1. The rule at law that the pendency of a former action between
the same parties for the same cause is pleadable in abatement to a
second action, provided the actions be in courts of the same state,
holds in equity.
2. The plea of a former suit pending in equity for the same
cause in a foreign jurisdiction will not abate an action at law in
a domestic tribunal or authorize an injunction against prosecuting
The facts are stated in the opinion of the Court.
MR. JUSTICE STRONG delivered the opinion of the Court.
This was a bill by the Mutual Life Insurance Company of New York
for an injunction upon Horatio L. Whitridge, assignee of William H.
Brune, enjoining him against further prosecuting two actions at law
which he had commenced in the Circuit Court of the United states
for the District of Maryland against the complainant, upon two
policies of insurance issued by it in the name of William H. Brune,
the 18th of January, 1872, on the life of John S. Barry, one for
$20,000, and the other for $5,000.
The material averments of the bill are the following:
1. That the complainant, a New York corporation, on the 11th of
January, 1867, issued a policy of life insurance to Rosalie C.
Barry, wife of John S. Barry, for $20,000, on the life of her
husband, and on the 9th of December, 1870, issued to her a second
policy on the same life, insuring $5,000.
2. That the premiums were regularly paid until December, 1871,
and January, 1872.
3. That about the latter part of December, 1871, and the
beginning of January, 1872, an agreement was made between Mrs.
Barry, Mr. Barry, and Mr. Brune, for the assignment or transfer of
the policies to the latter, and that in pursuance of the agreement
and in accordance with a mode of proceeding before used by the
complainant in cases of insurance on the lives
Page 96 U. S. 589
of married women, the policies were permitted, with the consent
of all parties interested, except the complainant, to lapse -- that
is to say, to become forfeited -- with the intent, however, to have
the same renewed or reissued in Brune's name.
4. That, as evidence of such intention, Brune (as whose assignee
Whitridge, the defendant, claimed) united with John S. Barry in
signing a paper called "a declaration to be made and signed in case
of issuing new policy after lapse," dated Dec. 16, 1871, referring
to and adopting the original application made by Mrs. Barry for
insurance, dated Dec. 9, 1870, and signed by her; that he also
united with Mr. Barry in signing another paper, dated Jan. 12,
1872, adopting Mrs. Barry's original application for insurance,
dated Jan. 11, 1867.
5. That Mr. Barry did not undergo a new medical examination;
that no other applications were made for the two insurances (upon
which the suits were brought) than those made by Mrs. Barry in 1867
and 1870, and so, as aforesaid, adopted by Mr. Brune, and that
thereupon the two policies issued to Mrs. Barry were surrendered
6. That at the time when the original policies issued to Mr.
Barry were cancelled, two others for the same amount, on the life
of the said John S. Barry, were substituted therefor; that they
were issued to William H. Brune with like premiums and having the
same numbers as those of the cancelled policies, differing only in
the fact that the premiums were made payable semiannually, instead
of annually as theretofore, and that Brune paid up the premiums
that had before fallen due and that remained unpaid.
7. That in February, 1872, Brune assigned these policies to
Whitridge (Harris being now substituted as Brune's assignee or
trustee in place of Whitridge).
8. That John S. Barry died in March, 1872.
9. That shortly after, or about April 4, 1872, Mrs. Barry filed,
in the Supreme Court for the City and County of New York, her bill
of complaint against the complainant in this bill, and against both
Brune and Whitridge, in which she alleged substantially what is
hereinbefore set forth, and also complained that the novation of
the policies, or the lapsing and reissue as aforesaid, was without
her consent; that it was done
Page 96 U. S. 590
after her signing some paper by reason of certain persuasions of
her husband when he was embarrassed in business and disturbed in
mind; that she did not act voluntarily and freely; that Brune
acquired no rights under the said new policies, nor did Whitridge
by the assignment to him, and she prayed the company might be
enjoined against paying to Whitridge the amounts due thereon.
The bill and proceedings in the New York case were filed, and
made a part of the present complainant's bill.
10. That, as appeared in those proceedings, pursuant to an
agreement of the parties and an order of the court, this
complainant, the insurance company, deposited the sums named in the
two policies in a trust company, to the credit of the case, and the
court ordered that the complainant should be discharged, and that
the action should be discontinued as to it.
11. That notwithstanding the agreement and order and the
payment, Whitridge, the defendant, had afterwards, in September,
1872, brought two suits on the two new policies in the Circuit
Court of the United states for the District of Maryland, the same
suits the prosecution of which the complainant sought by this bill
to have enjoined.
12. That the prosecution of these suits, if successful, would
result in compelling the complainant to pay the same policies
twice, and might give to Whitridge double payment.
Most of the material averments of this bill were admitted by the
answer. It averred in addition that the original policies were
assigned to Brune as collateral securities for loans Brune had made
to Mr. Barry, and that the permitted lapse and the issue of the new
policies were intended only to make the assignment effective. It
denied, however, that the new policies were in substitution for the
policies surrendered, and asserted that they were separate and new
contracts. It admitted the execution of the agreement or
stipulation in the New York case, but alleged that it was without
Brune's knowledge or consent, and alleged also that it was not
intended to surrender or affect in any way the right of the
defendant under the two policies issued to Brune and assigned to
Such was the case when it came on for hearing, the parties
having agreed that Mrs. Barry's bill of complaint might be
Page 96 U. S. 591
read, as also the answers of Brune and Whitridge thereto, the
stipulation made in the case, the order of the court that the
company pay the amount of the policies, less the costs, into court,
a subsequent order abrogating the former and the stipulation,
together with a pending appeal therefrom.
Upon this showing, the circuit court refused the injunction
asked for, and dismissed the complainant's bill. We agree with the
counsel for the appellee that whether the circuit court erred or
not must be determined in view of the facts as they appeared when
the decision was made. But we do not admit, as it is argued, that
Mrs. Barry in her bill claimed only what was assured to her by the
original policies. She claimed a decree against the insurers, that
they should pay to her. She asserted that the original policies had
been surrendered and cancelled, and she claimed that Brune and
Whitridge were asserting rights adverse to hers. She charged in
effect that the assignments of those policies she had made had been
obtained from her by duress, through misrepresentation, and without
any present consideration. The surrender and reissue to Brune
concerted between him and Mr. Barry, the payment of the premium of
the substituted policies with Mr. Barry's dividends and money, the
identity of the numbers of the new policies with those of the old,
and the fact that the stipulated premiums were the same, adjusted
according to the age of Mr. Barry when the first policies were
granted, and paid from the times when under those policies they
were due -- were set forth as proofs that the substituted ones were
only continuations of the first insurance, and that in equity they
were her property. Neither Brune's nor Whitridge's answer, both of
which were in evidence, effectually controverted this. Brune's
substantially admitted it. In his answer he everywhere speaks of
himself as the assignee of the original policies, asserts Mrs.
Barry's assignments as the foundation of his right, alleges that
the polices were suffered to lapse and were surrendered, that they
might be renewed and continued for his benefit, and alleges
"The two policies issued in January, 1872, constituted the only
claim on the said Mutual Life Insurance Company, on account of
insurance on the life of the said Barry, and that the plaintiff has
no claim whatsoever to the
Page 96 U. S. 592
said policies, or either of them, or to the sums secured
thereby, until the indebtedness of the said Barry and of his firm,
to secure which the said policies were assigned as aforesaid, shall
have been fully paid and satisfied."
Thus the answer implies a clear admission that in equity Mrs.
Barry is the owner of the new policies, subject only to Brune's
right (whatever it may be) to hold them as a collateral
The case in the New York supreme court, therefore, involved the
same controversy as that exhibited in the two Maryland suits, and
the complainant here and Whitridge are parties in each. Alike in
the bill and in the action at law, it is a vital question whether
the insurers are liable for the sums insured by the policies of
January, 1872, and whether they are liable to Whitridge as assignee
of Brune. Hence, if there were a final decree in the New York case
against the complainant here, the present appellee would
necessarily fail in the action he has brought in Maryland. That
decree would be pleadable in bar to his suits, and the complainant
would have complete protection at law.
But the difficulty in the appellant's way is that when this case
was heard in the court below, the record of the New York case
exhibited no final decree. The order that the amount of the
policies might be paid into the trust company to the credit of the
case, and that the company should be discharged, had been set
aside, and the money paid under the order had been directed to be
returned. All that appeared, then, was that a bill in equity was
pending in a foreign jurisdiction, when the appellee's suits at law
were brought to enforce the payment of the policies to Mrs. Barry,
rather than to Brune or his assignee, and that both the present
complainant and the present defendant were parties to that
This, we think, was not sufficient to justify the injunction for
which the appellant prayed. At law, the pendency of a former action
between the same parties for the same cause is pleadable in
abatement to a second action, because the latter is regarded as
vexatious. But the former action must be in a domestic court --
that is, in a court of the state in which the second action has
been brought. Maule v. Murray,
7 T. R. 470;
2 Pet. 586; Browne & Seymour v.
9 Johns. (N.Y.) 221; Smith v. Lathrop,
Page 96 U. S. 593
The rule in equity is analogous to the rule at law. Story,
Eq.Pl., sec. 741. In Foster v. Vassall,
3 Atk. 587, Lord
Hardwicke said: "The general rule of courts of equity with regard
to pleas is the same as in courts of law, but exercised with a more
liberal discretion." In Lord Dillon v. Alvares,
357, a plea of a pending suit in a court of chancery in Ireland was
overruled in the English Court of Chancery. Certain it is that the
plea of a suit pending in equity in a foreign jurisdiction will not
abate a suit at law in a domestic tribunal. This was shown in a
very able decision made by the Supreme Court of Connecticut, in
Hatch v. Spofford,
22 Conn. 485, where the authorities are
learnedly and logically reviewed. See also
7 Metc. (Mass.)
570, and 16 Vt. 234.
If, then, a bill in equity pending in a foreign jurisdiction has
no effect upon an action at law for the same cause in a domestic
forum, even when pleaded in abatement; if, still more, it has no
effect when pleaded to another bill in equity, as the authorities
show -- it is impossible to see how it can be a basis for an
injunction against prosecuting a suit at law. It follows that the
refusal of an injunction by the circuit court was not
It is contended, however, that if the appellant was not entitled
to the injunction asked for, the bill should not have been
dismissed, but that it should have been retained until the final
disposition of the case in New York. The supreme court in that
state having first obtained possession of the subject matter of the
controversy as well as jurisdiction of the parties, it is argued,
had a right to proceed to a final determination. In view of this
fact, we concede the circuit court might have retained this bill.
It does not appear, however, that such a retention was asked. Nor
was it necessary for the purposes of justice. As we have already
remarked, if a final decree be made by the supreme court, it will,
if pleaded, be a bar in the Maryland courts, and if a judgment be
rendered in the latter, the New York court, having jurisdiction of
the parties, will be able to determine to whom in equity the