As Affected by Garnishment, Attachment or Trustee Process. the company, although such payment trustee process being by statute to be was made after the service of the writ considered as true, the plaintiff cannot be upon the secretary of the company, if allowed to prove there was no other adthere was no neglect of duty in giving no- joining building increasing the risk, nor tice of the service to the agent. And such that the insurance was not on goods in a neglect of duty is not shown by the detached building. Bostwick v. Bass, 99 omission of the secretary for three hours Mass. 469. after service, to send notice thereof from 15.- Funds and securities deposited by B. to W., a distance of forty miles, if the a foreign insurance company with a speciagent has temporarily gone to the latter fied officer of this state are not attachplace for the purpose of investigating, and able both on account of the tenure of the with authority to adjust the loss. holding and of the official character of Spooner v. Rowland, 4 Allen, 485 (Mass.) the holder. A lien may be acquired on 10. Where a policy provided that the such a fund, but no priority. The law loss, if any, should be paid within sixty under which such securities are deposited days after due notice and proof thereof, is equivalent to a statutory mortgage for &c.; held, that the claim was contingent, the benefit of all the citizens of the State. and that the company could not be In such a case the rule is that the credcharged as trustees of the insured in an itors share pro rata and neither can reaction commenced after a loss, but beforequire any priority over the others. Pennenotice and proof. Davis v. Davis, 49 Me. baker v. Tomlinson, 1 Cooper, Ch. 111, 594 (Tenn). 282. 16. The funds and securities deposited by a foreign insurance company with the State Treasurer are not liable to 11. In Pennsylvania an unadjusted and unliquidated claim for a loss upon a policy of insurance against fire is subject to attachment in the hands of the insur-attachment when the company ceases to ance company. Girard Fire & Marine Ins. Co. v. Field, 45 Pa. 129. 12.- Until proof and an adjustment of a loss according to the terms and conditions of the policy, or their waiver by the assurer, the liability is contingent, and the assurer is not liable under the statute of Minnesota as garnishee of the insured. Gies v. Bechtner, 12 Minn. 279. 13.- The policy providing for an examination of the assured under oath, if required, else the loss not to be paid, and the proofs of loss being unsatisfactory, the company required a personal examination and used due diligence to notify the assured but could not find him. Held, the condition precedent is not waived, whether its breach is intentional or not; the attaching creditor stood in no better position than the assured, and could not recover. Harris v. Phonix Ins. Co., 35 Conn. 310. do business within the state and has satisfied all the claims of its citizens; such funds must be returned to the company and cannot be attached in an action brought by a foreign creditor. Rollo v. Andes Ins. Co., 23 Grat. 509 (Va.) 17.- A claim under policy of insurance is not liable to garnishment so long as the company has the option of paying for the property lost or replacing it. Elliott v. Preston, 42 Mich. 511; Godfrey v. Macomber, 128 Mass. 188; Martz v. Detroit Ins. Co., 28 Mich. 201. 18. When loss is made payable to a mortgagee to extent of his interest, to such extent it is not subject to garnishment by creditors of the mortgagor. Mansfield v. Stevens, 31 Minn. 40. 19. Insurer is not chargeable in attachment as trustee of insured while amount due is unliquidated. Bucklin v. Powell, 60 N. H. 119. 14. An insurance company being gar- 20. A certain foreign insurance comnished, answered that they owed the pany did no business and had no agency assured nothing, because the policy was in Georgia, but one of its agents resided on goods in a store detached, whereas there, and audited and approved claims there was another store adjoining which arising against the company in Florida, affected the risk very materially. Held, gave checks for amounts due on account such misrepresentations, if true, invali- thereof and sometimes paid them. Held, dated the policy, and the answers in a that the Georgia courts had no jurisdic As Affected by Garnishment, Attachment or Trustee Process. tion of the company and a garnishment creditors. *Glover v. Wells, 40 Ill. App. served on the agent was properly dis- 350. charged. Schmidlapp v. La Confiance Ins. Co., 71 Ga. 246. 21.- Where the amount of a policy on A's goods is made payable to B as his interest may appear,. that interest being represented by a chattel mortgage, a creditor of A may garnish the insurance money in the hands of the insurer and may attach B's mortgage as fraudulent as to A's creditors. North Star, etc., Co. v. Ladd, 32 Minn. 381. 22. It seems that garnishee proceedings instituted by a creditor of insured in one state operate upon the claim of insured for a loss in another state in which he resides, so that a subsequent assignee of insured can not enforce a judgment obtained by him for the same claim in the latter state. Connor v. Hanover Ins. Co., 16 Ins. L. J. 385; 28 Fed. Rep. 549. is 27. An insurance company may be garnished on account of a loss, even if unadjusted, accruing under a policy of insurance issued by it. *Hanover F. Ins. Co. v. Connor, 20 Ill. App. 297. 28.- When policy is issued in a certain state by an admitted foreign corporation subject to process by statute the loss is payable in such state, no other place of payment being stipulated. So held, in garnishee proceedings. *Moshassuck Felt Mill v. Blanding, 20 Ins. L. J. 475; 21 Atl. Rep. 538 (R. I.) 29. A foreign insurance company doing business within the state may be garnished by service on the state insurance commissioner, under R. I. Pub. Laws, chap. 432, making him the attorney of such companies for service of process. Id. 23.- Company having notified insured 30.- Insurance companies having agenof its election to replace, there cies and doing business in Illinois are, as no liability subject to garnishment. corporations, resident there, and liable as Although it seems that garnished com- garnishees of their non-resident creditor, pany may be held until it is ascertained though by the terms of their respective whether such election is actually carried contracts the payment to their said crediout in good faith. Hurst v. Home Pro-tor was to be made elsewhere. *Hendertection Fire Ins. Co.. 16 Ins. L. J. 688 son v. Schaas, 35 Ill. App. 155. (Ala.) 31.-A resident agent of a foreign fire 24.- An insurance company was gar-insurance company is authorized to make, nished by M, a creditor of B. It answered, in behalf of the company, an affidavit to denying any indebtedness, and setting an answer in a garnishment proceeding. out that the "matter is in dispute, and *Dougan v. Sun Fire Office, 39 Mo. App. litigation about to ensue." The plaintiff, 676. M, traversed the denial of indebtedness. On the trial the plaintiff read a policy of fire insurance in favor of B and the proof of loss furnished the company, and showed that such proof had never been objected to. The garnishee did not appear, and judgment was rendered for the plaintiff. Held, that the evidence was sufficient to show prima facie a liability, and the judgment was properly rendered. Crescent Ins. Co. v. Moore, 63 Miss. 419. 25.- An insurance company may be garnished as the debtor of one insured, after loss and before adjustment thereof. Id. 26.- An insurance company by establishing an agency in Illinois and doing business there becomes a resident there 32. There is no debt upon a policy of fire insurance payable at a specified time after proofs of loss, against which an attachment will lie during the period between a fire and the making of proofs of loss. *Douglas v. Phoenix Ins. Co. 43 N. Y. S. Rep. 309; 44 N. Y. S. Rep. 237; 18 N. Y. Supp. 259, 262; 63 Hun, 393. 33.- After the election of an insurer to rebuild, under a policy giving it an option so to do, and the letting of a contract for the work, although the premises were already advertised for sale under a mortgage, the insurer is not liable to garnishment for the amount of the insurance, by creditors of the insured. *Stone v. Mutual F. Ins. Co., 14 L. R. A. 684; 22 Atl. Rep. 1051; 74 Md. 569. 34.- No statute providing for attachand liable as garnishee of its non-resident | ment of property of nonresidents, that Cross References Cases Affecting Procedure in Court. can be enacted in another state, can de- judgment for the whole amount, though prive a resident of New York not person- erroneous, can be corrected without a ally served with process, of his interest in venire de novo. Insurance Cos. v. Boya policy of insurance issued by a New kin, 12 Wallace, 433 (U. S.) York company, since such deprivation would be without due process of law and the subject-matter is in New York and without the jurisdiction of the courts of such other state. *Douglas v. Phanix Ins. Co., 44 N. Y. S. Rep. 237; 18 N. Y. .Supp. 259; 63 Hun, 393. 34a.- Cross References. Section five. Subd. X. Assignment. Nos. 8, 36. Section thirteen. Mortgagor and Mortgagee. Nos. 87, 89. Section fifteen. 38. The officers of insurance companies in St. Louis agreed not to insure for the plaintiff, in consequence of which agreement, assured sold his property and was thrown out of business. Held, that an action for damages against such officers could not be maintained. Hunt v. Simonds, 19 Mo. 583. 39.-W. brought a suit to recover on a lost policy of insurance; on the trial he was sworn to prove the loss of the policy; he testified that the policy had never come to his hands, that he had never received Subd. III. Statement or proofs of loss. it, that he had searched for it among his No. 334, 363. papers, and that he had no such paper in Section twenty-one. Limitation. No. 27, his custody or under his control. Held, 30. 34b. Note. This subject (garnishment, etc.,) is materially affected in different states by statute, which should be examined in connection with the cases. 35. Cases affecting procedure in court.-An insurance company loaned money on a bond and mortgage, and at the same time insured the building subject to the mortgage. In the great fire in New York, the building was destroyed and the company rendered insolvent. Held, that the assured might set off the amount of his loss under the policy, against the bond and mortgage. Receivers of Globe Ins. Co. 2 Edwards Ch. 625 (N. Y.) 36.- Separate actions brought against several underwriters on same policy. Defendants moved to consolidate the cases, so that one trial should dispose of the whole. The court refused to grant the motion, against the consent of plaintiff. Doyle v. Anderson, 1 Adolph. & Ellis, 635; 28 Eng. C. L. 300. Consolidation ordered in a similar case. Hollingsworth v. Broderick, 4 Adolph. & Ellis, 646; (31 Eng. C. L. 287.) that the proof was sufficient to establish the loss of the policy. Sussex County Mut. Ins. Co. v. Woodruff, 2 Dutch. 541 (N. J.) 40.- Where application was made for a policy like one of another company, and, as issued, contained a printed clause which the other did not, and a blank form of latter was admitted in evidence under objection, held, no error; that as policies were to be alike, it was proper to show that latter policy did not contain the printed condition; and this was properly shown by the printed form. Van Tuyl v. Westchester Fire Ins. Co., 55 N. Y. 657. Affi'g 67 Barb. 72. 41. When several companies sign an agreement to unite in resisting a claim, wherein they appoint a committee to employ counsel and “to contribute to and pay the costs, fees, and expenses pro rata; that is to say each company shall pay such proportion as the amount insured by said company shall bear to the whole amount insured by all the companies subscribing to this agreement,” the companies signing such agreement become liable, severally only, each for its proper proportion. Adriatic Fire Ins. Co. v. Treadwell, 12 Ins. L. J. 667; 108 U. S. 361; 2 Sup. Ct. Rep. 773; contra: Security Ins. Co. v. St. Paul Fire and M. Ins. Co., 12 Ins. L. J. 903; 50 Conn. 233. 37.-A policy being signed by four companies, each to be liable to one-fourth, one action can with their consent be brought against them all; and a verdict assessing the whole damages against them all is good. But the judgment 42.- Construction of an agreement beshould be rendered for one-fourth the tween companies to resist a claim. Securamount against each separately, with a ity Ins. Co. v. St. Paul Fire & M. Ins. joint judgment for costs; but a joint Co., supra. No. 41. Duty of a Party to Keep Property Insured. 43.- No merely technical objection not materially affecting the risk is available as a defense in an action on a policy. Phoenix Ins. Co. v. Barnd, 16 Neb. 89. 44.— When a petition or complaint alleges that property destroyed belonged to the plaintiff, under a general denial, company should be permitted to prove that it was not the property of the plaintiff. Queen Ins. Co. v. Jefferson Ice Co., 15 Ins. L. J. 109; 64 Tex. 578. denied where it appears, defendant in its answer charges the insured with fraud. *Bamberger v. Fire Assoc., 26 Jones and Sp. 244 (N. Y.) 51.- Measure of damages in trover for the conversion of an insurance policy, where its collectible value is not shown, is the sum expressed upon its face, with interest. Hayes v. Massachusetts Mut. Ins. Co., 1 L. R. A. 303; 125 Ill. 626; 18 N. East. Rep. 322. 52. An action of detinue may be maintained by insured for the recovery of a policy for which he has paid, and which is withheld by the agent who wrote it. *Robinson v. Peterson, 40 Ill. 45. To sustain an action upon a judgment recovered in another state against a foreign corporation, it must affirmatively appear in the record that it was engaged in business in that state. A bare return by an officer that process was served upon | App. 132. an "agent" is insufficient. Parol evidence is not admissible to cure defect in the record. Henning v. Planters' Ins. Co., 16 Ins. L. J. 20; 28 Fed. Rep. 440. 53. In an action upon an insurance policy, where complainant alleges the performance of all conditions, and defendant answers denying performance in 46.- Comment by counsel in summing certain named particulars, plaintiff need up for the insured to a jury in a trial to only prove performance in the matters as recover the amount of insurance, upon the to which non-performance is alleged; he honor, integrity and truthfulness of in-need not go into the entire policy and sured being questioned by "this soulless prove compliance with all the conditions corporation, defendant in the case" is objectionable, and court errs if it does not arrest such a line of argument when requested. Commercial Fire Ins. Co. v. Allen, 16 Ins. L. J. 641; 80 Ala. 571. 47.- An allegation in a complaint on a policy that the plaintiff from the date of the risk until the destruction of the property "had an insurable interest as the owner thereof to its full value" is a sufficient averment of ownership. Phonix Ins. Co. v. Rowe, 117 Ind. 202. 48.- Where there are mixed questions of law and fact presented by long accounts, proper practice is to hear the cause until questions of law are disposed of, and then send the accounts to a referee. Samble v. Mechanics' Fire Ins. Co., 1 Hall, 560 (N. Y.); but see Camp v. Ingersoll, 86 N. Y. 437. 49.— In an action on a policy the company is not entitled to a reference upon the theory of a long account. Andrus v. Home Ins. Co., 73 Wis. 642; 18 Ins. L. J. 633; Camp v. Ingersoll, 86 N. Y. 433. 50.— Motion for a compulsory reference by an insurance company in an action pending against it, on ground that a long account is involved, is properly therein named, or prove the truth of statements in his application in the first instance. *Roach v. Kentucky Mut. Secur. Fund Co., 28 S. C. 431; 6 S. E. Rep. 286. 54. Duty of a party to keep property insured. To recover against a consignee of goods which have been burnt while in his possession, and not insured by him, it must be made to appear by the most conclusive proof, that it is the custom for commission merchants to insure goods consigned to them for sale, unless instructed to the contrary. Tonge v. Kennett, 10 La. Ann. 800. 55.- A trustee having agreed to insure, the selection of the company being left to him, does not guarantee their continued solvency. Gettins v. Scudder, 71 Ill. 86. 56.- Assignee of insolvent debtor had used due diligence in making sales and the bulk of the goods had been disposed of. There was a remnant unsold which he stored for the purpose of disposing of to best advantage and without delay. Held, that, in absence of testimony to contrary, assignee could not be charged with negligence in omitting to insure a parcel of goods of that character held Alteration of Policy Contract as Affected by Legality or Illegality. under such circumstances so as to render tion of policy by subsequent agreement him liable. Clark v. Craig, 29 Mich. 398. is ineffectual unless made and delivered 57.- An insurance of goods consigned to other party with the knowledge and which fails through neglect of consignee consent of party executing it. Hoffecker or factor renders the latter liable to the v. N. C. M. Ins. Co., 4 Houst. 306 (Del.) consignor. Gordon v. Wright, 29 La. Ann. 812. 58. For failure to keep an agreement to assign a policy the party is liable only for the cost of procuring insurance for the unexpired term; he is not liable for the damages by fire. Dodd v. Jones, 13 Ins. L. J. 799; 137 Mass. 322. 59.- A party is not liable for damages in failing to keep an agreement to procure insurance when the other party had notice and might have insured himself. Brant v. Gallup, 14 Ins. L. J. 224; s. c. Id. 497; 111 Ill. 487. 60.- A promise to insure, made by one whose business is to insure, is performed by issuing a policy. A like promise, made by one whose business is not to insure, is performed by the promisor procuring a policy in some responsible company, to the full insurable value of the property. *Scranton Steel Co. v. Ward's Detroit & L. S. Line, 40 Fed. Rep. 866. 61.- Where a transportation company agreed to carry a certain cargo and to insure the same, it was held to have substantially satisfied its obligations by causing the cargo to be insured to the full amount of the loss sustained. Id. 62.- Under an agreement by a cotton press company with carriers to insure all cotton deposited with it for compression while in its possession, the company is bound to insure all cotton stored with it or in its presses, to its full insurable value, and covering every interest, including that of the owner. *Lancaster Mills v. Merchants' Cotton Press & S. Co., 14 S. W. Rep. 317; 89 Tenn. 1; 45 Am. & Eng. R. Cas. 423. 65. Alteration of a policy of insurance, made by the insurer or by a third person, while out of the hands of the party claiming thereon, without his consent, has no effect on the right of the insured. Martin v. Tradesmen's Ins. Co., 101 N. Y. 498; 2 Cent. Rep. 514. 66.- A mere alteration apparent on the face of a policy raises no presumption that the same has been fraudulently changed since its delivery to the insured, and does not impose on him the burden of explaining such change before introducing it in evidence. *Hogan v. Merchants' Ins. Co., 81 Iowa 321. 67. Contract as affected by legality or illegality. No recovery can be had under an agreement for illegal insurance, though the money had been paid to the broker. Thompson v. Thompson, 7 Ves. 470 (Eng.) 66 68.- The use of a room for the drawing of a lottery in a building insured as a shoe manufactory " with permission of the assured, will not, in the absence of any prohibition in the policy, avoid the policy either on building or on stock, although the drawing of such lottery was an unlawful act. Boardman v. Merrimack | Mut. Fire Ins. Co., 8 Cush. 583 (Mass.) 69. Wager policies of fire insurance are void at common law, irrespective of any statute. Freeman v. Fulton Fire Ins. Co., 14 Abb. 398 (N. Y.) - 70. Spirituous liquors illegally kept for sale may, notwithstanding, be lawfully insured against destruction by fire. The risks insured against are not the consequences of illegal acts, but of accidents. Niagara Fire Ins. Co. v. DeGraff, 12 Mich. 124. 71. Clause of forfeiture if the building is "used for unlawful purposes." The assured let the store, part for storing whiskey; the tenant intended to sell the liquor in it, and did from time to time retail the same, without license. Held, this habitual use for an unlawful pur 63.- When one party has agreed to keep property of another insured, and neglects that duty, the other party cannot stand by and rely solely on breach of such agreement; as soon as he obtains knowledge of such neglect, however acquired, he must at once take measures to protect himself; if he neglects to do so, the other party is not liable. * Brigham | pose, even if unknown to the assured, v. Wood, 21 Ins. L. J. 461 (Minn.) avoided the policy, for the object of the 64. Alteration of policy. An altera- clause was to define a risk the insurers |