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Argument for Respondent.

191 U. S.

court would have had power to order it. French v. Hay, 22 Wall. 250; Arrowsmith v. Gleason, 129 U. S. 86, 98-101; Marshall v. Holmes, 141 U. S. 589, 599-600; Nat. Surety Co. v. State Bank, 120 Fed. Rep. 593.

Service of process was first had in the equity suit and gave the respondent the better right to proceed, if there were any question of priority involved. But there is no such question in the case, which shows two different suits, for different objects, proceeding, and capable of proceeding, concurrently in two different jurisdictions, the first judgment controlling if properly set up in the other proceeding. Buck v. Colbath, 3 Wall. 334, 345; Stanton v. Embrey, 93 U. S. 548, 553; Ins. Co. v. Brune's Assignee, 96 U. S. 588, 592; Gordon v. Gilfoil, 99 U. S. 168, 172, 178.

Concurrent suits may proceed in different jurisdictions. Gates v. Bucki, 4 C. C. A. 116; 53 Fed. Rep. 961, 965; Short v. Hepburn, 21 C. C. A. 252; 75 Fed. Rep. 113; Appleton Water Works v. Central Trust Co., 35 C. C. A. 302, 305; 93 Fed. Rep. 286; Ogden City v. Weaver, 47 C. C. A. 485; 108 Fed. Rep. 564, 568; Nat. Foundry & Pipe Works v. Oconto City Water Supply Co., 51 C. C. A. 465; 113 Fed. Rep. 793, 800; Martin v. Baldwin, 19. Fed. Rep. 340; Hurst v. Everett, 21 Fed. Rep. 218; Sharon v. Hill, 22 Fed. Rep. 28; Lehman v. Rosengarten, 23 Fed. Rep. 642; Hospes v. O'Brien, 24 Fed. Rep. 145; Ball v. Tompkins, 41 Fed. Rep. 486; Gilmour v. Ewing, 50 Fed. Rep. 656; First Nat. Bank v. Duel Co., 74 Fed. Rep. 373; Bank of Kentucky v. Stone, 88 Fed. Rep. 383, 398. Farmers' Loan & Trust Co. v. Lake Street El. R. R. Co., 177 U. S. 51, 60, 61, has no application to this

case.

This case was correctly decided upon the merits because: The testimony shows the concealment of material facts and this was in itself fraud vitiating the policy. 1 May on Ins. §§ 190, 209, 212; 1 Joyce on Ins. § 643; 2 Joyce on Ins. §§ 18441849, 1855, 1869; 1 Story Eq. Jur. §§ 215, 216; M'Lanahan v. Universal Ins. Co., 1 Pet. 170, 184, 185; Piedmont, etc., Life Ins. Co. v. Ewing, 92 U. S. 377; Sun Mut. Ins. Co. v. Ocean

191 U. S.

Argument for Respondent.

Ins. Co., 107 U. S. 485, 510; Equitable Life Assurance Co. v. McElroy, 28 C. C. A. 365; 83 Fed. Rep. 631; Manhattan Life Ins. Co. v. Carder, 27 C. C. A. 344; 82 Fed. Rep. 986; Barnes v. Fidelity Mut. Life Ins. Assn., 43 Atl. Rep. 341 (Penn.); Life Ins. Clearing Co. v. Bullock, 33 C. C. A. 365; 91 Fed. Rep. 487; Ely v. Hallett, 2 Caines (N. Y.), 57.

The defence being by way of confession and avoidance it was incumbent upon petitioner to show a full disclosure affirmatively. Underhill on Evidence, § 250; Elkin v. Jansen, 13 M. & W. 655; Carroll v. Malone, 28 Alabama, 521.

Neither the disclosure pretended nor any disclosure could have affected the company because of the circumstances surrounding the delivery of the policy, the conditions therein, and in the application, and the limitations upon the agent's authority, of all which the petitioners were cognizant or are conclusively presumed to have been cognizant. Insurance Co. v. Lyman, 15 Wall. 664; Insurance Co. v. Wolff, 95 U. S. 326; Insurance Co. v. Mowry, 96 U. S. 544; Thompson, v. Insurance Co., 104 U. S. 252, 259; Insurance Co. v. Fletcher, 117 U. S. 519; Northern Assurance Co. v. Grand View Bldg. Assn., 183 U. S. 308; Paine v. Pacific Mut. Life Ins. Co., 2 C. C. A. 459; 51 Fed. Rep. 689; Union Nat. Bank v. German Ins. Co., 18 C. C. A. 203; 71 Fed. Rep. 473; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; United Firemen's Ins. Co. v. Thomas, 27 C. C. A. 42; 82 Fed. Rep. 406; S. C., on rehearing, 34 C. C. A. 240; 92 Fed. Rep. 127; U. S. Life Ins. Co. v. Smith, 34 C. C. A.. 506; 92 Fed. Rep. 503; Davis v. Mass. Mut. Life Ins. Co., 13 Blatch. 462; 7 Fed. Cas. 141, case 3642; Lee v. Guardian Life Ins. Co., 5 Ins. L. Jour. 26; 5 Bigelow Ins. Cas. 18; 15 Fed. Cas. 1:58, case 8190.

Even if McCabe's testimony were wholly untrue and Lord had made a full disclosure to McCabe, and McCabe for his own purpose coöperated with Lord in the perpetration of a fraud upon the respondent, the petitioner could derive no benefit thereform. New York Life Ins. Co. v. Fletcher, 117 U. S. 519, 529; Northern Assurance Co. v. Grand View Bldg. Assn., 183

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U. S. 308; Maier v. Fidelity Mut. Life Assn., 24 C. C. A. 239; 78 Fed. Rep. 566; U. S. Life Ins. Co. v. Smith, 34 C. C. A. 506; 92 Fed. Rep. 503; National Life Ins. Co. v. Minch, 53 N. Y. 144; Ryan v. World Mutual Life Ins. Co., 41 Connecticut, 168.

As there was no substantial or material fact in controversy, nothing could properly have been submitted to a jury if an action at law had been instituted in the Federal court. It would have been proper to direct a verdict for respondent upon a trial at law. Pleasants v. Fant, 22 Wall. 116; Hendrik v. Lindsay et al., 93 U. S. 143; Oscanyan v. Arms Co., 103 U. S. 261; People's Savings Bank v. Bates, 120 U. S. 556.

There having been no abuse or improper exercise of discretion in taking jurisdiction, and the case having been correctly decided upon the merits, this court, following its uniform practice, should not disturb the decree. Allis v. Ins. Co., 97 U. S. 144; Lancaster v. Collins, 115 U. S. 222, 227; Rice v. Edwards, 131 U. S. clxxv, clxxvii; Mo. Pac. Ry. Co. v. Fitzgerald, 160 U. S. 556, 579, 580.

MR. JUSTICE PECKHAM, after making the foregoing statement of facts, delivered the opinion of the court.

It is contended, upon the part of the administratrix of the estate of the assured, that the court below had no jurisdiction on the ground that there existed a complete and adequate remedy (or defence) at law when the company was sued upon the policy, and that the effect of allowing this jurisdiction in the Circuit Court is to improperly deprive the defendant herein of a trial by jury.

It is conceded by the plaintiff in error that no cause of action existed in favor of the complainant herein upon the law side of the Federal court, the contention being that the company could set up, as a defence to any action brought against it in the Federal court, those allegations of fraud which, being proved, would constitute a perfect and complete defence to any action upon the policy.

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The company, however, avers that the administratrix has elected not to bring her action in the Federal court, although she might have done so on the gound of diversity of citizenship, but has, instead of so doing, brought it in the state court, and hence the company would have no opportunity of setting up its defence in a Federal court in an action brought on the policy, and it insists that on that account it has not that complete and adequate remedy or defence at law, in the same jurisdiction, which it contends is necessary in such case.

It is true that the remedy or defence which will oust an equity court of jurisdiction must be as complete and as adequate, as sufficient and as final, as the remedy in equity, or else the latter court retains jurisdiction, and it must be a remedy which may be resorted to without impediment created otherwise than by the act of the party, and the remedy or defence must be capable of being asserted without rendering the party asserting it liable to the imposition of heavy penalties or forfeitures, arising other than by reason of its own act.

It is also urged, as an answer to the claim of the company, as to jurisdiction, that even though the remedy or defence at law must exist in the same (Federal) jurisdiction, yet it is within the power of the company, if it see fit to do so, to remove the action in the state court to the Federal court, and thus its defence at law, while adequate, would also be within the same jurisdiction in which its suit in equity was commenced.

It is further insisted by the administratrix that it is unnecessary that an action at law should have been commenced in the same jurisdiction, but it is sufficient that the defence would be available and complete if such an action should be commenced in a Federal court of law.

As to the removal of the action from the state to the Federal court, the company avers that, even assuming it had the right so to remove, yet it insists that such removal would be too hazardous to the company by subjecting it to a possible revocation of its license to do business in the State to be of any adequate avail.

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It is also argued upon the part of the company that the position of a defendant in an action is not so advantageous as that of a plaintiff, as the plaintiff has the conduct of a cause largely within his own control; and it is said that the law as administered in the state court is not so favorable to insurance companies as is the case in the Federal courts, and that the company had the right to an administration of the law by the Federal instead of the state court by reason of the diversity of citizenship.

These objections are to be considered.

In Hurd's Revised Statutes of Illinois, chap. 73, title "Insurance," in relation to foreign insurance companies, it is provided: That any such company must first file a written application for a license, in which it shall state that it desires to transact the business of insurance, and that it will accept a license according to the laws of the State, "and that said license shall cease and terminate in case, and whenever, it shall remove or make application to remove into any United States court, any action or proceeding commenced in any of the state courts, of this State, upon any claim or cause of action arising out of any business transaction, in fact, done in this State," etc. The statute also provides that if any company thereafter removes or applies to remove into the United States court any action commenced in a state court of the kind above mentioned, "it is hereby made the imperative duty of the auditor of public accounts, at once to revoke, cancel and annul the license issued to such incorporated company, association or partnership; and thereafter no such incorporated company, association or partnership shall transact within this State any business for which it was incorporated until again duly licensed. In case such revocation of license shall be made because of the removal of or the attempt to remove any action from a state court of this State to any United States court no renewal of such license shall be made within three years after such revocation." Provision is also made that if the license is revoked, publication of the fact shall be made in the newspapers.

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