It is true the clerk and officer, if they have not been paid, can sue the party; so can the attorney. The plaintiff evidently supposes that he has a lien, not only for the costs taxed to the attorney of the successful party, but for his charges and for all his services, sometimes called fees, as he claims a lien for costs in cases where a party recovers debt or damages only and no costs. It might possibly be for the public good if this was the law. If a man when he began a lawsuit knew that having employed an attorney he could not dismiss him, and that after he had gained his case he would be obliged to have another lawsuit with his own attorney to get his money from him, and so on again, it would tend very much to diminish litigation, and a defendant would get out of such a suit as quickly as possible. It might also make parties more cautious as to choosing attorneys on whose honor they could rely. The client in the present case may have shown a disposition to defraud his attorney of his reasonable dues for his services. But we are now only concerned with the general rule. settled very early. And it should be considered that the jurisdiction of the King's Bench is almost without limit, and that they can do things which would not be allowed in our courts. In this country the practice has varied very much. See Story on Agency, § 383. In most of the cases usually referred to the lien is either given or recognized by statute. In New York it is recognized by statute, but only as to the costs taxed to the attorney and not for services, and it is enough to show how far they have carried the doctrine of the power of an attorney, to refer to a case, Anon., 1 Wend. 108, where the court is represented (?) as laying it down generally that the client could not control the attorney in the conduct of the suit. If the court only intended to say the client could not oblige his attorney to argue a point which he knew was against the settled law, which was that case, or to say that no attorney could be compelled by his client to do any thing that would injure his professional reputation, it was reasonable enough, and the attorney should exercise a discretion in this. Within my own experience, I have known lawyers to make points in a case almost as a matter of desperation, and to succeed by them. There is hardly any nonsense for which some authority cannot be found in a large law If any attorney should be entitled to a lien upon a judgment for money for any thing beyond his taxable costs, it would seem that he ought to have the same lien where the recovery is for land. See this question decided and a great number of cases quoted in Hum-library. phrey v. Browning, 46 Ill. 476. The lien claimed for the attorney is no part of the old common law. See Getchell v. Clark, 5 Mass. 309; Baker v. Cook, 11 id. 236, 238; Simmons v. Almy, 103 id. 33. A great deal of confusion may arise from not distinguishing between the costs taxed to the attorney and his charges for services. In many States there are costs taxed as between attorney and client, whereas we have none such here. And in countries or States where such a lien is held to exist the cases generally recognize that it extends not to counsel fees proper, but to the taxed costs only. Ocean Insurance Co. v. Rider, 22 Pick. 210; Wright v. Cobleigh, 21 N. H. 339. In England the so-called lien is comparatively modern, and it seems from Comyn's Dig., Attorney, B. 11; see, also, B. 16, to have been founded on an old rule of court. Pr. Reg. 2, 4, implying that a client cannot discharge his attorney without leave of court, evidently intended in part to protect the attorney's costs. See, also, Bacon's Abr., Attorney, E. But its main purpose may have been to compel the party to notify the court of a change of attorney, that the court and opposite attorneys might always know whom to serve papers, orders and notices upon. In Mitchell v. Oldfield, 4 Term Rep. 123, A. D. 1791, Lord Kenyon said the lien depended on the general jurisdiction over the suitors. Buller said that the court had before laid down the rule that they would not interfere to prevent the client from settling his own case without first paying his attorney. But in that case a rule was made for payment of the costs. In Wilkins v. Carmichael, 1 Doug. 101, 104, A. D. 1779, Lord Mansfield said that the lien upon papers was not very ancient, but the court had now carried it so far as to stop the payment of money to the client until the attorney's bill was paid. The counsel in the case mentioned the first instance of such an order. In Welsh v. Hole, 1 Doug. 238, Lord Mansfield said the attorney had a lien on money received for his bill of costs. If it came to his hands he could retain it, or he might apply to the court and they would prevent its being paid over until the attorney's bill was paid. But he was inclined to go still farther, and to hold that the attorney might give notice to the defendant, etc. But he thought they could not go beyond that. In that case the plaintiff compromised the case and the court sustained it. These cases show that the English practice was not And in St. John v. Diefendorf, 12 Wend. 261, the New York Supreme Court held, that until notice given, the officer could pay the attorney's costs to the plaintiff without incurring any liability to the attorney. Platt v. Jerome, 19 How. (U. S.) 384, was a case from the New York Circuit Court. In the Circuit Court, Jerome had judgment for costs only and became insolvent. The parties settled the case and agreed that the writ of error should be dismissed. Jerome's counsel opposed the dismissal, and claimed a lien on the judgment for his costs. Nelson, J., says: "It is quite clear he can have no lien for any costs in this court, as none have been recovered against the plaintiff in error. * * * The court looks no farther than to see that the application for the dismissal is made by the competent parties, which are usually the parties to the record. * ** He is not a party to the suit, nor does he stand in the place of the party in interest. He is in no way responsible for the costs of the proceedings, and to permit him to control them, would, in effect, be compelling the client to carry on the litigation at his own expense, simply for the contingent benefit of the attorney." The cause had been dismissed and the motion to restore it was denied. In Pulver v. Harris, 52 N. Y. 73, 76, the court held that the suit was subject to the control of the party; that the attorney had a lien after judgment, but not before. The latter would prevent the party from settling his case; and see Simmons v. Almy, 103 Mass. 33; Averill v. Longfellow, 66 Me. 237. In Massachusetts the lien was evidently derived from statute originating in 1810. The provision in the Massachusetts Digest of 1860, ch. 121, § 37, substantially, I believe, the same, provides that an attorney lawfully possessed of an execution or who has prosecuted a suit to final judgment for his client shall have lien thereon for the amount of his fees and disbursements in the cause, but this shall not prevent the payment of the execution or judgment to the judgment creditor without notice of the lien. The Massachusetts courts have expressly recognized that there was no such lien at common law; Baker v. Cook, 11 Mass. 236, 238; Getchell v. Clark, 5 id. 309; that it depends on the statute of 1810; Baker v. Cook, ante; Dunklee v. Locke, 13 Mass. 525; and that although it speaks of fees and disbursements, refers to taxable costs only, and does not include counsel fees; Ocean Insurance Co. v. Rider, 22 Pick. 210; and in Getchell v. Clark, ante, the power of the plaintiff to settle before judgment or settle afterward is fully recognized. In In re Paschal, 10 Wall. 483, which was a case from Texas, the court, while recognizing a lien for disbursements and professional services also, allowed the attorney to be changed before his costs were paid, saying that the party was amply able to respond to whatever he might recover. I have made these remarks upon the doctrine in general, and also to its extent in England and in this country, because they have no bearing on the question before us, and as showing the conflict of decisions, and that they depend very much on local law and usages. In Forsythe v. Beveridge, 52 Ill. 268, the Supreme Court held that there could be no lien except when statutes or rules of court allowed specific fees as taxable costs. A portion of their opinion is worth quoting. "But besides this distinction, there is another of quite a different character, but entitled to great weight. Where the fees are fixed by law or rule of court and taxed, the attorney can exercise no unreasonable power over his clients by means of this so-called lien. The amount of the attorney's interest in the judgment being easily determined, the owner of the judgment can deal with it as he would with any other chose in action in which another person has a limited and fixed interest. There is little room for controversy between the client and his attorney, and if the sheriff collects the money on execution, he can ascertain the amount of taxed costs, and need only retain for the attorney this amount. But suppose we hold this lien exists on the principle of a quantum meruit, what would be the result? A plaintiff obtains against a solvent defendant a judgment for a large amount. His attorney demands an exorbitant fee, the client demurs to the payment, and the attorney informs him that until his fees are paid he can himself receive none of the fruits of his own judgment. "If the money is in the sheriff's hands, that officer would not dare, without indemnity, to pay any part of it over, as he could not tell what sum might be allowed for fees. The client, then, is in this dilemma: he must either submit to the payment of an unreasonable fee, or he must go, for an indefinite time, without the use of his money, which may be of vital importance to him, and must engage in new and expensive litigation, with his own counsel, with whom his relations have been confidential, and toward whom he would be unwilling to take a hostile position. "In our opinion it is not the policy of our law to place attorney and client in this position. We cannot consent to a rule which would lodge in the attorney's hands a power that might be so unreasonably and unjustly exercised, and which is not necessary to his protection. Honorable in their relations with their clients as members of the bar as a general rule undoubtedly are, it must be admitted, there are those by whom this power would be abused. It is of course desirable that a party should not run away with the fruits of a cause without satisfying the legal demands of his attorney, as said by Lord Kenyon in Read v. Dupper, 6 Term Rep. 362, but if we establish the principle here contended for, there would be cases in which a very unreasonable portion of the fruits would be demanded by the attorney, and collected under the pressure he could bring to bear upon his client. For the fifty years that Illinois has been a State our profession has thriven in worldly goods, and its members have been the trusted leaders of society, without asking for the establishment of this rule, or deeming it needful for their protection, and in our opinion its establishment would, in the end, bring discredit upon the profession at large, through its abuse in the hands of the unprincipled and avaricious.” In this State costs are taxed generally only to the party recovering and no costs are taxed as between attorney and client. It is the party who recovers the judgment and not the attorney. By the old law a fee was taxed for the attorney, evidently intending it as an allowance for the pay of his attorney. By the law as lately amended, a fee is taxed to the attorney, thus giving countenance to the claim that when recovered it belongs to him. If there is any lien, therefore, it should only be for this fee, unless he has paid the officers' fees or other fees. The travel and attendance is expressly taxed for the party, and how the attorney can have any claim for this it is hard to see. It is not to be denied that the attorney generally collects the debt and whole costs and uses it in settling with his client. The plaintiff's attorney in this case claims the costs by an equitable assignment. It is not contended that there was any express assignment. An equitable assignment is where a party intends to do something, to convey some right which cannot be enforced at law, but only in equity. There is no pretense that there ever was any agreement or intention to assign this bill of costs to the plaintiff's attorney. It cannot be claimed by usage. Usage cannot control the express words of the statute which gives the travel and attendance to the party. There having been no assignment of the judgment, the action cannot be sustained in the name of the party as trustee to the attorney. Exceptions sustained. NEW YORK COURT OF APPEALS ABSTRACT. ATTORNEY AND CLIENT-ATTORNEY NOT LIABLE TO STENOGRAPHER FOR SERVICES IN SUIT AGENCY. -The rule is well established that where a person contracts as the agent of another and the fact of his agency is known to the person with whom he contracts, the principle alone and not the agent is responsible. This rule applies to the relationship of attorney and client, and except as to a certain class of officers who are not within the rule, attorneys cannot be held personally responsible for the services of a stenographer rendered in a suit, unless there is a special obligation to that effect. Judson v. Gray, 11 N. Y. 408; Covel v. Hart, 14 Hun, 252; Bonynge v. Waterbury, 12 id. 534; Sheridan v. Genet, id. 660. And in an action by a stenographer against a firm of attorneys for services in an action, evidence of previous dealings of plaintiff with the firm where he performed work in other actions, furnished bills to the firm and received pay from them, held, inadmissible. What had been done on other occasions would not show what the contract was in reference to this transaction, and render defendants liable for plaintiff's claim in this case. Judgment affirmed. Bonynge, appellant, v. Field. Opinion by Miller, J.; Folger, C. J., Rapallo and Danforth, JJ., concurred; Andrews and Earl, JJ., dissented. [Decided June 1, 1880.] CONTRACT -CONSTRUCTION OF ADVERTISEMENT IN BOOK SOLD BY SUBSCRIPTION.-An agreement between the parties provided for the publishing in a book to be called "The Great Industries of the United States," an advertisement of defendant's business at a compensation measured by the number of books sold. It recited that the plaintiffs were about to publish such a book which would be sold by subscription through their authorized agents "in every State in the Union and in Canada;" that in the work was to be inserted the advertisement mentioned, in consideration of which the defendant agreed to pay "the sum of two cents for six pages of the said article for each and every copy of said work sold by said" plaintiffs, and plaintiffs agreed to furnish a verified certificate "as to the number of copies of said work actually sold and delivered to subscribers." In an action upon this contract it was shown that plaintiff had agents in every State and in Canada who canvassed for subscribers to books published by plaintiffs and then ordered the number of books required for delivery to subscribers, and paid for them and the books were shipped by freight or express, directed to the agents who delivered them to subscribers, the plaintiffs having no personal connection with the delivery and no knowledge of the individual subscribers except through these agents. Held, that evidence that plaintiffs had actually delivered to their agents and had been paid for a specified number of the books named was sufficient proof prima facie that they had sold the specified number in the way agreed, without evidence of a delivery to each individual subscriber. Held, also, that the contract did not call for a sale of the books in every State as a condition of defendant's liability. If the compensation had been fixed at a gross sum it might have been claimed that the consideration implied a sale in all the specified places, but otherwise, the compensation being limited to a specified sum for each book sold. See as sustaining the holding that evidence of delivery to agents was sufficient to establish a liability on the part of defendant, Burr v. Crompton, 116 Mass. 493. In that case it was held that the evidence was sufficient to justify a verdict for plaintiffs. Here it was held sufficient on this point, there being no conflicting evidence to set aside a decision of the referee for defendants. Order of General Term reversing judgment on report of referee affirmed. Burr & Hyde v. American Spiral Spring Co. Opinion by Church, C. J. Adopted as the opinion of the court. (This was the last opinion written by Chief Judge Church and was completed the morning of his death). [Decided June 1, 1880.] SALE OF PERSONAL PROPERTY-SPECIAL CONTRACT -WAIVER-WHEN PART DELIVERY GIVES RIGHT OF ACTION. By an oral contract plaintiffs agreed to sell and defendants to buy at a price named a certain number of boxes of glass, which were to be delivered together at one and the same time. Plaintiffs delivered a portion of the glass but did not deliver the remainder. It was shown that prior to the delivery of any glass defendants wrote plaintiffs to forward them at once a small portion of the glass, which was described. At the time of receiving the glass delivered, defendants received and used the same without any notice to plaintiffs that they would not consent to become liable to pay for that glass unless the remainder was delivered. Thereafter defendants wrote plaintiffs that they desired to have the contract completed within a reasonable time and a correspondence ensued which showed that the parties understood the contract differently. During this, plaintiffs notified defendants that they had such glass as was fitted to fill the contract and offered to complete it if the glass previously shipped and accepted was allowed to apply on the contract. Defendants declined to receive the glass on the ground that the time for completing the contract had expired, but nowhere did they claim that they were not liable to pay for the glass received. Held, that defendants were liable for the price of the glass received, having waived the full performance of the contract on the part of plaintiffs. While the general rule in this State is that no action lies upon a special contract, for the price agreed upon, until performance of such contract, this rule has been qualified in its application. Smith v. Brady, 17 N. Y. 173; Champlin v. Rowley, 13 Wend. 258. In the former case the rule that a party may retain, without compensation, the benefits of a partial performance of a contract, appears to have been confined to cases where the delivery was to be in parcels, at different times. While defendants were not bound to accept a delivery of a portion of the boxes of glass, and had a right to reject or retain the same, as they saw fit, yet if they elected to receive the part delivered, and appropriated the same to their own use, and by their acts evinced that they waived the condition, they became liable to pay for what was actually delivered. Vanderbilt v. Eagle Iron Works, 25 Wend. 665; Corning v. Colt, 5 id. 253; Krom v. Levy, 3 T. & C. 704; 6 id. 253; Flanagan v. Demarest, 3 Robt. 173; Normington v. Cook, 2 T. & C. 423; Welch v. Moffat, 1 id. 575. The cases of Catlin v. Tobias, 26 N. Y. 217; Pratt v. Gulick, 13 Barb. 297; McKnight v. Dunlop, 4 id. 36; S. C., 5 N. Y. 537; Mead v. Degolyer, 16 Wend. 636; Paige v. Ott, 5 Den. 406, are not adverse to the case at bar. In most of the cases it was contemplated that the performance was not to be done by a single act at one time, but by a succession of acts, and the intention evidently was that all of these should be completed as a condition precedent to a right of recovery. The principle established is that the parties must fulfill the terms of the contract. They have a right, however, to act outside of the contract by changing the time and conditions, etc. Judgment affirmed. Avery et al. v. Willson et al., appellants. Opinion by Miller, J. [Decided June 8, 1880.] STATUTE OF LIMITATION UNDER OLD CODE AS TO MARRIED WOMAN-STATUTORY CONSTRUCTIONOLD CODE, S 101; NEW CODE, $$ 381, 414, Laws 1870, CHAP. 741; 1851, CHAP. 479-PAYMENT- RENEWING OBLIGATIONS.-(1) Under the provisions of the statute of limitations contained in the old Code, § 101, as it was until 1870, excepting a married woman by reason of her disability to sue, the fact that she was a woman and married created the disability. Until 1851 the time of the disability was no part of the time when the statute ran. By Laws 1851, chap. 479, the period in which an action could be brought could not as to her be extended more than five years, nor more than one year after the disability had ceased. The five years and one year acted independently of each other. If five years of disability had elapsed before the disability had ceased in case of a sealed instrument, the limitation of twenty years began to run. If the disability had ceased for a year, though the term of five years had not expired, then the twenty years' period began to run at the end of the year. Thus the lapse of five years alone was enough to stop the action of the disability, and the lapse of a year after the cessation of the disability alone, though the five years had not yet gone by, was enough to stop the action of the disability. So a married woman outside the act of 1870 (chap. 741) might have on a sealed instrument twenty-five years in which to bring action, or she might have but twenty-one years. In this case a cause of action on a sealed instrument arose Nov. 1, 1857, in favor of a married woman. Her husband died in 1866. Held, that she was under the act of 1851 entitled to twenty years from the expiration of the five years immediately succeeding the accruing of the cause of action. (2) But by the act of 1870 the disability excusing from suing was taken away from married women and the ordinary limitation applied to married women as well as to others, and thereafter a married woman must sue on a sealed instrument within twenty years after her cause of action had accrued, and as this act by express terms applied to actions pending or such as thereafter might be brought, it applied to rights of action whether then accrued or thereafter to accrue. A statute of limitation affects the remedy on contracts made before as well as those made after the passage of it. By that act plaintiff had but twenty years from November 1, 1857, to bring action. The new Codo (S$ 381, 414), did not operate to extend plaintiff's time, which expired Nov. 1, 1877, and an action brought Dec. 10, 1877, was too late. (3) Before the instrument in question, which was a bond secured by a mortgage, was executed, defendant, to secure an indebtedness to plaintiff, took out a policy of insurance upon his life. That indebtedness was part of the sum secured by the bond and mortgage, and the policy was held as collateral to them. Defendant failed to make payment of the premiums, at what time it did not appear, on the life insurance, and in 1866 a sum of money was paid by the insurers to plaintiff. Held, that this would not constitute a payment taking the case out of the statute, even though plaintiff informed defendant at the time of the payment, and defendant did not reply. New Code, § 395; First Nat. Bk. of Utica v. Ballou, 49 N. Y. 155. The getting the policy and payment of the premiums might have had such an effect if they had been acts of defendant, within twenty years of the bringing of suit. Harper v. Fairley, 53 N. Y. 442, Smith v. Ryan, 66 id. 352. The payment of money by another as the result of a prior act of defendant would not have that effect. Order of General Term reversed and judgment of Special Term affirmed. Acker v. Acker et al., appellants. Opinion by Folger, C. J. [Decided June 1, 1880.] UNITED STATES SUPREME COURT ABSTRACT. OCTOBER TERM, 1879. PRACTICE-JURISDICTION OF COURT OVER ORDERS MADE AT SAME TERM APPEAL. -The Supreme Court of the District of Columbia at General Term, upon the application of one Ordway, a party to an action which had been determined, allowed an appeal to this court. Nothing further was done and no bond was filed. During the same term an entry was made upon the minutes of the former court to the effect that the appeal that was allowed had been withdrawn by the party mentioned. Held, that that court had power to revoke its allowance of appeal during the term, upon the request of the party to whom it was granted. The allowance of the appeal to Ordway was a judicial act of the court in term time. The order was entered on the minutes as part of what was done in the cause by the court while in session. In ea parte Lange, 18 Wall. 167, it was said that "the general power of the court over its own judgments, orders and decrees, in both civil and criminal cases, during the existence of the term at which they are first made, is undeniable." Basset v. U. S., 9 Wall. 38; Doss v. Tyack, 14 How. 298. As part of the "roll of that term" they are deemed to be "in the breast of the court during the whole term." Bac. Abr., tit., Amendment and Jeofail, A. Under this rule it is clear that the court had the power during the term, at the request of Ordway, to set aside the order of allowance and thus vacate the appeal which had been granted in his favor. This was done before any adverse rights had intervened. We are unable to see how the allowance of an appeal differs in this respect from any other judicial order made in the cause. If the one is subject to revocation or amendment while the term continues, so, as it seems to us, must be the other. There is nothing in this which interferes with the rule that where an appeal is allowed all jurisdiction of the suit appealed is transferred to this court. Here the question is whether an appeal was in legal effect allowed. It is true an order of allowance was granted and entered on the minutes of the court. So long as this order continued in operation, it bound the parties, but as it remained subject to the judicial power of the court during the term at which it was entered, its revocation vacated what had been done and left the decree standing with no appeal allowed. Ex parte Roberts, 15 Wall. 385. Neither one of the parties was finally discharged from the court until the term ended, and each was bound to take notice of whatever was done affecting his interests in the suit until a final adjournment actually took place. Decree of Dist. of Columbia Supreme Court affirmed. Phillips, appellant, v. Ordway. Opinion by Waite, C. J. STATUTORY CONSTRUCTION WHEN THIS COURT WILL NOT FOLLOW STATE COURTS AS TO STATE STATUTES-SALE OF LUNATIC'S ESTATE-NOTICE-JURISDICTION. (1) The statutes of Wisconsin relating to the sale of a lunatic's real estate provide, among other things, that a copy of the order to show cause why a license to sell the lunatic's estate should not be granted shall be published for four successive weeks before the motion therefor is heard, and a copy thereof be served personally upon all persons interested in the estate, "provided, however, if all persons interested in the estate shall signify in writing their assent to such sale, the notice may be dispensed with." It is also provided that the court, "upon proof of the due service or publication of a copy of the order, or of filing the consent in writing to such sale, of all persons interested, shall proceed to the hearing of such petition, and if such consent be not filed, shall hear and examine the allegations and proofs of the petitioner and of all persons interested in the estate who shall think proper to oppose the application." Held (conflicting with Mohr v. Tulip, Wisconsin Sup. Ct., 1876, and following Grignon's Lessee v. Astor, 2 How. 319), that an objection to the jurisdiction of the court to grant a license for the sale of a lunatic's real estate, on the ground that the copy order to show cause was not published as required by law, could not be raised by the lunatic in an action brought thereafter by him to set aside a sale made by his guardian under a license granted by the court. The publication of notice of the hearing is only intended for the protection of parties having adverse interests in the property, and is not essential to the jurisdiction of the court. It may be dispensed with if the parties having such interests consent to the sale. The consent could not be signed by the lunatic, for he, by his condition, would be incapable of giving a consent, and yet upon the others' consent, the court could proceed to act without notice to him. Nor, indeed, was there any reason why publication of notice should be made for other parties than those who held adverse interests. The lunatic could not be affected by such publication any more than by his consent. The application of the guardian to the court was required by the law only as a check against any improvident action by him. There was nothing in the nature of the proceedings which required a notice of any kind, so far as the rights of the lunatic were concerned. The law would have been free from objection had it simply authorized, upon the consent of the court, a sale of the lunatic's property for the payment of his debts. The authority of the court in that case as in this would have existed to license the sale, whenever it appeared that the personal estate of the lunatic was insufficient to pay his debts, and that a sale of his real property was necessary for that purpose. (2) In explaining their reason for refusing to follow the decision of the Wisconsin Supreme Court in construing the statutes of that State, the court say: The framers of the Constitution, in establishing the Federal judiciary, assumed that it would be governed in the administration of justice by those settled principles then in force in the several States and prevailing in the jurisprudence of the country from which our institutions were principally derived. Among them none were more important than those determining the manner in which the jurisdiction of the courts could be acquired. This necessarily depended upon the nature of the subject upon which the judicial power was called to act. If it was invoked against the person, to enforce a liability, the personal citation of the defendant or his voluntary appearance was required. If it was called into exercise with reference to real property by proceedings in rem, or of that nature, a different mode of procedure was usually necessary, such as a seizure of the property, with notice by publication or otherwise, to parties having interests which might be affected. The rules governing this matter in these and other cases were a part of the general law of the land, established in our jurisprudence for the protection of rights of person and property against oppression and spoliation. And when the courts of the United States were invested with jurisdiction over controversies between citizens of different States, it was expected that these rules would be applied for the security and protection of the non-resident citizen. The Constitutional provision owed its existence to the impression that State prejudices and attachments might sometimes affect injuri- | ously the regular administration of justice in the State courts. And the law of Congress, which was passed to give effect to the provision, made it optional with the non-resident citizen to require a suit against him, when commenced in a State court, to be transferred to a Federal court. This power of removal character of a corporation is not to be determined by FIRE POLICY-COMPROMISE OF LOSS-BREACH OF MISREPRE(1) The authorities are clear that a fire insurance company cannot avail itself of any breach of warranty in the policy to defeat a recovery upon an agreement to pay the loss, would be of little value and the constitutional provis-made after the loss has occurred, and the company has ion would be practically defeated, if the ordinary rules established by the general law for acquiring jurisdiction in such cases could be thwarted by State legislation or the decision of the local courts. In some instances the States have provided for personal judgments against non-residents without personal citation, upon a mere constructive service of process by publication; but the Federal courts have not hesitated to hold such judgments invalid. Pennoyer v. Neff, 95 U. S. 714. So, on the other hand, if the local courts should hold that certain conditions must be performed before jurisdiction is obtained and thus defeat rights of nonresident citizens acquired when a different ruling prevailed, the Federal courts would be delinquent in duty if they followed the latter decision. Judgment of U. S. U. Circ. Ct., E. D. Wisconsin affirmed. Mohr et al., plaintiffs in error, v. Manierre. Opinion by Field, J. INSURANCE LAW. had an opportunity to investigate the facts and circumstances affecting the fairness of the loss, without any interference, deception or fraud practiced by the insured at the time of such investigation, and that this is especially so when the agreement is a compromise of the claim at a less amount than the insured claims as his true loss. Smith v. Glens Falls Ins. Co., 62 N. Y. 85; National Life Ins. Co. v. Minch, 53 id. 144; Lapeyro v. Thompson, 7 La. Anu. 218; Metropolitan Ins. Co. v. Harper (U. S. W. D. Va.), 5 Rep. 491; Ins. Co. v. Chesnut, 50 Ill. 111; Ins. Co. v. Wager, 27 Barb. 354; Bilbie v. Lumley, 2 East, 469; Angel on Ins., § 409; May on Ins., § 575. In Smith v. Ins. Co., 62 N. Y. 85, Church, C. J., said: "The settlement and contract to pay a specified sum operates as a waiver of any warranty in the policy unless the settlement and contract were procured by the fraud of the assured. It is said that the company did not know of the breach of the warranty at the time of the settlement. The answer is, that when the claim was made for the loss the comDOMICILE- OF INSURANCE COMPANY FROM ANOTHER pany was required to ascertain the facts as to any STATE COMPLYING WITH STATE LAWS AS TO BUSINESS. breach of warranty. If they saw fit to pay the claim, - An insurance company, incorporated by the laws of or compromise it, or to make a new contract without New York, having its principal place of business in such examination, it must be deemed to have waived that State, which had complied with the laws of Vir- it, and in the absence of fraud it cannot afterward ginia in relation to foreign insurance companies doing avail itself of such breach. It cannot urge payment business in this State, by making the deposit, and ap- or settlement by mistake on account of want of knowlpointing a citizen of Virginia an agent, by power of edge of such breach. The time for investigation as to attorney, etc., as required by the statute of Virginia, breaches of warranty is when a claim is made of payis not a resident of this State, within the meaning of ment, and if the company elects to pay the claim, or, the foreign attachment laws of Virginia, and the prop- what is equivalent, to adjust it by an independent conerty of said insurance company is liable to such attach- tract, it cannot afterward, in the absence of fraud, ment as a non-resident. Whilst a corporation may, by retract or fall back upon an alleged breach of warits agents, transact business anywhere, unless pro- ranty." (2) In this application insured had stated that hibited by its charter, or prevented by local laws, it his title to the insured premises was absolute, and that can have no residence or citizenship except where it is the buildings insured were situated on ground held by located by or under the authority of its charter. As him in fee simple. In his proofs of loss he stated that was said by Taney, C. J., in Bank of Augusta v. Earle, the property insured was at the time of the fire still 13 Peters, 519, "It exists by force of the law (creating owned by him in fee- simple. The insurance was upon it), and where that ceases to operate, the corporation buildings erected by him on leased land, but what his can have no existence. It must dwell in the place of title to the buildings was did not appear. Held, that its creation, and cannot migrate to another sove- there was no such false and fraudulent representations reignty." In ex parte Schollenberger, 6 Otto, 377, as to ownership of the insured property as to avoid a Waite, C. J., said, "A corporation cannot change its settlement of loss agreed upon between him and the residence or its citizenship. It can have its legal home insurance company. In order to sustain such a defense only at the place where it is located by or under the it was necessary for the company to show that the authority of its charter, but it may, by its agents, insured had not an absolute title to the property at transact business anywhere, unless prohibited by its the time of the loss; that he knowingly, falsely and charter or excluded by local laws." "The foreign | fraudulently asserted, at the time of making the set |