MISCELLANEOUS.

Statute-Income Tax.-The amount of interest arising from investments made by an insurance company for the purpose of carrying on their business, on which income tax had been deducted at its source, amounted to more than the profits of the company for the year of assessment; but the company had during the year received interest on investments on which income tax had not been deducted at its source. Held, that under section 102 of the Income Tax Act, 1842 (5 and 6 Vict. ch. 35), and schedule D. of section 2 of the Income Tax Act, 1853 (16 and 17 Vict. ch. 34), the company was liable to pay income tax on the interest from which income tax had not been deducted at its source.

Clerical, Medical and General Life Assur. Soc. v. Carter (Eng. C. A—, Q. B. Div.), 21 Q. B. Div. Law Reports (Sept. 1, 1888), p. 339.

Statute-Corporation Tax.-The corporation state tax acts of June 7, 1879, and June 30, 1885, are not distinct, but together are a complete scheme of taxation.

Same Same-Capital Stock.—When the shares of a corporation have been taxed in the hands of the share-holder, under section 5 of act of June 30, 1885 (Pub. L. 194), its capital stock can not be taxed under section 4 of act of June 7, 1879 (P. L. 114).

Pennsylvania Co. for Insurance, etc., v. Commonwealth (Pa. S. C.), 13 Central Reporter (Nov. 8, 1888), p. 486.

Statute-"State"-District of Columbia-License of Agent.Under R. S. Ind., 1881, ? 240, Sub. 7, declaring that the word "state," applied to any one of the United States, shall include the District of Columbia and the territories, the District of Columbia is a state within the meaning of sections 3765-3771, prohibiting any agent "of any insurance company incorporated by any other state than the state of Indiana to transact any insurance business without license.

State v. Brigg (Ind. S. C.), 18 Northeastern Reporter (Nov. 16, 1888),

p. 395.

Fire Patrol-Public Charity-Tort of Employee.-The Fire Insurance Patrol of the City of Philadelphia, being a corporation to protect and save property and life in or contiguous to burning buildings, and without capital stock, being supported by contributions from different fire insurance companies, is a public charity, and can not be made liable in damages for the tort of its employees.

Fire Insurance Patrol of Philadelphia v. Boyd (Pa. S. C.), 45 Legal Intelligencer (Nov. 30, 1888), p. 444.

Action for Premium-False Representations by Agent.-When soliciting the defendant's insurance the plaintiff's agent asserted that the "life clause," so called, made a part of the policy furnished by his company, was not contained in the policy issued by a certain rival company, knowing said assertion to be false. Said agent, however, invited the defendant to examine and compare his proposed contract with that of the other company, leaving his blank form for that purpose. Subsequently the plaintiff made application for and was insured in plaintiff's company. Held, that he could not refuse to receive the policy, and avoid his agreement to pay the premium therefor, because of said false statement.

American Steam-Boiler Ins. Co. v. Wilder (Minn. S. C.), 40 Northwestern Reporter (Dec. 1, 1888), p. 252.

Increase of Capital Stock-Resolution of Company-Privilege of Subscribing.-The Insurance Company of North America, at a meeting held November 5, 1880, resolved to increase the capital stock of the company $1,000,000, to be issued to existing holders at par; they subscribing an agreement to pay $10 per share for the stock, and also $10 per share for the privilege of subscribing; the proceeds of the privilege to be added to the surplus of the company. The resolution further provided, that all shares not subscribed for by February 1, 1881, and all not fully paid for by December 15, 1881, should be sold for the benefit of the company. Held, that so much of the above resolution as required the payment of a bonus for the privilege of subscribing, and that the stock should be sold for the benefit of the company if the money was not forthcoming, was unauthorized and void.

Payment under Protest-Recovery Back.—The plaintiff paid the company the $10 demanded for the privilege of subscribing, under protest. Held, that the company can not retain the money, which must be regarded as the plaintiff's, because it never became equitably their own.

Dawson v. Insurance Company of North America (Court of Common Pleas, Philadelphia), 46 Legal Intelligencer (Jan. 4, 1889), p. 4.

Statute-Agent.--In an action for penalties imposed by act Ill., March 11, 1869, section 22, upon agents acting for foreign insurance companies not authorized to do business in Illinois, it is error to direct a verdict for defendant, an insurance exchange, though it required a power of attorney from each person applying for insurance, and sent a circular to each company, stating that it was agent only for the insured, where the evidence further shows that the insurance was solicited by the defendant, and policies issued upon reliance of the representations of its officers, and that the policies were sent to defendant, which took charge of them, and, if accepted by the insured, collected and remitted the premiums, deducting the commissions.

Same--Same.-The above act making the term "

agent" include

"

any person who shall in any manner aid in transacting the insurance business of any insurance company not incorporated by the laws of this State," it is not necessary to prove that defendant was the agent of the foreign company in the ordinary sense of the term.

People v. People's Ins. Exchange (Ill. S. C.), 18 Northeastern Reporter (Dec. 28, 1888), p. 774, 21 Chicago Legal News (Dec. 29, 1888), p. 139, 10 Legal Adviser (Jan. 8, 1889), p. 13.

Insolvent Company-Liability of Stockholders-Statute.-The phrase "liable to the amount of his stock," as used in the constitution of Ala, 1868, art. 13, secs. 2, 3, and in code 1867, sec. 1760, relating to the liability of stockholders for the debts of the corporation, means not simply the amount remaining undue on the stock, but an additional sum equal to the amount of the stock.

Same-Same-Rights of Creditors.-As neither the constitution nor the statute limits the remedy to judgment creditors, it inures to all creditors. And where a life insurance company becomes insolvent and dissolves, the claims of policy-holders become debts due in presenti, and entitle their owners to the benefit of the statute.

Corporation-When Considered Dissolved.—A corporation is dissolved within the meaning of the statute relating to the personal liability of the stockholders, when it makes an assignment for the benefit of creditors, and ceases to do business.

Limitation-When Begins to Run.-The cause of action against the stockholders does not accrue until the dissolution, and the statute of limitations then begins to run.

Organization of Company-Estoppel.-Stockholders and organizers of a life insurance company, as against policy-holders, are estopped to set up the illegality or irregularity of the corporate organization.

Change in Constitution-Contracts-Rights.-The personal liability imposed upon stockholders in corporations by the above sections of the constitution and the code, is a part of every corporate contract thereafter made, and, as to existing contracts, can not be taken away by a subsequent change in the constitution.

Same-Same-Paid-Up Policy-New Contract.-A "paid-up" policy of life insurance issued on no new consideration, and in pursuance of an express provision in the original policy to issue it, is not a new contract, so as to be affected by a change in the constitution made between the time of its issue and the original, abolishing individual liability of stockholders for the debts of the corporation.

McDonnel et al. v. Alabama Gold Life Ins. Co. et al. (Ala. S. C.), 5 Southern Reporter (Jan. 2-16, 1889), p. 120.

Practice-Foreign Company-Quo Warranto.-Held, that quo

warranto is the proper proceeding to try the right of a foreign corporation to carry on its corporate business in this state.

Insurance Commissioner-Actions of-Finality.-The insurance commissioner in issuing certificates to foreign corporations to do business in this state, acts in a ministerial capacity. His determination is not judicial and final, and if our statute prohibit foreign corporations, under certain circumstances, to do business in this state, the authority or license of the commissioner in disregard of that statute would be unavailing.

Retaliatory Law-Construction.--In accordance with the policy of our state, and of the inter-state law of comity, foreign insurance corporations are allowed to carry on business in this state. A foreign corporation which has complied with our laws, should not, as a measure of retaliation, by force of our retaliatory statute, (Section 269, c. 34, Gen. St. 1878,) be excluded from doing business here, upon the ground that the laws of the state where such foreign corporation was created would exclude corporations of this state from doing business there, unless it is clearly apparent that such is the effect of the foreign law. The proper effect of the statutes of New York in this particular being considered doubtful, and the manner of their practical administration being undisclosed, a judgment of ouster against the respondent, a New York corporation, refused.

State, ex rel. v. Fidelity and Casualty Ins. Co. (Minn. S. C.), 41 Northwestern Reporter (Jan. 19, 1889), p. 108.

Taxation by Cities--Statute--Construction. The provisions of ch. 66, Session Laws 1887, amending section 38 of an act to provide a system of revenue, being ch. 77, Comp. St. 1885, were not intended to exempt insurance companies from the payment of a license tax on their occupation or business, within the limits of cities of the second class and villages, when imposed by ordinances; the purpose of the exemption in the latter clause of the section being only to relieve such companies from taxes, fees or licenses under the laws of the state, which might be imposed by the general law under the provisions of section 1, article 9, of the constitution.

City of Columbus v. Hartford Ins. Co. (Neb. S. C.), 41 Northwestern Reporter 9 (Jan. 9, 1889), p. 140.

"Assessment Company "-Statute-Deposit with Treasurer of State. A life insurance company which makes regular assessments, in advance of any loss, thus creating a fund out of which to pay death losses when they occur, is not an assessment company within the meaning of the act entitled "An act in relation to insurance companies and associations on the assessment plan," approved May 18, 1887, and must comply with the provisions of chapter 58, Code 1887, and make such deposit as is required by section 1271 thereof.

Mutual Benefit Life Co. of Hartford v. Marye, Auditor, etc. (Va. S. C. A.), 13 Virginia Law Journal ( January 24, 1889), p. 79.

Unlawful Acting as Agent-Information.—Under Act Texas, July 9, 1879, prohibiting any person from acting as agent of any insurance company which has not complied with the laws of that state, an information charging that the defendant did "Solicit insurance on account of the Kentucky Mutual Security Fund Company of Louisville, Ky.," and transmit "an application for insurance from said company," is insufficient in not alleging that the defendant was acting for an insurance company, but merely that he acted for the Kentucky Mutual Safety Fund Company, which may or may not be an insurance company.

112.

Brown v. State (Tex. S. C.), 10 Southwestern Reporter (Jan. 21, 1889), p.

Statute-Name of Company.-Laws of N. Y., 1877, c. 211, providing that no fire, life, marine or other insurance company shall use a name or title which shall, at the time of its organization, be used to designate a fire, life, marine, or other insurance company already existing under the laws of the state, does not prohibit a life insurance company from adopting a name previously used by a fire insurance company.

Same-Same-Injunction.-When the defendant company organized under the name "Commercial Union Life Insurance Company of New York," the plaintiff company, under the name "Commercial Union Assurance Company," was engaged in the business of fire and marine insurance, which was the only insurance business it could lawfully transact. It was shown that many fire insurance companies have the same names as life insurance companies, and that no uncertainty or confusion arises from that fact; and defendant disclaimed intention to copy plaintiff's name. Held, that it was not shown that injury would result to plaintiff during the pendency of the action to restrain the use of the name assumed by defendant; and that plaintiff was not within Code Civil Proc., sec. 603, providing that when plaintiff demands in his complaint, and it appears that he is entitled to, an injunction restraining the commission or continuance of an act, the commission or continuance of which during the pendency of the action will injure the plaintiff, injunction may be granted to restrain it.

Commercial Union Assurance Co. v. Smith (N. Y. S. C.), 2 New York Supplement, 296.

Foreign Company -- License - Superintendent of InsuranceMandamus.-The determination of the superintendent of insurance in granting, refusing, or revoking licenses authorizing insurance companies to do business in the state involves the exercise of judicial judgment and discretion on his part, which can not be controlled or directed by mandamus.

Dwelling-House Ins. Co. and Western Home Ins. Co. v. Wilder (Kans. S. C.), 20 Pacific Reporter (Feb. 21, 1889), p. 265.