Page:Federal Reporter, 1st Series, Volume 5.djvu/243

 NORTHWESTKEN MUT. LIIB INS. CO. V. ELLIOTT. 231 �■was obtained from the plaintiff as alleged in the bill, the trust or contract which the law raises or imglies between the par- ties is not founded on the illegal contract of Insurance, but on the obligation of the defendant to refund the money which he obtained from the plaintiff by falsehood and fraud, by the assertion and representation of a death which never took place. To state such a case is to decide it also. Indeed, it appears to me that if the defendant had robbed the agent of the plain- tiff in this state of this money on the highway, he might with as good grace defend an action to recover the stolen property, on the ground that the plaintiff was not authorized to do busi- ness in this state, as in the present case. Although the de- fendant was not authorized to do an insurance business iû this state, this fact did not license the defendant to rob or defraud it under pretence of doing such business with it. �The answer also makes the objection that the plaintiff is not capable of suing in this state, because, as alleged, it has not yetproperly compliedwith the laws of this state authorizing it to do business here. But without stopping to consider whether this objection should not have been taken byplea iù abatement, or what is the effect of the proof upon the point, it is sufficient to say that the plaintiff, being a citizen of Wis- consin, may sue in this court whether it is authorized to do business in the state or not. The state cannot deprive a cit- izen of another state of the right to sue in the national court, nor has it attempted to do so. The "business" which a foreign insurance company is prohibited from doing in this state, before complying with its laws, is the business of insurance, and not the bringing or maintaining a suit in this court, �It only remains to dispose of the question of fact : Did Jeremiah EUiott obtain this money from the plaintiff by means of false representations as to the death of Moses, as alleged in the bill ? The joint answer of Jeremiah and Arty Mesy, his wife, denies the allegations of the bill in this respect ; but, while Jeremiah was examined as a witness on his own behalf before the examiner, the wife was not produced. The reason for this omission is left to be inferred from the circumstances, but it is not improbable that the wife might verify an answer ����