Gambar halaman

It is true the clerk and officer, if they have not been settled very early. And it should be considered that paid, can sue the party; so can the attorney.

the jurisdiction of the King's Bench is almost without The plaintiff evidently supposes that he has a lien, limit, and that they can do things which would not be not only for the costs taxed to the attorney of the suc- allowed in our courts. cessful party, but for his charges and for all his ser- In this country the practice bas varied very much. vices, sometimes called fees, as he claims a lien for See Story on Agency, $ 383. In most of the cases costs in cases where a party recovers debt or damages usually referred to the lien is either given or recognized only and no costs.

by statute. It might possibly be for the public good if this was In New York it is recognized by statute, but only as the law. If a man when he began a lawsuit knew that to the costs taxed to the attorney and not for services, having employed an attorney he could not dismiss him, and it is enough to show how far they have carried the and that after he had gained his case he would be doctrine of the power of an attorney, to refer to a obliged to have another lawsuit with his own attorney case, Anon., 1 Wend. 108, where the court is repreto get his money from him, and so on again, it would sented (?) as laying it down generally that the client tend very much to diminish litigation, and a defendant could not control the attorney in the conduct of the would get out of such a suit as quickly as possible. suit. If the court only intended to say the client

It might also make parties more cautious as to could not oblige his attorney to argue a point which he choosing attorneys on whose honor they could rely. knew was against the settled law, which was that case,

The client in the present case may have shown a dis- or to say that no attorney could be compelled by his position to defraud his attorney of his reasonable dues client to do any thing that would injure his profesfor his services. But we are now only concerned with sional reputation, it was reasonable enough, and the the general rule.

attorney should exercise a discretion in this. Within If any attorney should be entitled to a lien upon a my own experience, I have known lawyers to make judgment for money for any thing beyond his taxable points in a case almost as a matter of desperation, and costs, it would seem that he ought to have the same to succeed by them. There is hardly any nonsense for lien where the recovery is for land. See this question which some authority cannot be found in a large law decided and a great number of cases quoted in Hum- | library. phrey v. Browning, 46 III. 476.

And in St. John v. Diefendorf, 12 Wend. 261, the The lien claimed for the attorney is no part of the New York Supreme Court held, that until notice old common law. See Getchell v. Clark, 5 Mass. 309; given, the officer could pay the attorney's costs to the Baker v. Cook, 11 id. 236, 238; Simmons v. Almy, 103 plaintiff without incurring any liability to the attorid. 33.

ney. A great deal of confusion may arise from not distin- Platt v. Jerome, 19 How. (U. S.) 384, was a case from guishing between the costs taxed to the attorney and the New York Circuit Court. In the Circuit Court, his charges for services. In many States there are Jerome had judgment for costs only and became incosts taxed as between attorney and client, whereas solvent. The parties settled the case and agreed that we have none such here. And in countries or States the writ of error should be dismissed. Jerome's where such a lien is held to exist the cases generally counsel opposed the dismissal, and claimed a lien on recognize that it extends not to counsel fees proper, the judgment for his costs. Nelson, J., says: “It is but to the taxed costs only. Ocean Insurance Co. v. quite clear he can have no lien for any costs in this Rider, 22 Pick. 210; Wright v. Cobleigh, 21 N. H. 339. court, as none have been recovered against the plaint

In England the so-called lien is comparatively iff in error. * * * The court looks no farther than modern, and it seems from Comyn's Dig., Attorney, B. to see that the application for the dismissal is made by 11; see, also, B. 16, to have been founded on an old the competent parties, which are usually the parties to rule of court. Pr. Reg. 2, 4, implying that a client the record. * * * He is not a party to the suit, nor cannot discharge his attorney without leave of court, does he stand in the place of the party in interest. He evidently intended in part to protect the attorney's is in no way responsible for the costs of the proceedcosts. See, also, Bacon's Abr., Attorney, E. But its | ings, and to permit him to control them, would, in efmain purpose may have been to compel the party to fect, be compelling the client to carry on the litigation notify the court of a change of attorney, that the at his own expense, simply for the contingent benefit court and opposite attorneys might always know whom of the attorney.” The cause had been dismissed and to serve papers, orders and notices upon.

the motion to restore it was denied. In Mitchell v. Oldfield, 4 Term Rep. 123, A. D. 1791, In Pulver v. Harris, 52 N. Y. 73, 76, the court held Lord Kenyon said the lien depended on the general that the suit was subject to the control of the party; jurisdiction over the suitors. Buller said that the that the attorney had a lien after judgment, but not court had before laid down the rule that they would before. The latter would prevent the party from setnot interfere to prevent the client from settling histling his case; and see Simmons v. Almy, 103 Mass. 33; own case without first paying his attorney. But in Averill v. Longfellow, 66 Me. 237. that case a rule was made for payment of the costs. In Massachusetts the lien was evidently derived

In Wilkins v. Carmichael, 1 Doug. 101, 104, A. D. from statute originating in 1810. The provision in the 1779, Lord Mansfield said that the lien upon papers Massachusetts Digest of 1860, ch. 121, $ 57, substanwas not very ancient, but the court had now carried it tially, I believe, the same, provides that an attorney so far as to stop the payment of money to the client lawfully possessed of an execution or who has proseuntil the attorney's bill was paid. The counsel in the cuted a suit to final judgment for his client shall have case mentioned the first instance of such an order. In lien thereon for the amount of his fees and disburseWelsh v. Hole, 1 Doug. 238, Lord Mansfield said the at- ments in the cause, but this shall not prevent the paytorney had a lien on money received for his bill of ment of the execution or judgment to the judgment costs. If it came to his hands he could retain it, or he creditor without notice of the lien. might apply to the court and they would prevent its The Massachusetts courts have expressly recoguized being paid over until the attorney's bill was paid. But that there was no such lien at common law; Baker v. he was inclined to go still farther, and to hold that the Cook, 11 Mass. 236, 238; Getchell v. Clark, 5 id. 309; attorney might give notice to the defendant, etc. But that it depends on the statute of 1810; Baker v. Cook, he thought they could not go beyond that. In that ante; Dunklee v..Locke, 13 Mass.525; and that although case the plaintiff compromised the case and the court it speaks of fees and disbursements, refers to taxablo sustained it.

costs only, and does not include counsel fees; Ocean These cases show that the English practice was not Insurance Co. v. Rider, 22 Pick. 210; and in Getchell v. Clark, ante, the power of the plaintiff to settle before In this State costs are taxed generally only to the judgment or settle afterward is fully recognized. party recovering and no costs are taxed as between

In In re Paschal, 10 Wall. 483, which was a case from attorney and client. It is the party who recovers the Texas, tho court, while recognizing a lien for disburse- judgment and not the attorney. By the old law a fee ments and professional services also, allowed the at- was taxed for the attorney, evidently intending it as torney to be changed before his costs were paid, saying an allowance for the pay of his attorney. By the law that the party was amply able to respond to whatever as lately amended, a fee is taxed to the attorney, thus he might recover.

giving countenance to the claim that when recovered I have made these remarks upon the doctrine in gen- it belongs to him. eral, and also to its extent in England and in this If there is any lien, therefore, it should only be for country, because they have no bearing on the question this fee, unless he has paid the officers' fees or other before us, and as showing the conflict of decisions, fees. The travel and attendance is expressly taxed and that they depend very much on local law and for the party, and how the attorney can have any usages.

claim for this it is hard to see. In Forsythe v. Beveridge, 52 Ill. 268, the Supreme It is not to be denied that the attorney generally colCourt held that there could be no lien except when lects the debt and whole costs and uses it in settling statutes or rules of court allowed specific fees as tax- with his client. able costs. A portion of their opinion is worth quot- The plaintiff's attorney in this case claims the costs ing.

by an equitable assignment. It is not contended that “But besides this distinction, there is another of there was any express assignment. quite a different character, but entitled to great An equitable assignment is where a party intends to weight. Where the fees are fixed by law or rule of do something, to convey some right which cannot be court and taxed, the attorney can exercise no unreas- enforced at law, but only in equity. onable power over his clients by means of this so-called There is no pretense that there ever was any agreelien. The amount of the attorney's interest in the ment or intention to assign this bill of costs to the judgment being easily determined, the owner of the plaintiff's attorney. judgment can deal with it as he would with any other It cannot be claimed by usage. Usage cannot conchose in action in which another person has a limited trol the express words of the statute which gives the and fixed interest. There is little room for contro- travel and attendance to the party. versy between the client and his attorney, and if the There having been no assignment of the judgment, sheriff collects the money on execution, he can ascer- the action cannot be sustained in the name of the party tain the amount of taxed costs, and need only retain as trustee to the attorney. for the attorney this amount. But suppose we hold

Exceptions sustained. 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.

NEW YORK COURT OF APPEALS ABSTRACT. His attorney demands an exorbitant fee, the client demurs to the payment, and the attorney informs him


TO STENOGRAPHER FOR SERVICES IN SUIT - AGENCY. that until his fees are paid he can himself receive none of the fruits of his own judgment.

- The rule is well established that where a person “If the money is in the sheriff's hands, that officer

contracts as the agent of another and the fact of his would not dare, without indemnity, to pay any part of agency is known to the person with whom he conit over, as he could not tell what sum might be allowed

tracts, the principle alone and not the agent is responfor fees. The client, then, is in this dilemma: he must

sible. This rule applies to the relationship of attorney either submit to the paymeut of an unreasonable fee,

and client, and except as to a certain class of officers or he must go, for an indefinite time, without the use

who are not within the rule, attorneys cannot be held of his money, which may be of vital importance to

personally responsible for the services of a stenog. him, and must engage in new and expensive litigation,

rapher rendered in a suit, unless there is a special with his own counsel, with whom his relations have

obligation to that effect. Judson v. Gray, 11 N. Y.408; been confidential, and toward whom he would be un

Covel v. Hart, 14 Hun, 252; Bonynge v. Waterbury, 12 willing to take a hostile position.

id. 534; Sheridan v. Genet, id. 660. And in an action “In our opinion it is not the policy of our law to

by a stenographer against a firm of attorneys for serplace attorney and client in this position. We cannot

vices in an action, evidence of previous dealings of consent to a rule which would lodge in the attorney's plaintiff with the firm where he performed work in hands a power that might be so unreasonably and un

other actions, furnished bills to the firm and received justly exercised, and which is not necessary to his pro

pay from them, held, inadmissible. What had been tection. Honorable in their relations with their clients

done on other occasions would not show what the conas members of the bar as a general rule undoubtedly

tract was in reference to this transaction, and render are, it must be admitted, there are those by whom this

defendants liable for plaintiff's claim in this case. power would be abused. It is of course desirable that

Judgment affirmed. Bonynge, appellant, v. Field. a party should not run away with the fruits of a cause

Opinion by Miller, J.; Folger, C. J., Rapallo and Danwithout satisfying the legal demands of his attorney,

forth, JJ., concurred; Andrews and Earl, JJ., dis

sented. as said by Lord Kenyon in Read v. Dupper, 6 Term Rep. 362, but if we establish the principle here con

[Decided June 1, 1880.] tended for, there would be cases in which a very un- CONTRACT CONSTRUCTION OF — ADVERTISEMENT reasonable portion of the fruits would be demanded IN BOOK SOLD BY SUBSCRIPTION.- An agreement beby the attorney, and collected under the pressure he tween the parties provided for the publishing in a could bring to bear upon his client. For the fifty book to be called “The Great Industries of the United years that Illinois has been a State our profession has States," an advertisement of defendant's business at a thriven in worldly goods, and its members have been compensation measured by tbe number of books sold. the trusted leaders of society, without asking for the It recited that the plaintiffs were about to publish such establishment of this rule, or deeming it needful for a book which would be sold by subscription through their protection, and in our opinion its establishment their authorized agents “in every State in the Union would, in the end, bring discredit upon the profession and in Canada;" that in the work was to be inserted at large, through its abuse in the hands of the unprin- | the advertisement mentioned, in consideration of cipled and avaricious."

which the defendant agreed to pay “the sum of two

as to


cents for six pages of the said article for each and of a partial performance of a contract, appears to have every copy of said work sold by said " plaintiffs, and been confined to cases where the delivery was to be in plaintiffs agreed to furnish a verified certificate

parcels, at different times. While defendants were the number of copies of said work actually sold and not bound to accept a delivery of a portion of the delivered to subscribers.” In an action upon this con- boxes of glass, and had a right to reject or retain the tract it was shown that plaintiff had agents in every same, as they saw fit, yet if they elected to receive State and in Canada who canvassed for subscribers to the part delivered, and appropriated the same to their books published by plaintiffs and then ordered the own use, and by their acts evinced that they waived number of books required for delivery to subscribers, the condition, they became liable to pay for what was and paid for them and the books were shipped by actually delivered. Vanderbilt v. Eagle Iron Works, freight or express, directed to the agents who 25 Wend. 665; Corning v. Colt, 5 id. 253; Krom v. Levy, delivered them to subscribers, the plaintiffs hav- 3 T. & C. 704; 6 id. 253; Flanagan v. Demarest, 3 Robt. ing no personal connection with the delivery 173; Normington v. Cook, 2 T. & C. 423; Welch v. and no knowledge of the individual subscribers Moffat, 1 id. 575. The cases of Catlin v. Tobias, 26 N. except through these agents. Held, that evidence Y. 217; Pratt v. Gulick, 13 Barb. 297 ; McKnight v. Dunthat plaintiffs had actually delivered to their agents lop, 4 id. 36; S. C., 5 N. Y. 537; Mead v. Degolyer, 16 and had been paid for a specified number of the books Wend. 636; Paige v. Ott, 5 Den, 406, are not adverse to named was sufficient proof prima facie that they had the case at bar. In most of the cases it was contemsold the specified number in the way agreed, without plated that the performance was not to be done by a evidence of a delivery to each individual subscriber. single act at one time, but by a succession of acts, and Held, also, that the contract did not call for a sale of the intention evidently was that all of these should be the books in every State as a condition of defendant's completed as a condition precedent to a right of reliability. If the compensation had been fixed at a gross covery. The principle established is that the parties sum it might have been claimed that the consideration must fulfill the terms of the contract. They have a implied a sale in all the specified places, but otherwise, right, however, to act outside of the contract by changthe compensation being limited to a specified sum for ing the time and conditions, etc. Judgment affirmed. each book sold. See as sustaining the holding that evi- Avery et al. v. Willson et al., appellants. Opinion by dence of delivery to agents was sufficient to establish Miller, J. a liability on the part of defendant, Burr v. Cromp- [Decided June 8, 1880.] ton, 116 Mass. 493. In that case it was held that the evidence was sufficient to justify a verdict for plaint


OLD CODE AS iffs. Here it was held sufficient on this point, there

TO MARRIED WOMAN -- STATUTORY CONSTRUCTION being no conflicting evidence to set aside a decision of

OLD CODE, S 101; NEW (ODE, SS 381, 414, LAWS 1870, the referee for defeudants. Order of General Term

CHAP. 741; 1851, CHAP. 479 - PAYMENT --- RENEWING reversing judgment on report of referee affirmed.

OBLIGATIONS.--(1) Under the provisions of the statute Burr & Hyde v. American Spiral Spring Co. Opinion

of limitations contained in the old Code, $ 101, as it by Church, C. J. Adopted as the opinion of the court.

was until 1870, excepting a married woman by reason (This was the last opinion written by Chief Judge

of her disability to sue, the fact that she was a woman Church and was completed the morning of his death).

and married created the disability. Until 1851 the [Decided June 1, 1880.]

time of the disability was no part of the time when

the statute ran. By Laws 1851, chap. 479, the period SALE OF PERSONAL PROPERTY — SPECIAL CONTRACT

in which an action could be brought could not as to - WAIVER - WHEN PART DELIVERY GIVES RIGHT OF

her be extended more than five years, nor ACTION. – By an oral contract plaintiffs agreed to sell than one year after the disability had ceased. The and defendants to buy at a price named a certain five years and one year acted independently of number of boxes of glass, which were to be delivered each other. If five years of disability had elapsed together at one and the same time. Plaintiffs deliv- before the disability had ceased in case of a ered a portion of the glass but did not deliver the re- sealed instrument, the limitation of twenty years mainder. It was shown that prior to the delivery of began to run. If the disability had ceased for a year, any glass defendants wrote plaintiffs to forward them though the term of five years had not expired, then the at once a small portion of the glass, which was de- twenty years' period began to run at the end of the scribed. At the time of receiving the glass delivered, year. Thus the lapse of five years alone was enough to defendants received and used the same without any stop the action of the disability, and the lapse of a year notice to plaintiffs that they would not consent to be- after the cessation of the disability alone, though come liable to pay for that glass unless the remainder the five years had not yet gone by, was enough to stop was delivered. Thereafter defendants wrote plaintiffs the action of the disability. So a married woman outthat they desired to have the contract completed side the act of 1870 (chap. 741) might have on a sealed within a reasonable time and a correspondence ensued instrument twenty-five years in which to bring action, which showed that the parties understood the contract or she might have but twenty-one years.

In this differently. During this, plaintiffs notified defend- case a cause of action on a sealed instrument arose ants that they had such glass as was fitted to fill the Nov. 1, 1857, in favor of a married woman. Her huscontract and offered to completo it if the glass previ- band died in 1866. Held, that she was under the act of ously shipped and accepted was allowed to apply on 1851 entitled to twenty years from the expiration of the contract. Defendants declined to receive the glass the five years immediately succeeding the accruing of on the ground that the time for completing the con- the cause of action. (2) But by the act of 1870 the disabiltract bad expired, but nowhere did they claim that ity excusing from suing was taken away from married they were not liable to pay for the glass received. women and the ordinary limitation applied to married Held, that defendants were liable for the price of the women as well as to others, and thereafter a married glass received, having waived the full performance of. woman must sue on a sealed instrument within twenty the contract on the part of plaintiffs. While the gene- years after her cause of action had accrued, and as this ral rule in this State is that no action lies upon a special act by express terms applied to actions pending or such contract, for the price agreed upon, until performance as thereafter might be brought, it applied to rights of of such contract, this rule has been qualified in its ap- action whether then accrued or thereafter to accrue. plication. Smith v. Brady, 17 N. Y. 173; Champlin v. A statute of limitation affects the remedy on contracts Rowley, 13 Wend. 258. In the former case the rule that made before as well as those made after the passage of a party may retain, without compensation, the benefits | it. By that act plaintiff had but twenty years from

more WHEN


November 1, 1857, to bring action. The new Codo allowed. Ex parte Roberts, 15 Wall. 385. Neither one (S$ 381, 414), did not operate to extend plaintiff's time, of tho parties was finally discharged from the court which expired Nov. 1, 1877, and an action brought Dec. until the term ended, and each was bound to take 10, 1877, was too late. (3) Before the instrument in notice of whatever was done affecting his interests in question, which was a bond secured by a mortgage, the suit until a final adjournment actually took place. was executed, defendaut, to secure an indebtedness to Decree of Dist. of Columbia Supreme Court affirmed. plaintiff, took out a policy of insurance upon his life. Phillips, appellant, v. Ordway. Opinion by Waite, That indebtedness was part of the sum secured by the C. J. bond and mortgage, and the policy was held as collat- STATUTORY CONSTRUCTION

THIS eral to them. Defendant failed to make payment of WILL NOT FOLLOW STATE COURTS AS TO STATE STATthe premiums, at what time it did not appear, on the UTES - SALE OF LUNATIC'S ESTATE-NOTICE - JURISlife insurance, and in 1866 a sum of money was paid by DICTION. — (1) The statutes of Wisconsin relating to the the insurers to plaintiff. Held, that this would not sale of a lunatic's real estate provide, among other constitute a payment taking the case out of the statute, things, that a copy of the order to show cause why a even though plaintiff informed defendant at the time license to sell the lunatic's estate should not be granted of the payment, and defendant did not reply. New shall be published for four successive weeks before the Code, S 395; First Nat. Bk. of Utica v. Ballou, 49 N.

motion therefor is heard, and a copy thereof be served Y. 155. The getting the policy and payment of the personally upon all persons interested in the estate, premiums might have had such an effect if they had “provided, however, if all persons interested in the been acts of defendant, within twenty years of the estate shall signify in writing their assent to such sale, bringing of suit. Harper v. Fairley, 53 N. Y. 442,

the notice may be dispensed with.” It is also provided Smith v. Ryan, 66 id. 352. The payment of money by that the court, “upon proof of the due service or pubanother as the result of a prior act of defendant would lication of a copy of the order, or of filing the consent not have that effect. Order of General Term reversed

in writing to such sale, of all persons interested, shall and judgment of Special Term affirmed.

Acker v.

proceed to the hearing of such petition, and if such Acker et al., appellants. Opinion by Folger, C. J. consent be not filed, shall hear and examine the allega[Decided June 1, 1880.]

tions and proofs of the petitioner and of all persons

interested in the estate who shall think proper to UNITED STATES SUPREME COURT oppose the application." Held (conflicting with Mohr ABSTRACT.

v. Tulip, Wisconsin Sup. Ct., 1876, and following GrigOCTOBER TERM, 1879.

non's Lessee v. Astor, 2 Hoy. 319), that an objection

to the jurisdiction of the court to grant a license for PRACTICE - JURISDICTION OF COURT OVER ORDERS the sale of a lunatic's real estate, on the ground that MADE AT SAME TERM — APPEAL. — The Supreme Court the copy order to show cause was not published as reof the District of Columbia at General Term, upon the quired by law, could not be raised by the lunatio in an application of one Ordway, a party to an action which action brought thereafter by him to set aside a sale made had been determined, allowed an appeal to this court. by his guardian under a license granted by the court. Nothing further was done and no bond was filed. The publication of notice of the hearing is only inDuring the same term an entry was made upon the tended for the protection of parties haring ad verse minutes of the former court to the effect that the ap- interests in the property, and is not essential to the peal that was allowed had been withdrawn by the party jurisdiction of the court. It may be dispensed with mentioned. Held, that that court had power to revoke if the parties having such interests consent to the sale. its allowance of appeal during the term, upon the The consent could not be signed by the lunatic, for be, request of the party to whom it was granted. The by his condition, would be incapable of giving a conallowance of the appeal to Ordway was a judicial act sent, and yet upon the others' consent, the court could of the court in term time. The order was entered on proceed to act without notice to him. Nor, indeed, the minutes as part of what was done in the cause by was there any reason why publication of notice should the court while in session. In ex parte Lange, 18 Wall. be made for other parties than those who held adverse 167, it was said that “the general power of the court interests. The lunatic could not be affected by over its own judgments, orders and decrees, in both such publication any more than by his consent. The civil and criminal cases, during the existence of the application of the guardian to the court was required term at which they are first made, is undeniable." by the law only as a check against any improvident Basset v. U. S., 9 Wall. 38; Doss v. Tyack, 14 How. action by him. There was nothing in the nature of 298. As part of the “roll of that term " they are the proceedings which required a notice of any kind, deemed to be “in the breast of the court during the so far as the rights of the lunatic were concerned. whole term." Bac. Abr., tit., Amendment and Jeofail, The law would have been free from objection had it A. Under this rule it is clear that the court had the simply authorized, upon the consent of the court, a power during the term, at the request of Ordway, to sale of the lunatic's property for the payment of his set aside the order of allowance and thus vacate the debts. The authority of the court in that case as in appeal which had been granted in his favor. This was this would have existed to license the sale, whenever it done before any adverse rights had intervened. We appeared that the personal estate of the lunatio was are unable to see how the allowance of an appeal dif- insufficient to pay his debts, and that a sale of his real fers in this respect from any other judicial order made property was vecessary for that purpose. (2) In exin the cause. If the one is subject to revocation or plaining their reason for refusing to follow the decisamendment while the term continues, so, as it seems ion of the Wisconsin Supreme Court in construing the to us, must be the other. There is nothing in this statutes of that State, the court say: The framers of which interferes with the rule that where an appeal is the Constitution, in establishing the Federal judiciary, allowed all jurisdiction of the suit appealed is trans- assumed that it would be governed in the administraferred to this court. Here the question is whether an tion of justice by those settled principles then in force appeal was in legal effect allowed. It is true an order in the several States and prevailing in the jurispruof allowance was granted and entered on the minutes dence of the country from which our institutions were of the court. So long as this order continued in opera- principally derived. Among them none were more tion, it bound the parties, but as it remained subject important than those determining the manner in which to the judicial power of tbe court during the term at the jurisdiction of the courts could be acquired. This which it was entered, its revocation vacated what had necessarily depended upon the nature of the subject been done and left the decree standing with no appeal upon which the judicial power was called to act. If it was invoked against the person, to enforce a liability, character of a corporation is not to be determined by the personal citation of the defendant or his voluntary the place where its business is transacted, or (even) appearance was required. If it was called into exer- where the corporators reside, but by the place where cise with reference to real property by proceedings in its charter was granted. With reference to inhabitrem, or of that nature, a different mode of procedure ancy, it is considered as an inhabitant of the State in was usually necessary, such as a seizure of the prop- which it was incorporated." Drake on Attach. (3d ed.), erty, with notice by publication or otherwise, to parties $ 80; The Cairo Continental Ins. Co. v. Kasey, 25 Gratt. having interests which might be affected. The rules 268 ; Connecticut Mut. L. Ins. Co. v. Duersen's Ex'r, governing this matter in these and other cases were a 28 id., do not conflict with this doctrine. The first of part of the general law of the land, established in our these cases had reference to the removal of causes to a jurisprudence for the protection of rights of person Federal court from a State court, which was refused and property against oppression and spoliation. And on the ground that the company had by its stipulation when the courts of the United States were invested waived its right to a removal and the second involved with jurisdiction over controversies between citizens the question of the running of the statute of limitaof different States, it was expected that these rules tions as to it, which was held to run, as it had a local would be applied for the security and protection of domicile and residence in the State for the purpose of the non-resident citizen. The constitutional provision being sued. Virginia Sup. Ct. of Appeals, November owed its existence to the impression that State preju- Term, 1879. Cowardin v. Universal Life Insurance dices and attachments might sometimes affect injuri- | Co. Opinion by Christian, J. ously the regular administration of justice in the State courts. And the law of Congress, which was


WARRANTY NOT DEFENSE IN ACTION ON -- MISREPREpassed to give effect to the provision, made it optional

SENTATIONS AS TO OWNERSHIP. with the non-resident citizen to require a suit against

- (1) The authorities him, when commenced in a State court, to be trans

are clear that a fire insurance company cannot avail ferred to a Federal court. This power of removal

itself of any breach of warranty in the policy to dewould be of little value and the constitutional provis- feat a recovery upon an agreement to pay the loss, ion would be practically defeated, if the ordinary rules

made after the loss has occurred, and the company has established by the general law for acquiring jurisdic- had an opportunity to investigate the facts and circumtion in such cases could be thwarted by State legisla

stances affecting the fairness of the loss, without any tion or the decision of the local courts. In some in

interference, deception or fraud practiced by the instances the States have provided for personal judg-sured at the time of such investigation, and that this ments against non-residents without personal citation,

is especially so when the agreement is a compromise upon a mere constructive service of process by publi- | of the claim at a less amount than the insured claims cation; but the Federal courts have not hesitated to

as his true loss. Smith v. Glens Falls Ins. Co., 62 N. Y. hold such judgments invalid. Pennoyer v. Neff, 95 U. 85; National Life Ins. Co. v. Minch, 53 id. 144; LaS. 714. So, on the other hand, if the local courts should

peyre v. Thompson, 7 La. Anv. 218; Metropolitan Ins. hold that certain conditions must be performed before

Co. v. Harper (U. S. W. D. Va.), 5 Rep. 491; Ins. Co. jurisdiction is obtained and thus defeat rights of non

v. Chesnut, 50 I11. 111; Ing. Co. v. Wager, 27 Barb. 354; resident citizens acquired when a different ruling pre

Bilbie v. Lumley, 2 East, 469; Angel on Ins., $ 409; railed, the Federal courts would be delinquent in duty May on Ins., $ 575. In Smith v. Ius. Co., 62 N. Y. 85, if they followed the latter decision. Judgment of U. | Church, C. J., said: “The settlement and contract to S. U. Circ. Ct., E. D. Wisconsin affirmed. Mohr et al., pay a specified sum operates as a waiver of any warplaintiffs in error, v. Manierre. Opinion by Field, J. ranty 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 INSURANCE LAW.

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

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