Page:Federal Reporter, 1st Series, Volume 8.djvu/191

TBEFZ V. ENICEEBBOCEES UFE INS. CO. OF NBW TOBE. 177 �Teefz V. Kkiokebbookeb Life Ins. Co. of New Toee. �{Circuit Court, D. New Jeriey. 1881.) �1. JuBiSDiCTioN — Fraud. �A court of equity will grant relief against a judgment at law on the ground of fraud, whether the fraud was in the transactiollj or the instrument on ■which the action arose, or in the trial and the mauuer of obtaining the judg- ment. �2. Sajibt-Pbactice in Equitt — Bills for a New Thial. �It is the practice in equity, when the prayer of the bill is for an injunctiop and for general relief, after a judgment at law, unless the case discloses some defence peculiarto courts of equity, and which would be unavalling at law, to set aside the judgment, and leave the parties to a new trial in the original forum. In efEect, such a bill is an application for a new trial. �Coult e Howell, for defendant. �A. Q. Keashey d Sons, for complainant. �Nixon, D. J. The bill is filed in this case by the complainant to set aside a judgment recovered in this court at the term of Septem- ber,' 1877, on the ground that it was obtained by fraud. The defend- ant has put in a general demurrer, which admits all the material averments of the bill of complaint. The only question, therefore, is, are these sufScient to maintain the suit? �The bill alleges that on the twenty-seventh of September, 1877, the defendant recovered a judgment against the complainant for the sum of $12,201.01, in an action of assumpsit, which was founded upon two policies of insurance on the life of her late husbund, Chris- topher Trefz, one for $2,500 and the other for $8,500, both issued Sep- tember 6, 1873, in favor and for the beneat of his wife, the defend- ant ; that the policies on which the judgment was obtained had been received in exchange for two prior policies — one for $3,000, issued May 25, 1867, and the other for $10,000, issued March 18, 1868; that upon issuing the two later policies it was agreed, in writing, between the defendant and her husband and the complainant, that the statements in the application for the former policies were true, and were the basis for the contracts of the policies ; and that it was expressly provided that the new policies were granted on the faith of said statements, and that if any of them were untrue, the said poli- cies should be void; and that they should be void if the deaih of the insured should be caused by the habituai use of intoxicating drinks ; and that among the statements that thus formed the basis of the new contracts, and on the faith of which they were made, were assertions v.8,no.4— 12 ��� �