Cross References Effect Appointment of Attorney for Service of Process. 122.- Notes on removal of causes to U. S. court. See 1 L. R. A. 65; 3 Id. 322, 545, 554, 572; 5 Id. 476; 11 Id. 216, 567. 122a. Cross references. 118.- A cause is not removed to the *Farmer v. National Ins. Co., 50 Fed. federal court by presentation of a petition | Rep. 829. for removal and a bond to a judge of the state court sitting in chambers, at a time when no court is in session, and, upon his refusal to act, filing them with a clerk of the state court on a day not a court day, although they are afterwards, and after the expiration of the time for removal, presented to the state court. Williams v. Massachusetts Ben. Asso., 47 Fed. Rep. 533. * 119.- Presentation of the petition and bond for the removal of a cause to the state court is not essential to the removal, although the safer practice. *Noble v. Massachusetts Asso., 48 Fed. Rep. 337 (U. S. Cir.) See section ten. Agents. No. 348. 123. Effect appointment of attorney for service of process. The Illinois statute requiring foreign insurance companies to appoint an agent upon whom process may be served does not contemplate that service cannot be made on any other than the one so designated. Johnson v. Hanover F. Ins. Co., 11 Biss. 452 (U. S. Cir.) 124.— In Missouri a foreign insurance company is prohibited from doing busi 120.-- Removal of a cause is not effectedness until it has filed with the insurance by filing the petition and bond with the clerk of the supreme court of the state of New York, in one county, where the clerk of such court in another county has the custody of the records in the cause. Id. 121.- Act of Congress March 3, 1887, as corrected by Act of August 13, 1888, | amended the Act of 1875 in several important particulars. First. Matter in dispute must exceed the sum or value of $2,000, exclusive of interest and costs. Second. Petition and bond for removal must be filed in the state court at the time, or any time before the defendant is required by the laws of the state or the rule of the state court in which the suit was brought, to answer or plead to the declaration or complaint of the plaintiff. Third. It is in terms made the duty of the state court to accept the petition and bond and proceed no further in such suit. Fourth. For an improper removal the remedy is by a motion to remand the cause to the state court, and if remanded no writ of error or appeal can be allowed. See Act March 3, 1887, as corrected by Act August 13, 1888. | commissioner a certificate stipulating that service may be made on him; and it will be presumed that the company has complied with the law, and default will be entered on service on the commissioner, though he has refused to receive the summons. Knapp, etc., Co. v. Nat. Mut. F. Ins. Co., 30 Fed. Rep. 607. 125.- An insurance company having, as required by the law of a territory, filed an instrument appointing an attorney to acknowledge service of process is bound by service on such attorney until it makes a due appointment of a new agent to receive service, even as to a person who did not know of such original appointment. Gibson v. Mfrs'. Fire, etc., Ins. Co., 144 Mass. 81. 126.- In appointing the insurance superintendent as attorney upon whom process against a foreign insurance company may be served, an appointment of such superintendent, and a certificate to that effect, without giving his individual name, are sufficient. *Lafflin v. Travelers' Ins. Co., 121 N. Y. 713. 127. And an appointment so certified and authenticated as to satisfy the superintendent it had been made, is sufficient to meet the requirements of the statute. Id. 121a.- An appearance specially in the state court to object to service of process, and subsequent removal by defendant to the U. S. circuit court, does not operate as a general appearance, preventing the latter court from setting aside the service. The superintendent of insurance cannot, as attorney of a foreign corporation, admit due service of process by mail. | Rep. 884. 128.-Appointment of an attorney by a foreign corporation, with power to receive service of process operates as a consent to be sued in the jurisdiction where such power is filed. *Gilbert v. New Zealand Ins. Co., 21 Ins. L. J. 428; 49 Fed. Rigat to Contract Outside of State Law of Which State Governs. 129. Right to contract outside of bia Fire Ins. Co. v. Kinyon, 8 Vroom, 33 state. When party holds himself out as|(N. J.) agent of a foreign company, and forwards 136.- Although company may not an application to a broker in Boston, who have complied with laws of a certain obtains policy from a company in New state authorizing it to do business therein, York, and delivers it to the former such fact does not make its policy void, who delivers it to the assured and re- having been issued in another state upon ceives a note for the premium, held, that an application forwarded by mail. Lamb the transaction was an indirect carrying v. Bowser, 7 Biss. 315 (U. S. Cir.) on of insurance business contrary to statute, and that such note could not be collected. Jones v. Taylor, 2 Pugsley, 391 (N. B.); and see Id. 103. 130.— Insurance companies incorporated in one state are legally competent to negotiate and enter into contracts in other states. Kennebec Company v. Augusta Ins. & Banking Co., 6 Gray, 204 (Mass.) 131.- An insurance company of another state may lawfully send a surveyor to receive applications for insurance in the state of Pennsylvania. Thornton v. Western Reserve Farmers' Ins. Co., 31 Pa. 529; see, also, s. c., 1 Grant Cas. 472. 137. It is not competent for a legislature to declare that the citizens of the state shall not be allowed to make such contracts as they please out of the state for the insurance of their property. Id. 138.- Issuing a policy of insurance in one state by a corporation of that state on property in another state is not carrying on business in that state, within the meaning of a statute requiring certain conditions to be performed by foreign corporations before they can be allowed to carry on business. * Marine Ins. Co. v. St. Louis, I. M. & S. R. Co., 19 Ins. L. J. 379, 695; 43 Am. & Eng. R. Cas. 79; 41 Fed. Rep. 643. 139. A foreign insurance company which has issued a policy to one who re 132.- A contract of insurance made with a party resident in New Hampshire, and upon property situated in that state, by a Massachusetts mutual insur-ceived it in good faith and without notice ance company, which had not complied that the company had failed to qualify in New Hampshire, with the obligations itself to transact business in the state is and requirements imposed by the laws of estopped from denying its authority to Massachusetts upon the like corporations issue the policy; and the fact that it dichartered by the laws of New Hampshire rected its agent to cancel the policy, if it and acting in that state, is invalid under is not done, does not lessen its liability. the statutes of New Hampshire. Haver-* Watertown F. Ins. Co. v. Rust, 30 N. hill Ins. Co. v. Prescott, 42 N. H. 547. East. Rep. 772; aff'g 40 Ill. App. 119. 140. Law of which state governs. 133.- A policy of insurance negotiated in Indiana by a foreign insurance com- The agent in this state of a foreign insurpany or its agent, without a previous com-ance company is requested by letter to pliance with the act of the legislature of issue a policy on the writer's hotel in New that state of June 17, 1852, is void. Ris- Hampshire, which policy is issued and ing Sun Ins. Co. v. Slaughter, 20 Ind. 520. sent; held, the lex loci contractus is this state. Bailey v. Hope Ins. Co., 56 Me. 474. 134.- A policy of insurance delivered by a broker within the state who receives 141.- When policy is signed by the premium therefor, of a foreign company officers of a company in Missouri, but the which has not complied with statute gov-condition is attached that it shall have erning its admission to state, cannot be no validity until countersigned by an enforced in courts of such state. Frank-agent in New York, where the policy is lin Ins. Co. v. Louisville Packet Co., 9 fully executed and delivered, held, that Bush. 590 (Ky.) 135.- A contract of insurance made in Pennsylvania on property situated in New Jersey, which would be void under the laws of the former state, is valid and will be enforced in New Jersey. Colum the law of the latter state governs the rights of the parties under the contract. Todd v. State Ins. Co., 11 Phil. 355 (Pa.) 142.- Where application is forwarded from one state to agent of company in another state, and policy is issued by such Where Assured May Seek Remedy. agent, the contract must be governed by ever the company can be found without the law of the latter state. Lamb v. Bow-regard to the place of the contract or of ser, 7 Biss. 315 (U. S. Cir.) the property. Mohr v. Insurance Co., 12 Fed. Rep. 474. 143.- Where a company signs and seals in Ontario a policy, and sends same to its agent in New York to be filled up and issued as insurances might be effected, and a policy is accordingly issued in New York without payment of the premium, held, that the law of Ontario governed the contract, and that the agent had no power to waive prepayment of the premium. Clarke v. Union Fire Ins. Co., 6 Ont. 223 (Can.) 149.- An insurance company of one state and resident there, but doing business in another through an agent there may be sued there by service on the agent whether he has or not express power to accept such service. Moch v. Virginia, etc., Ins. Co., 4 Hughes, 61 (U. S. Cir.) 150.- A non-resident may maintain an action in Massachusetts against a foreign insurance company doing business 144.- Where a policy of insurance is there, upon a contract made and the subissued on property in one state by a com-ject matter of which is situated, in another pany in another state, and it does not state, though the only service of process appear where it was delivered or payable; is made upon the Massachusetts insurance or where the contract was made or the commissioner. Johnston v. Trade Ins. premium paid, it may be inferred that Co., 132 Mass. 432. the contract was made in either state, as readily as in the other. *Pennypacker v. Capital Ins. Co., 8 L. R. A. 236; 45 N. W. Rep. 408 (Iowa). 145.- A policy issued within the state by the state insurance commissioner as agent for a foreign insurance company, not naming the place of payment of loss, is payable within the state. * Moshassuck Felt Mill v. Blanding, 20 Ins. L. J. 475; 21 Atl. Rep. 538 (R. I.) 146.- Where the assured was a resident of Missouri, and the application for the policy was signed there, and the policy was delivered and the premiums were paid in Missouri, the policy is a Missouri contract and governed by the laws of Missouri, although the insurer was a New York corporation doing business in Missouri and the policy was executed at its office in New York. * Equitable Assur. Soc. v. Pettus, 140 U. S. 226; 35 L. ed. 497; 11 Sup. Ct. Rep. 822. 147.— An insurance policy issued by a company of one state is the contract, and must be governed by the law, of another where the insurance was effected, the policies countersigned and delivered by an agent of the company residing therein, and the moneys due on the policies paid. *Re Breitung's Estate, 46 N. W. Rep. 891; 47 N. W. Rep. 17; 20 Ins. L. J. 168; 78 Wis. 33. 151.- Under Ky. Code § 71, providing that an action against an insurance company may be brought in the county in which its principal office or place of business is situated, or, if it arise out of a transaction with an agent, in the county where the transaction took place; and § 72, providing that, except in the actions mentioned in preceding sections, an action against a corporation having an office or place of business in the state, or chief officer or agent residing in the state, must be brought in the county in which such office or place of business is situated, or in which such officer or agent resides; or, if it be upon a contract, in such county, or in the county in which the contract is made or to be performed—an action on a contract of insurance may be brought in the county in which the agent with whom it was made resides, although the contract was made and the plaintiff resides in another county. Owen v. Howard Ins. Co., 10 Ky. L. Rep. 608; 10 S. W. Rep. 119. 152.- A stipulation in a policy of insurance issued in a foreign country, limiting the remedy for breach of the contract to a particular court in the foreign country, is not valid. *Slocum v. Western Assur. Co., 42 Fed. Rep. 235. 153. A contract of fire insurance made in Iowa does not limit the right to bring an action for the loss of the prop148. Where assured may seek erty to that state; but the action is tranremedy. An action on a policy is transi- sitory in its nature, and may be brought tory, not local, and may be brought where- | wherever service may be had on the com Deposit with Superintendent Cannot be Diverted. pany. *North America Ins. Co. v. McLimans, 19 Ins. L. J. 542; 44 N. W. Rep. 991; 28 Neb. 653. 425, (U. S. Cir.); Watertown Fire Ins. Co. v. Simons, 9 Ins. L. J. 597; 96 Pa. 520. 159.- Comp. L. § 1,683 (Mich.) govern154.- Neb. Code § 55, authorizing the ing insurance by agents of foreign corporabringing of an action against an insur- tion, applies to operations within the ance company in any county where the state and against the representatives of cause of action or some part thereof arose, foreign incorporated and unincorporated is remedial, and not restrictive in its na-interests. It does not assume to forbid ture; and the action may be brought the making of contracts of insurance in where the cause of action or some part another state, nor does it assume to inthereof arose, although the company has validate such agreements. A company no agent in that county. Id. sued upon a policy issued in another state, 155. Deposit with superintendent and which has not complied with the cannot be diverted. Securities in excess of $200,000, deposited by a foreign insurance company with the superintendent of insurance, to be held by him and his successors for the benefit of policyholders in the United States, are held under the official trust created by N. Y. Laws 1853, chap. 466, requiring the deposit by such companies of a sum not less than $200,000, for the benefit and security of United States policy holders, and cannot be removed from his custody for other purposes of the corporation by order or decree of the courts. *Lancashire Ins. Co. v. Maxwell, 40 N. Y. S. Rep. 729; 16 N. Y. Supp. 53; 61 Hun, 360. 156.— An insurance company cannot, even with the consent of its stockholders, make a valid voluntary assignment of its property and thus withdraw itself and its property from the control of the state insurance department, after it has violated the laws made for the regulation of insurance companies. Williams v. Commercial Ins. Co., 75 Mo. 388. 157. Statutory provision may be waived. Statutory enactments made for the benefit of persons who are insured may be waived by an express agreement in the policy, for example by a condition that no recovery shall be had by insured, unless suit is brought within a given time. Tasker v. Kenton Ins. Co., 58 N. H. 469; and see subd. XIII. Construction; Effect of statutory provisions. statute, cannot avail itself of a defense founded upon such non-compliance, upon the ground of want of authority to make its contract. Clay Ins. Co. v. Huron Manuf. Co., 31 Mich. 346. 160.- When company omits to endorse upon its policies the statutory conditions with variations as prescribed by R. S. of Ontario, they must be read as being subject to the statutory conditions only. Hobbs v. Guardian Ins. Co., 12 Duval 631 (Can. Sup.); and see McIntyre v. National Ins. Co., 5 Tupper 580 (Can.); Parsons v. Citizens' Ins. Co., 4 Id. 96; Same v. Queen Ins. Co., Id. 103. 161.- The Ontario Insurance Act, 1 R. S. Ont. Ch. 162, does not apply to property outside of Ontario. Cameron v. Canada Fire & M. Ins. Co., 6 Ont. 392 (Can.) 162.-Where a company prints its own conditions but fails to print the statutory ones, it is not a case where the policy must be deemed without any conditions at all. Only the statutory conditions shall be a part of the policy notwithstanding any conditions imposed by the company, unless latter indicated as variations, as prescribed by the Ontario (Canada) Act. Citizens' Ins. Co. v. Parsons, L. R.7 App. Cas. 96 (Eng.); 1 Cas. Brit. N. A. Act 265; aff'g 4 Duval, 215 (Can.); 4 Ont. App. 96, 103; 43 Up. Can. Q. B. 261, 271; and see Johnson v. Western Assur. Co., 4 Tupper 215 (Can.) 163.- Divisional court may determine whether a condition is just and reasonable, and it is not necessary that it should first have been raised at the trial. Reddick v. Saugeen Mut. F. Ins. Co., 15 Ont. App. 363 (Can.); below 14 Ont. 506. 158. Validity of policy as affected by compliance with statute. Company cannot plead non-compliance with statute governing its admission to the state as a defense to an action upon its contract or policy. Swan v. Watertown Ins. Co., 10 Ins. L. J. 392; 96 Pa. 37. S. P. Daniels v. 164. An insurance contract made by Citizens Ins. Co., 11 Rep. 420; 5 Fed. Rep. | a foreign company before it has complied Cross References with the statute of the state, and obtained a license, and filed a copy of its by-laws with the Secretary of State, is void. Lycoming Ins. Co. v. Wright, 55 Vt. 526. 165.- Company cannot plead noncompliance with statute authorizing foreign companies to do business within the state, as a defense to action on the policy. Ganser v. Fireman's Fund Ins. Co., 15 Ins. L. J., 555; 34 Minn. 372. 166. Where an insurance company prohibited from doing business in more than three counties issued policies outside of those counties after the passage of an Act purporting to give authority to do so, but which was subsequently declared unconstitutional, a policy of insurance issued in the prohibited territory is void. Eddy v. Merchants' M. & C. Mut. F. Ins. Co., 72 Mich. 651; 40 N. W. Rep. 775. 167.— Where the agent of a foreign fire insurance company reported in due course the issuing of a policy and accepted and transmitted the premium it was held that the company could not be heard to allege that the policy was ultra vires and void, because there was no evidence the company was authorized to transact business in Pennsylvania. *Hoge v. Dwelling House Ins. Co., 138 Pa. 66. 168.- A statutory prohibition against insurance by foreign corporations without compliance with certain requirements, under a certain penalty, does not make a policy issued without such compliance void as to the insured. *Pennypacker v. Capital Ins. Co., 8 L. R. A. 236. 45 N. W. Rep. 408; 80 Iowa, 56. 168a. Cross references. Section two. Other Special Cases. issuing any policies. Fitzsimmons v. City Fire Ins. Co., 18 Wis. 234. 170.- The provision of the Mass. statute (1864, chap. 196) that "the conditions of the insurance shall be stated in the body of the policy," is complied with by a statement of substance of condition on face of policy, with distinct reference to schedules or details printed upon a subsequent page; a mere general declaration upon the face of policy that it is made and accepted in reference to conditions annexed, and that they are part of the contract is not sufficient. Mullaney v. National Ins. Co., 118 Mass. 393. 171.- It seems that the operative force of every condition in an insurance policy in Canada outside of those authorized by the statute is made to depend upon the opinion of the court as to whether the conditions are just and reasonable, and if it does not so hold they shall be absolutely null and void. Morrow v. Waterloo County Mutual Fire Ins. Co., 39 Up. Can. Q. B. 441; see subdivision XV, Statutory Provisions. No. 1. 172.- Company cannot avail itself of conditions of insurance imposed by the statute unless such conditions are printed on the policy as prescribed, and if the company has neglected to print such conditions, it must be held as against the assured that the policy is issued without conditions of any kind. Frey v. Mutual Fire Ins. Co., 43 Up. Can. Q. B. 102. But see Nos. 160, 162. 173.- Although a policy may be deemed to be without conditions, conditions indorsed not being in accordance with the statute, still the conditions may be considered in reference to company's Subd. I. Measure of damage. Nos. 60, intention as to authority of its agent. 69, 73, 74. Parsons v. Queen Ins. Co., 29 Up. Can. Section nine. Warranty. Nos. 35, 460. C. P. 188. See No. 160. 174. The legal effect of the statutory No. conditions printed in a policy is not altered by size of the type. Ballagh v. Royal Mutual Ins. Co., 44 Up. Can. Q. B. 70. 169. Other special cases. In a complaint on a fire policy issued by a foreign insurance company, it is not necessary to allege that the defendant had complied with the statute (of Wisconsin) requiring such companies to file certain statements under oath with the secretary of state, and obtain his certificate of authority to transact business before 175.- A policy against loss by fire is not an "instrument ascertaining the plaintiff's demand" such as authorizes rendition of judgment without writ of inquiry under the Alabama code. *Home Protection etc. v. Caldwell, 85 Ala. 607. 176.- Parol evidence is admissible to prove that a license has been issued by |