Page:Federal Reporter, 1st Series, Volume 8.djvu/195

TREFZ V. KNICKERB0CKI2B lilB'E' INS. CO. OF NEW TOBE. 1?1 �tained, on what is believed to 'be abundant proof, that the assured, Trefz, for a long time prier to 1873, when he obtained the new- poli- cies of Insurance, had been a confirmed and habituai drunkard, atid had greatly impaired bis health by gross habits of intoxication, whieh rendered him liable to the sun-stroke, the concealment of which was the ground of defence urged on the trial ; that the defendant, Ohris- tina Trefz, when the policies were renewed in her favor, well knew the pbysical situation and habits of her husband, and that the re- newal was obtained by the fraudaient concealment thereof from the complainant; that the said habits of intoxication continued and in- creased constantly after the policies were issued, and caused the death of the insured during the year 1876; that he was in the constant habit of being drunk day by day, and became subject to delirium tremem, which rendered him very violent in his family, rapidly under- mined his health, and speedily caused his death ; that the defendant was perfectly aware of his condition, but expecting to obtain the amount of the policies upon his anticipated death she took pains to conceal his condition from the public, and especially from the agents of the complainants, who, as she knew, were making strenuous efforts to obtain proof of the facts, which were suspected but net actually known, in order that they might be proved upon the trial ; that the physicians who had attended him, and who were well aware of his condition and habits, had died shortly before the trial, and she, know- ing that the facts could not be reached through them, concealed as far as possible his true condition from the physicians who attended him towards the close of his life ; that as soon as these facts were discov- ered the complainant obtained the several affidavits of Christina Sitz- man, Catharine Engle, and Frank Ehehalt, tendiug to establish the foregoing material allegations of fraud, which were first used in the court on an application for a new trial, and are now annexed to the bill of complaiat and form a part thereof. Whilst the demurrer of the defendant does not admit the truth of the mere pro forma charge of fraud in obtaining the judgment at law made in the complainant's bill, it does admit the truth of every fact slated which goes to estab- lish the fraud; and if the foregoing statements must be accepted as true, they are quite sufficient to justify the court in enjoining all further proceedings upon the judgment until at least some further investigation into their truth can take place. �2. There is more difficulty about the question of the use of due dili- gence. I wish that the bill had been more speciuc in this regard. It iterates and re-iterates its use, but I should have been better satis- ��� �