500, 79 S. Ct. 948, 3 L. Ed. 2d 988 (1959), the Supreme Court held that the constitutional right of trial by jury under the Seventh Amendment must prevail when a common issue is involved both at law and in an equitable proceeding. The wide application of the rule there laid down is emphasized by the words of Mr. Justice Black: 'Only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.' (pp. 510-11, 79 S. Ct. p. 957.)
The Beacon case was a suit neither in equity nor at law, but a statutory proceeding under the Declaratory Judgments Act (28 U.S .C. §§ 2201, 2202), a remedy provided by Congress in which trial by jury is preserved ( Beacon Theatres v. Westover, supra, at p. 504, 79 S. Ct. 984). But the plaintiff there sought the equitable aid of injunction, just as here in a declaratory judgment suit plaintiff seeks the equitable remedy of recission and cancellation. The issue of fraudulent misrepresentation is decisive of the issue in both the plaintiff's suit and the counterclaim. For if the insured was guilty of fraudulent misrepresentation the beneficiary cannot recover. This issue it is the defendant's right under the Seventh Amendment to have decided by a jury.
Even were this a purely equitable proceeding,
and not a statutory declaratory judgment action, the Beacon doctrine tells us that the longest footed chancellor may not cross the line established by the Seventh Amendment.
The motion to suspend action on the counterclaim therefore must be denied. The case should remain on the civil jury trial list and not on the civil non-jury trial list. When it is reached for trial both the complaint and counterclaim will be tried together before a jury.
We accordingly enter the following
AND NOW, January 10, 1962, the motion to suspend action on the counterclaim is denied. Both the complaint and counterclaim shall be tried by jury pursuant to defendant's demand for jury trial.