court had jurisdiction to entertain a bill filed for the purpose of obtaining a decree rescinding the contract in question, and directing its cancellation and delivery to complainant at the time the original bill was filed in this suit; the assured at the time being alive, and no other remedy for wrongs averred to have been done complainant then existent. Riggs v. Union Life Insurance Company (C. C. A.) 129 Fed. 207; Conn. Mutual Life Insurance Company v. Home Insurance Co., 17 Blatchf. 138, Fed. Cas. No. 3,107; New York Life Insurance Co. v. Statham, 93 U. S. 24, 23 L. Ed. 789; Home Insurance Co. v. Stanchfield, 1 Dill. 424, Fed. Cas. No. 6,660; 2 Joyce on Insurance, § 1678; 2 Phillips on Insurance, p. 574.

It is conclusively settled that, had this suit been instituted after the death of assured, this court would not have taken jurisdiction, unless, perhaps, a state of facts peculiar and extraordinary in their nature were set forth in the bill, constituting a defense to the contract, neither available nor presentable in a court of law. Cable v. U. S. Life Insurance Co., 191 U. S. 288, 24 Sup. Ct. 74, 48 L. Ed. 188; Riggs v. Union Life Insurance Co., supra.

The question presented by this plea, as now considered, is the effect of the death of assured upon this pending suit after the commencement of an action at law upon the policy, wherein all defenses that may be made to the enforcement of the contract are available. The difference in the right of choice of forums and remedy pursued, clearly recognized and firmly established by the adjudicated cases, would appear to be controlled entirely by the date of the death of assured. Nor should this be thought strange when it is contemplated the death of the assured forms the entire subject-matter of the contract between the parties; the happening of such death eo instante transforming the contingent contract existing between the insured and insurer into an absolute engagement between the insurer and third parties beneficiary under the terms of such contract. Such being the effect of the death of the assured upon the right of the insured to proceed in equity to obtain a rescission and cancellation of the policy after death, what is the effect of such death during the pendency of a suit brought to cancel the contract, where the beneficiary at once brings an action at law on the policy, wherein complainant may make full defense?

The distinctions between the jurisdiction of courts of law and courts of chancery, as recognized and practiced in the federal courts of this country, are not merely distinctions in name or in form, but are fundamental differences of substance. Fenn v. Holme, 21 How. 481, 16 L. Ed. 198; Thompson v. Railroad Co., 6 Wall. 134, 18 L. Ed. 765; Cates v. Allen, 149 U. S. 451, 13 Sup. Ct. 977, 37 L. Ed. 804; Mississippi Mills v. Cohn, 150 U. S. 202, 14 Sup. Ct. 75, 37 L. Ed. 1052; Green v. Mills, 69 Fed. 857, 16 C. C. A. 516, 30 L. R. A. 90. “Equity is the correction of that wherein the law, by reason of its universality, is deficient." As shown by the history of the growth of chancery jurisdiction in England out of the strife which arose between the judges of the courts of law and the chancellors, there sprung the rule that, where a court of equity once rightfully obtains full jurisdiction over the parties to and subject-matter of a controversy, it will maintain such jurisdiction to the end of the controversy. While a court of equity

will not and cannot in the first instance take jurisdiction of a matter cognizable at law, wherein the procedure at the common law can give a plain, adequate, and complete remedy, because in the trial of such cases the parties, by reason of the organic law, have a right to trial by jury, and the assertion of jurisdiction by a court of chancery in such a case would operate as a denial of such constitutional guaranty, yet, where the character of the relief to which a party shows himself entitled from the history of his controversy, as by him stated, is of such nature that the law cannot grant unto him a plain, adequate, and complete remedy, in such case a court of equity has a free hand, and, having once laid hold of the parties and their controversy, it will be retained in its grasp to a final conclusion of the matter. In Morley v. White, L. R. 8 Chancery App. Cases, 734, Lord Justice James said:

"I know of no authority or principle by which it can be established that, when this court has been properly applied to because there was no adequate remedy at law, the defendant can afterwards put in a plea in the nature of puis darrein continuance, to the effect that, since he put in his answer to the original bill, he has removed the obstacle which prevented the plaintiff from suing at law. It would be a monstrous result, if, after a plaintiff had rightly commenced proceedings in this court, a defendant could say: 'I have but now removed the legal difficulty. Be good enough to dismiss your bill and sue me at law.'"

See Mollan v. Torrance, 9 Wheat. 537, 6 L. Ed. 154; North Chicago Rolling Mills v. St. Louis Ore & Steel Co., 152 U. S. 596, 14 Sup. Ct. 710, 38 L. Ed. 565; Emsheimer v. New Orleans, 186 U. S. 33, 22 Sup. Ct. 770, 46 L. Ed. 1043; German Insurance Co. v. Dowman, 115 Fed. 481, 53 C. C. A. 213; Security Trust Co. v. Tarpey, 66 Ill. App. 590.

From the foregoing considerations, I am confident in the opinion that the nature of the relief sought by complainant here is of equitable cognizance, that this court rightly acquired jurisdiction over the parties and the subject-matter of the controversy before the death of the assured, and that such jurisdiction may be retained to the end, notwithstanding the death of the assured. And the pendency of the action at law brought by the widow against complainant, even though it should be conceded, for the purpose of argument, that, in the action at law, complainant, since the death of assured and the bringing of that action, has, by way of defense thereto, a plain, adequate, and complete remedy at law.

But does the right of defense in the action at law brought by the widow against complainant, and now pending on the law side of this court, which right of present defense therein is here tendered by the plea as an equivalent to complainant for its bill filed in this suit, give complainant a plain, adequate, complete, and sufficient remedy at law, when, as will be remembered, the remedy at law which is a bar to equitable relief in the federal courts must exist on the law side of the same court, and be not only plain and adequate, but complete and sufficient? Cable v. United States Life Ins. Co., 191 U. S. 288, 24 Sup. Ct. 74, 48 L. Ed. 188; Lewis v. Cocks, 23 Wall. 466, 23 L. Ed. 70; Kilbourne v. Sunderland, 130 U. S. 505, 9 Sup. Ct. 594, 32 L. Ed. 1005; Gormley v. Clark, 134 U. S. 338, 10 Sup. Ct. 554, 33 L. Ed. 909; Allen v. Hanks, 136 U. S. 300, 10 Sup. Ct. 961, 34 L. Ed. 414; Tyler v. Savage, 143 U. S. 79, 12 Sup. Ct. 340, 36 L. Ed. 82; Walla Walla v.

Walla Walla Water Co., 172 U. S. 1, 19 Sup. Ct. 77, 43 L. Ed. 341; Smith v. American National Bank, 89 Fed. 832, 32 C. C. A. 368.

Manifestly a solution of this problem must depend upon a consideration of the rights of the parties beneficiary under the terms and conditions of the contract, and the parties to and the nature of the judgment demanded in the pending law action. As has been seen, the contract provides for a settlement between complainant and the beneficiaries in the contract, and the issuance of a new annuity contract. By the terms of the original contract, when settlement is made the first payment of $10,000 is due and payable, and the new contract agreed to be issued upon settlement of the original contract is to issue, providing, if the widow shall live for a period of 20 years from the date of such settlement and the making of the new contract, she will receive the entire sum in the 20 equal installments; if prior to the expiration of that period she shall die, and her two children shall live the remainder of the period, they will receive, under the terms of the new contract to be issued, $10,000 per annum, share and share alike. If either shall die before the expiration of that period, the other will take the share of the deceased child to the end of the period, if he shall live. However, if both shall die before the end of that period, the installments remaining unpaid will go to the executor of the estate of the assured. The pending law action-the only action at law, if any, which may be brought upon the contract at this time, if properly brought and maintainable-may determine the right of the widow to receive the installments due under the terms of the annuity contract to be issued upon the settlement so long as she may live, but the judgment in the action will not adjudicate the right of the children, or, in the event of their death before full payment made, the right of the executor of the estate to recover, for the reason that they claim on a separate, subsequent, contingent contract from that on which the plaintiff in the action claims, and are not parties to the record or privies in right. Allen v. De Groodt, 98 Mo. 159,* 11 S. W. 240, 14 Am. St. Rep. 626. What amount of the entire sum the present plaintiff in the law action may be entitled to receive is dependent upon the date of her decease. The children and the executor have no present right of action. Again, should an action at law to recover damages for the breach of the contract by complainant to issue the annuity contract bargained for be brought, how may the interest of the necessary parties plaintiff thereto be determined and shown, or how may the necessary parties plaintiff therein be determined? If, as contended by solicitors for defendants in support of this plea, the contract in suit is one for the payment of money only, all such complications as suggested could not arise. But such is not the nature of the contract made.

From a consideration of the peculiar terms and conditions of the contract in suit, and the singular relations of the beneficiary and contingent beneficiaries thereto, in the event complainant shall, without just cause or excuse, refuse a compliance with the terms of the contract as written, can the jurisdiction and power of a court of equity to compel performance be doubted? I think not. May v. Le Claire, 11 Wall. 217, 20 L. Ed. 50; Express Co. v. Railroad Co., 99 U. S. 191, 25 L. Ed. 319; 2 Story, Eq. Jur. § 728. The agreement in question to issue

the annuity contract, with terms and conditions as stipulated, is in the nature of, and may be likened to, an agreement to insure or grant an annuity. Specific performance of such contracts will be enforced. Hebert v. Mutual Life Ins. Co. (C. C.) 12 Fed. 807; Croft v. Hanover Fire Ins. Co., 40 W. Va. 508, 21 S. E. 854, 52 Am. St. Rep. 902; Carpenter v. Mutual Safety Ins. Co., 4 Sandf. Ch. 408; Wellesley v. Wellesley, 4 M. & C. 561; 5 Addison on Contracts (8th Ed.) § 2.

If the right of the beneficiaries to enforce compliance with the terms of the contract as it is written be admitted, as a necessary conclusion flowing from such admission their remedy on the contract lies in a court of equity, where such relief may be afforded, and neither complainant nor defendant has a plain, adequate, complete, and sufficient remedy at law in the action brought, or in any action at law on the contract which may be brought, for the granting of relief by way of compelling specific performance of a contract is peculiar to, and afforded alone by, a court of chancery.

Again, there exists no plain, adequate, and complete remedy at law where a multiplicity of actions are required to obtain full relief. Oelrichs v. Spain, 15 Wall. 227, 21 L. Ed. 43.

It follows from what has been said that the plea filed in this suit sets forth no sufficient facts in bar of its further prosecution, hence must be disallowed, and is disallowed.

In re HYMES BUGGY & IMPLEMENT CO.

(District Court, W. D. Missouri, S. D. June 27, 1904.)

1. BANKRUPTCY-CUSTODY OF PROPERTY-SURRENDER BY SHERIFF TO RECEIVER. The surrender by a sheriff to a receiver in bankruptcy of property which he had seized on a writ of replevin, before he has made his return, operates as an abandonment of the seizure, and the goods are not thereafter in the custody of the state court.

2. SAME SEIZURES AVOIDED BY BANKRUPTCY-REPLEVIN.

Bankr. Act, July 1, 1898, c. 541, § 67f, 30 Stat. 565 [U. S. Comp. St. 1901, p. 3450], which makes void "all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him in case he is adjudged a bankrupt," covers a seizure of property on a writ of replevin.

In Bankruptcy. On questions certified by referee.

On the 2d day of May, 1904, Parlin & Orendorff Company brought an action of replevin in the circuit court of Greene county, Mo., against the bankrupt, Hymes Buggy & Implement Company, to recover possession of certain personal property, consisting of rakes, grinders, wagons, buggies, etc., alleged to be of the value of $8,000, covering about 200 items. On receiving the writ of replevin, the sheriff on that day went to the storehouse of the bankrupt and took possession by taking the key and locking up the store. This store contained a large amount of goods of like character, marked with the name of Hymes Buggy & Implement Company, in addition to the goods claimed by the claimant. The sheriff, with the assistance of the claimant's agent on the ground, was unable to identify the goods claimed in the writ, and sent for a bookkeeper or salesman of the petitioner at St. Louis who arrived on the 3d day of May, who, with the servant of the sheriff, undertook to identify 130 F.-62

the goods claimed by the petitioner, and to make an inventory of them. This inventory was completed on that day, and handed to the sheriff perhaps on the morning of the 4th of May. On the latter day proceedings in bankruptcy were instituted by other creditors against Hymes Buggy & Implement Company, on which it was adjudged a bankrupt; and one F. M. McDavid was appointed receiver, and forthwith executed bond, and was ordered to take charge of the assets of the bankrupt estate. Thereupon, on the same day, the sheriff surrendered the possession of said goods to the receiver. Other facts will appear in the opinion of the court. Afterwards the said Parlin & Orendorff Company presented its petition to the referee in bankruptcy to have the property claimed to have been seized under the writ of replevin by the sheriff turned over to it on the ground that, the state court having first acquired jurisdiction of the subject-matter, the goods in question were in custodia legis of the state court. On hearing before the referee the petition was denied, and exceptions taken to the action of the referee by petitioner. The questions involved have been certified to the judge of the court for review.

Massey & Schmook, for claimant.

John S. Farrington and W. A. Rathbun, for trustee.

PHILIPS, District Judge (after stating the facts as above). The contention of the petitioning claimant is that the property in question was in custodia legis when the receiver in bankruptcy obtained possession under the seizure made by the sheriff in the action of replevin instituted in the state court; and that, as the state court first obtained jurisdiction of the subject-matter in controversy, it was exclusive of any right of the bankrupt court to proceed to administer the property. If the case were to be made to turn upon the question of fact and law as to whether there was an actual seizure and reduction to possession of this property by the sheriff as against the creditors of the bankrupt represented by the receiver, it would not be free from embarrassment. The referee has found that the property claimed by petitioner was mingled and confused with a large mass of other property in the storehouse of the Hymes Buggy & Implement Company, with no visible earmarks by which it was distinguishable from the mass. The only levy made by the sheriff was constructive, by taking the key to the building and locking it up, and afterwards undertaking to take an inventory. It was in fact conceded by the action of petitioner's counsel and agent that included in this mass of property in the storehouse were goods of a similar character not claimed by the petitioner, and a considerable portion thereof were by said attorney and agent ordered to be released in favor of other claimants. There was no segregation of the property claimed by petitioner, or removal thereof. Neither the sheriff nor petitioner's agent on the ground was able to identify the property claimed, and therefore this agent sent to his house for a bookkeeper and salesman, who came out to attempt this work of identification. He and the servant of the sheriff undertook this identification, and to make out an inventory, which inventory was not delivered to the sheriff until perhaps the morning of the 4th of May, the day of the institution of the proceedings in bankruptcy against the Hymes Buggy & Implement Company. This list did not correspond with the items claimed in the writ of replevin, nor accord with the list as presented in the petitioner's claim presented to the referee in bankruptcy. Under the state of proofs in the record before the court, it would be something