ity of one of the partners. I assume all parties acted in good faith. Relying on this appearance, the bank made no effort to make service of summons, although Templar was frequently within the jurisdiction of the court. On this judgment the bank has made a levy, and obtained a contingent lien on real estate, and seeks to subject it to the judgment. The defendant has not set out his defense, and on a hearing his defeme may entirely fail. There are precedents to justify the court in refusing to extinguish this lien, but to order a suspension of proceedings on the judgment until the defendant Templar can plead to the merits, and prove any just defense he may have to the original action. Such proceedings are recognized in HaU v. Lanning, supra, p. 167; also Denton v. Noyes,6 Johns. 296; Grazebrook v. McCreedie, 9 Wend. 437; and such will be the order in these cases.
NOTE. After dissolution one partner cannot appear for his co]?artner in a suit brought against the partners, though UpOll a firm indebtedness. LoomIS v. Pearsoll, Harp. (S. C.) 470; Haslet v. Street, 2 McCord, 311. Neither can he acknowledge service of process so as to bind his copartners. Duncan v. Tombeckbee Bank, 4 Port. (Ala.) 184; Demott v. Swaim, 6 Stew. & P. 293. Even before dissolution, one partner cannot confess judgment, or submit to arbitration, so as to bind his copartners. Stead v. Salt, 3 Biug. 101 i Adams v. Bankart, 1 Cromp., M. & R. 681; Karthaus v. 1 Pet. 222; Story, Partn. 9. 114; Pars. Partn. 179, note; Colly, Partn. 469, 470; Freem. Judgm. 232; 1 Amer.l.ead. Cas. (5th Ed.) 556. It was said by the supreme court of Pennsy,lvania recently that a confession ofjudgment by a former partner against a firm, whIle good as against the partner confessing it, will not bind property assigned by the firm to a remaining partner under terDl8 ot agreement to pay firm debts. Mair v. Beck, 2 Atl. Rep. 218.
CONNECTICUT MUT. LIFE
v. BEAK and others. 1
(Cirouit Court, E. D. North Carolina. February', 1886.)
A court of equity will not set aside a contract for life insurance during the life of the assured, on the ground that it has been rendered void by something not appearing on the face of the policy, and which can be proved by extrinsic evidence. As the assured, who is now intemperate, may reform, and live out the ordinary expectation of life, this is not a case for the ordinary exercise of the discretionary power of a. court of equity to order a cancellation, even if BUch power here existed. ,
SEYMOUR, J. This is a bill for the cancellation of a policy of insurance upon the life of the defendant S. Bear, in fllovor of the other
Reade, Busbee cE Busbee, for complainants. Russell d; Ricaud, for defendants.
by John W. Hinsdale, Esq., of the Raleigh bar.
CONNECTICUT MUT. LIFE INS. CO. fl. BEAB.
defendants, and the relief prayed for is put upon two grounds: Fir,t, an alleged false representation of his habits with respect to the US8 of spirituous liquors made by him in his application; and, secona, an impaired condition of health caused by habitual drunkenness since the issuance of the policy. The-evidence does not prove the alleged fraud which constitutes . the first cause of action. Upon the second, it tends to show that the health of the defendant has been seriously impaired by the use of drinks j that, if he shall continue in his present course of life, it is not probable . that he will live to the age of ordinary expectation; and that, if he reform, nothing that has yet occurred will prevent his attaining to it. There is some evidence teuding to show a recent change in'his habits. The contract of insurance contains a condition that, "if the insured shall become so far intemperate as to impair his health," the policy "shall become and be null and void." The court is of the opinion that the insured has become so far intemperate as to impair bis health, and the question fop determination is whether the plaintiff is entitled to relief in equity. It cannot be granted on the ground of fraud, for that has not been proved. The action must rest, if supported at all, on the jurisdiction of a court of equity to declare and establish it right. The question is whether, during the life of the assured, a court of equity will set aside a contract of insurance, the ground that it has been rendered void by something not appearing on the face of the policy, and which can be proved by extrinsic evidence. There are many reasons, which may be, and some of which have been in this case, urged in support of such action. The ordinary course of juries. in suits against insurance companies; the force with them of the argument that a company, having received the premiums during the life of the insured, ought not in justice to refuse payment after his death; the convenience of trying, while the evidence is eaBily accessible, the issue of the misconduct of the assured, - are inducements which would be very powerful were I passing upon the question asa lator. As a judge, I am bound by precedent. No case can be cited in which a policy has been set aside during the life of the assured on of the contract. the ground of a forfeiture occurring after the In Insurance Co. v. Bailey, 13 Wall. 616, a doubt is expressed as to whether it could be done in a case of a policy fraudulently obtained. In theory, if not in practice, the legal remedy is complete. The company may avail itself of it when sued. No division of the powers of courts of equity includes such a source of jurisdiction. A bill of peace can be brought only to avoid multiplicity of actions; a bill quia timet, except in certain cases under state statutes, only by one in possession of land, to remove a cloud in his title. This action is of the first impression, falling, as I have said, under no recognized title of equity.
There is further objection to it. If the court could grant the relief asked, it would come within its discretionary power. Since, in a case like this, it does not, and in the nature of things cannot, appear that the defendant may not reform, and live out the ordinary expectation of life, it is·not, as matter of law, in the opinion of the court, a proper case for the exercise of the discretionary power to order a cancellation, even if such power existed.
(Oircuit Oourt, 8. D. New l'ork.
February 13, 1886.)
NEW TRIAL-VEBDIOT NOT SUSTAINED BY EVIDENOE-PROVINCE OF COUBT.
The weight of the evidence is for the jury, if there is a.ny to support plaintiff's ca.se; but whether there is a.ny or not 1S for the court.
At Law. W. Hildreth Field, for plaintiff. David Willcox, for defendant. WHEELER, J. The plaintiff was in the employ of a mercantile house in New York, at $6,000 a year. The defendant had $48,531.07 of commercial paper of western firms, some months overdue and unpaid, in the discharge of which one Thacker was interested. The plaintiff's employers had $13,544.90 of like paper, and two other banks of the city enough more to make $90,376.05 in all. The plaintiff was informed by Thacker that he wished to get this paper taken up through a mercantile house, and not through attorneys, and a proposition to pay $17,000 in cash, and to give $3,000' in se· cured notes and unsecured notes for the balance, was left with him. This proposition was taken by the plaintiff to all the others, who agreed to accept it, and then to the officers of the defendant, who refused. They mentioned terms to the plaintiff which they would advise aooeptance of, if made. The plaintiff communicated these terms to Thacker, who came, and, in company with plaintiff, had an interview with the defendant's officers on the subject. Afterwards he sent a proposition of 25 per cent. in cash, and the balance in unsecured notes, and the plaintiff took this to defendant's officers. They told him to get another firm, who held $11,000 of similar pa. per, to pool their claim, and the propositioJl would be accepted. He got that firm to do so by paying them $250, and the proposition was accepted. The amount of the 25 per cent. of the whole was sent by Thacker to the defendant, and placed to his credit. lJ.'he $250 paid out by defendant was deducted; the proportion of each was computed; Thacker's checks, payable to the order of the plaintiff, were drawn for the respective shares, except that of defendant, and indorsed by