives his own opinion emphatically in section 701, note 4, that a plea in abatement should not be allowed. He giYes rather more showof authority to the othor side than it can maintain, for he puts New Hampshire on that The other cases which he . cites in fa¥or of the plea in abatement are correctly stated by him as dicta in these words: "Similar views have been expressed by the courts of," etc. I have examined these, all except l''lcal' v. 1lJitchell, 23 Mich. 382, which is not at this moment within my reach, and they are "views" and not decisions. In the case of llIattingly v. Boyd, 20 How. 128, (CATRON, J., giving the opinion of the court,) Embree v. Hanna, which decides the point, and some other cases which contain the dicta above rererred to are cited, and the decision is that by the law of Tenne3see the statute of limitations did not run against the defendant while he was under garnishment ill a court of -Virginia, because he might have pleaded such garnishee action in abatement. The law of New Hampshi:'e, which governs the case before me in matters of pleading, is different from that of Tennessee, as I have already sho,\'ll. In the courts of this state the plea would not be ailowed, and therefore, and, as I conceive, upon a very decided weight of anthority and reasoning, it is not available in this action. I am further of opinion that, in all ordinary cases, a continuance should be gral1t ex comitate that the d plaintiffs in the foreign actions may have an opportnnity to make their attachments available. The case of seamen's wages has been held to lie an exception, for reasons of policy, in Ross v. Bourne, 14: FED. REP. 858. The garnishee, of course, must be prot6ded; bat the ground taken in EmMee v. Hanna, that his only protection is by plea in abatem6nt, is not the law at present. He may plead ment and satisfaction in either court as a bar to further action in the other. Bank of lYorth America v. Wheeler, 28 Conn. 433; Eddy T. 0' HaTa, 132 }Iass. 56. Plea in abatement oyerrulecl. Action to stand continued.
(Circuit Court, D. Rhode Island.
INSURANCE-AUTTIOTIITY OF AGEx·r.
An agent to procure insurance is not, from that engagement alone, authorized to cancel the policy.
S.UIE-CONSTHUCTION OF POLICY.
A policy of fire insurance contained provisions that" if any broker or other person than the insured had procured the policy, or any renewal thereof, or any indorsement thereon, he shall be deemed to be the agent of assured, and not of the company, in any transaction relating to the insurance;" and that" the insurance could be terminated at any time by request of the assured, or by the company, on giving notice to that effect." Held, that a notice of cancellation given to the agent who had procured the insurance, and not communicated to the assured, was not sufficient, and that such agent was not authorized to receive notice of cancellation for the assured.
Evidence that it is customary for the agent who procures a policy of klsurance on the one side, and the local agent who grants it, to receive notice of the' cancellation of policies, and notify each other in regard thereto, is admissible, but such usage must be proved by the wost clear and unequivocal evidence, and be brought home to the actUal knOWledge of the party who is to be bound by it.
At Law. C. B. Farnsworth, for plaintiff. D. B. Potter and T. Swarts, for defendants. Before LOWELL and COLT, JJ. LOWELL, J. At the trial ot this cause a verdict was ordered for the plaintiff, subject to the opinion of the court upon questions of law. The defendants, a company incorporated in New York, insured $1,500 upon the plaintiff's mill, machinery, etc., situated at Attleborough, Massachusetts, by 11 policy dated and issued October 1, 1881, payable to certain mortgagees. The plaintiff lives in Pawtucket, and the insurance was obtained by the insurance agents, Starkweather and Shepley, doing business at Providence, of E. S. Babbitt, of the same place, local agent of the defendants, and was forwarded to the plaintiff. October 7,1881, the defendants' general agent wrote from New York to l\Ir. Babbitt to cancel the policy, in virtue of the stipulation cited below, and he gave notice of cancellation to 8tarkweather ar d Shepley, who failed to notify the plaintiff, and a few days later the mill was destroyed by fire. The question is whether the notice of cancellation was sufficient. An agent to procure insurance is not, from that engagement alone, authorized to cancel the policy, (Latoix v. Germania Ins. Co. 27 La. Ann. 113; Rothschild v. American Cent. Ins. Co. 74 Mo. 41;) and it was admitted at the hearing that he is not, by law, independently of stipulation or usage, an agent for any other purpose than that for which he was employed. The defendants contend that such a ilower waf; given in the policy itself, in the following paragraphs: