WESTERN LA-ND & EMItrRATIOlS
(Circuit Court, E. D. Louisiana. January 24, 1889.)
Where the same relief is asked against several defendants, and all based on the !lame transaction. and it appears that, unless they can be joined in one bill, 70 or 80 suits, all out of the same character of transacti<Jns, will have to be brought. the bill WIll not be held bad for multifariousness.
In Equity. On motion for injunction pendente lite. E. Howard McCaleb and W. H. Smith, for complainant. S. L. Gilmme and Wynn Rogers, for defendants.
PARDEE, J. This cause hItS been submitted on a motion for an injunction pendente lite. The defendant's main objection is that the bill is multifarious. The general rule with regard to multifariousness is clearly stated in Coop. Eq. Pl. 182, as follows:
"The court will not pt>rmit several plaintiffs to demand by one matters perfectly distinct and unconnected against one defendant, nor one plaintiff to demand several matters of distinct natures against several defendants."
But Mr. Cooper, in commenting on this rule, allows that there Are many exceptions. mainly for the purpose of preventing a multiplicity of ,and where the rights claimed grow out of the same trans&etion.' Justice Story. in commenting upon the same question, says:
"A bill is not to be treated as multifarious because it joins two good causes of complaint grOWing out of the llame transaction, wiJereall the defendflnts are intere'sted in the same claiw of right, and whel'e the relief asked in tela: tion to each is of the sah1e general character. * * * lndef'd . the of multifariousness, and the cil'cumstanees nnder which it will be allowed t6' prevail or nut, is in many cases, as we shall herf'after see, a matt!'r of discre.:' tion, and no general rule can be laid down on the subject." See Story, Eq';
Pl. § 2134.
In this case the same relief is asked against the several defend l1 Dts,' ) and all based upon the same transactions. Unless they can be joined in . one bill; a multiplicity of suits,-70 or 80,-all growing out of..the sl.lwe ·. character oftransactions, would have to be brought. Therefore the ob-' jection of multifariousness, in my opinion, ought not to be allowed.. On' the other grounds of opposition to the injullction pendente as for, in order 'that the question may be presented fully, and the IlUl,tW*,qtW: maintained, (without committing myself to a fixed. opinion,}Iam·in- , elined to think that the injunction should issue, and it is B? ordered,j,.
:.; ,. I)
'lJ. NORTHERN INS. CO.
«(Jircuit (Jourt, S. D. Georgia, Tv. D. January 8, 1889.)
1. INSURANCE-ALIENATION OF PROPERTy-STATUTES-CONSTRUCTION·
. Where the state statute provides that "an alienation of property insured. and a transfer of the policy without the consent of the insurer, voids the insurance. but the hypothecation or creation of a lien thereon does not v'oid it, " held. that a deed to a creditor, to secure a debt, with reservation of balance, and the right to redeem all by payment, is not such alienation.
2. SAME-CONDITION IN POLICY.
Where the destruotion of the property pledged to secure a debt would leave the debt still unpaid, the debtor in possession of the property pledged has an insurable interest therein, and the measure of his loss would be the value of the property burned. and which otherwise would have gone to reduce his indebtedness. (Byltabu., by the (Jourt.)
Where the policy stipulates as follows: "If the property be sold or transferred, or any change takes place in title or possession, the p'olicy shall be void, "-held that, in the absence of precise stipulations identifying and forbidding the transaction, the deed pledging the property to secure a debt, coupled with retention of possession by the maker, and the right to sell in usual course 'oJ Jl.i!lbusiness, and to redeem entirely by payment, is not such change of title aS,will avoid the insurance.
At Law.' Actions upon insurance policies, by M. Nussbaum & Co. against the Northern Insurance Company of London and Aberdeen and others. Bacon & Rutherford and Hill & Harris, for plaintiffs. Lyon cfc .Estes.and Du Pont Guerry, for defendants. SPEEtI.. J. ',The plaintiff has brought seven actions upon as many insurance policies against the companies issuing them. The actions are on trial (theissues in each case being the same) before the same jury. Before submitting evidence, the plaintiff has made a motion to strike certain pleas of the defendants, which are as follows:
th,e. insured, Fried & Hecht, without the consent of defendants, alienated the
.. .And for further plea the deft'ndants say they are not indebted, etc., because property insured on the 27th day of November, 1886; for that on that day the said Fried & Hecht signed, sealed, and delivered to M. Nussbaum & Co. a deed, a copy of which is hereto attached, by Which they conveyed to M. Nussbaum & Co, the title to said property, and thereby voided the said policy of insurance."
,'l'he plaintiff moves that the third ground of the plea be stricken also, because.:as therein stated, it is conditioned in the policy that, If any changetakesplace in the title of the property insured without the consento£'the d,efendant, "whether by sale, transfer, or conveyance," eaid policy shall be void, and that such change in the title did take place by the deed before'mentioned. The deed referred to is set out in full as an exhibit to the plea, and is in the following language:
"state of Georgia, Bibb County. This indenture, made the 27th day of November, 1886, between Fried & Hecht, a firm composed of Joseph Fried and Hobert Hecht, of the county of Bibb, of the one part, and M. Nussbaum