delivered the opinion of the court.
In the full sense of the word, jurisdiction is power to hear and determine. Jurisdiction over a subject-matter exists by virtue of law; jurisdiction over parties is acquired in each particular action.
In England, up to the recent judicature act which went into operation November 2, 1875, the jurisdiction of courts was principally consuetudinary: an evolution out of the conditions under which civilization was there developed.
As in ancient days the king was the fountain of all authority, so he was the source of all justice. There was then the king’s court, attached to his person, which attended him in his journeys throughout the realm.
The limited power of the common-law courts, the insufficiency of the forms of action then in use, debt, covenant, trespass and detinue; the rigidity of the judges in adhering to the rules and precedents established by custom and time, as well as the increasing amount of and variety of property, called into existence the court of chancery. The office-of chancellor had been established before the Norman conquest, he being the personal adviser and representative of the crown; and there had long existed the special council, composed of the chancellor, the treasurer, the chief judiciary and others appointed by the king, a body which usually took cognizance of causes which other judges were incapable of determining. From the existence of these officials, and out of the large number of judicial complaints (actions presented to the king by the increasing wealth and activity of the nation), there arose the jurisdiction of the chancellor acting in the name and place of the sovereign. As the representative of the king he exercised grace, tempered the strict rules of law by considerations of equity, absolved suifors from engagement into which they had been induced to enter by fraud, accident or mistake, and gave remedies for which the courts of the common law were owing to the fixed nature of their proceedings inadequate.
The jurisdiction of courts of equity over cases arising out of fraud has thus been established, notwithstanding the after introduction of the actions of replevin, case, trover and assumpsit, and the creation by the common-law courts of rules permitting fraud to be set up and proven as a defense to undertakings. In England the courts of chancery have continued to insist that every case of fraud is cognizable by it, while, whether it will proceed to hear a dispute arising out of such matter, is a thing about which it exercises its discretion. Pomeroy’s Equity Jurisprudence, Sec. 912.
In England, jurisdiction of the High Court of Chancery, acting in the place and stead of the king, had not necessarily any limit but its own discretion and the custom which grew up as to the circumstances under which it would proceed to bear and determine; for both as to jurisdiction and procedure it was always and is a court for the administration of the law, not for doing that which might or may •please the chancellor. Chancery is ordained to supply, not to subvert the law. (4 Bacon’s Works, 488.) In this country, since the establishment of constitutional government, courts of all kinds have had and exercise only such jurisdiction as under the constitution is permitted (Pomeroy’s Equity, Sec. 914), and what is termed the unlimited jurisdiction that has been exercised by the English chancellors nowhere exists in the United States. Pomeroy’s Equity, Secs. 282, 914.
The United States Judiciary Act declares that suits in equity shall not be maintained in the courts of the United States in any case where plain, adequate and complete remedy may be had at law.
This enactment is but a statutory statement of the law of Illinois. Our statute, section 1 of chapter 22, provides:
“ The several circuit courts of this State and Superior Court of Cook County, in all causes of which they may have jurisdiction as courts of chancery, shall have power to proceed therein according to the mode hereinafter prescribed; and where no provision is made by this act, according to the general usage of courts of equity.”
The general usage and practice of courts of equity is, not to take jurisdiction when the complainant has a full, plain and adequate remedy at law. Coughron v. Swift, 18 Ill. 414-416; Puterbaugh v. Elliot et al., 22 Ill. 157-159; City of Peoria v. Kidder, 26 Ill. 351; Bigelow v. Andress et al., 31 Ill. 322-333; Beauchamp V. Putnam, 34 Ill. 378; Chittenden v. Rogers, 42 Ill. 95; McConnel v. Dickson, 43 Ill. 99-109; School Directors v. Miller, 54 Ill. 338; Parker v. Garrison, 61 Ill. 250-254; Comstock v. Henneberry, 66 Ill. 212; Chicago City Ry. Co. v. General Electric Co., 74 Ill. App. 465; Catholic Bishop of Chicago v. Chiniquy, 74 Ill. 317; Craft v. Dickens, 78 Ill. 131; Imperial Fire Ins. Co. v. Gunning, 81 Ill. 236; Long v. Barker, 85 Ill. 431; Shufeldt v. Boehm, 96 Ill. 560-565; Scripps v. King, 103 Ill. 469-471; Gore et ah v. Kramer, 117 Ill. 176-182; County of Cook v. Davis, 143 Ill. 151-154; Black v. Miller, 173 Ill. 489; Reedy v. Chicago Vinegar Yeast Co., 30 Ill. App. 153; Richards v. L. S. & M. S. Ry. Co., 25 Ill. App. 344-349; Durham v. Field, 30 Ill. App. 121-124; Phoenix Mutual Life Ins. Co. v. Bailey, 13 Wallace, 616; Bay City Bridge Co. v. Van Etten, 36 Mich. 210; Glastonbury v. McDonald, 44 Vt. 450; Suter v. Mathews, 115 Mass. 253; Ochsenbein v. Papilier, L. R. 8 Ch. App.; Pomeroy’s Eq. Juris. Sec. 178; Hiare v. Brembridge, 8 Ch. App. 22; Newham v. May, 9 Price 749-751; Home Life Ins. Co. v. Siliz, 81 Md. 204; Town of Venice v. Woodruff, 62 N. Y. 462; Miller v. Scammon, 52 N. H. 609; Taylor v. Wolverton, 37 Ill. App. 358-362.
In cases of concurrent jurisdiction of courts of law and equity, the fact that the legal remedy is not full, adequate and complete, is the real foundation of jurisdiction. Pomeroy’s Equity, Sections 139-220; Story’s Equity Jurisprudence, Section 33; Bispham’s Principles of Equity, p. 6-9.
In this connection it is to be borne in mind that courts of law existed from time immemorial; that the court of chancery arose out of the' inability of the common law courts to give full, adequate and complete relief; and that the court of chancery has never had any other reason for its existence; a necessity it was and is, but only because of the insufficiency of the law courts. Practically, it is of but little consequence whether courts of equity refuse to take cognizance of cases wherein the remedy at law is full, complete and adequate, because under these circumstances they hold they have no jurisdiction, or because (as in England) they affirm their jurisdiction but decline to exercise it. Pomeroy states the rule as follows :
“ The principle may be stated in its broadest generality, that in cases where the primary right, interest or estate to be maintained, protected or redressecl is a legal one, and a court of law can do as complete justice to the matter in controversy, both with respect to the relief granted and to the modes of procedure by which such relief is conferred, as could be done by a court of equity, equity will not interfere even with those peculiar remedies which are administered by it alone—such as injunction, cancellation, and the like—much less with those remedies which are administered both by it and by the law, and which, therefore, belong to its concurrent jurisdiction.
The insufficiency and inadequacy of the legal remedies to meet the requirements of justice under amr given state of circumstances where the primary rights, interests, or estates of the litigant parties to be enforced or maintained are wholly legal, constitute the foundation of the concurrent jurisdiction of equity to interfere undei those circumstances. They are the essential facts upon which the existence of that jurisdiction depends.”
It is urged that whenever fraud is charged in a bill and made the groundwork of the action, a court of equity has concurrent jurisdiction, notwithstanding the remedy at law may be full, complete and adequate. Such, as we have already seen, is not the rule laid down by Pomeroy, nor is it the practice in the United States. Gore et al. v. Kramer, 117 Ill. 176-182; Coughron v. Swift, 18 Ill. 414; Bigelow v. Andress, 31 111. 322-333-335; Imperial Fire Insurance Co. v. Gunning, 81 Ill. 236; Pomeroy’s Equity Jurisprudence, Sec. 178; Bay City Bridge Co. v. Van Etten, 36 Mich. 210; Glastonbury v. McDonald, Adm’r, 44 Vt. 450; Suter v. Mathews, 115 Mass. 253.
Mor do the equity courts of England take jurisdiction of all cases wherein they are asked so to do upon allegations of fraud. Ochsenbein v. Papelier, L. R. 8 Ch. App.; Hiare v. Bembridge, L. R. 8 Ch. App. 22.
Mot every case of fraud in a horse trade will give jurisdiction to a court of equity. Newham v. May, 9 Price 749-751.
Mor will a court of equity take jurisdiction to cancel an instrument where the complainant has a plain and adequate remedy at law. Black v. Miller, 173 Ill. 480; Reedy v. Chicago Vinegar and Yeast Co., 30 Ill. App. 153; Venice v. Woodruff, 62 N. Y. 462.
While it is true that in their endeavors to supply remedies existing because of the insufficiency of the common law courts, the early chancellors did often evade and disregard the rules of the common law—in some instances exercised criminal jurisdiction—yet for centuries it has been an established doctrine that equity follows the law, and never overrides it. Thus the chancery courts in the United States in considering the taking of jurisdiction, where there is a plain and adequate remedy at law, have, since the beginning of constitutional government, found themselves confronted by the constitutional right of trial by jury.
Arising and existing as courts of chancery have, to afford that adequate and complete relief which the common law courts could not, how, under our constitution, can they proceed to the trial of causes in which the common law power to afford adequate and complete relief is plain ?
The plain, adequate and complete relief which a court of law can afford need not be the same kind of relief that a court of equity could give in order that the latter should thus be in a position where it can ffot take jurisdiction.
If one is sued upon a promissory note to which he has a perfect defense at law, he is not entitled to an injunction from a court of equity because relief by injunction is a thing a law court can not give; nor is one entitled upon a past due note, against which he has a good defense at law, to a decree for the cancellation and surrender of the instrument, notwithstanding he can not, by a judgment at law, obtain this.
In the present case the bill alleges that there are now within, reach a number of competent witnesses by whom the alleged fraud and deceit can be proven, but that orator' fears that by death or otherwise the testimony of such witnesses may become unavailable.
If this be the case the complainant can maintain a bill to take the testimony of these persons, but when the depositions have been taken, such suit will come to an end. Jurisdiction obtained for this purpose will not be retained as to the expected controversy for use in which the depositions are taken. Pomeroy’s Equity, Sec. 211.
Is is urged that the defendant may begin suit in any State of the Union, and that when it will bring action can not be known. Each of the policies provide that suit thereon must be brought within one year after the death of the assured or no recovery can be had thereon. This is a valid contract, which the law courts will enforce. The bill does not charge that complainant is informed, believes or states that the defendant purposes to delay bringing suit or to bring it outside the limits of the State of Illinois or the County of Cook. If the insured were living, this action might be maintained; the bill would then be purely for a cancellation of policies alleged to have been obtained by fraud.
So soon as the death of the insured happened the relation of the parties changed; the contract, before that time executory as to each, became, as to the insured, executed— i. e., he had paid all agreed to be rendered by him. Thereafter the duty created by the contract rested alone upon complainant. Its promise and its obligation now is solely to pay a determined sum of money within a defined time. Nothing by way of pledge or pawn is held as security for this promise; none of its assets are tied up; it in nowise is hindered in the discharge of business by this obligation, suit upon which, when this bill was filed, July 25, 1901, would have been barred January 30, 1902, unless before that time action had been brought thereon.
The complainant was not, at the filing of this bill, in need of relief of any kind. Mary E. Shenehon was claiming that the complainant owed her $5,000; unless she brought suit thereon before January 30,1902, the claim would be barred.
Complainant had but to wait a short time and if suit were not brought before the defendant’s time lapsed, whether there were or not the fraud alleged, no recovery could be had; while if suit were brought in apt time it had a perfect remedy at law.
The present bill is a plain, undisguised attempt to deprive the defendant of an opportunity to have the alleged facts as to the procuring of the policy by fraud tried by a jury-
It can not be pretended that a judgment for complainant in a suit at law will not as fully, completely and adequately relieve it from the claim of Mary E. Shenehon as could a decree of a court of chancery.
If the complainant can succeed in this case the greater portion of all suits upon fire and life insurance policies will be swept into the equity court.
The majority of such suits are defended upon the ground of .fraud by the insured either in the procuring or after the insurance.
Her does the fact that such suit Was first brought by the complainant in a court of equity entitle it to have it' there continued and the defendant thus deprived of her constitutional right to a trial by jury.
The case is not one wherein, under the constitution of this State, the chancellor may step in and deny.to the defendant the right of trial by jury.
To abhor fraud is instinctive. The allegations of fraud contained in this bill are calculated to excite indignation, infiame passion and prejudice the judgment. One naturally feels that fraud, gross, palpable, monstrous, such as is set forth in this bill, should not be allowed to succeed—that it must be thwarted. Swayed by this feeling judges sometimes forget that these are but charges, not proof, and that however vile the meanest wretch may be painted, he is entitled to a fair hearing and to every right given by the law of the land. A court of equity will never be unjust to a defendant in order that it may do justice- to the. complainant.
It is not always easy in the face of allegations of great -wrong to pause and remember that in the administration of justice the first maxim is “ hear both sides,” and hear them before (by injunction or receiver) the rights of either have been, by judicial action, practically foreclosed, denied or sacrificed.
The order of the Superior Court granting an injunction is reversed.