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In addition, in the case before us, the original policy, which was filed with the declaration as part of it, and which is expressly made so by our statute (Code of 1892, secs. 676, 677), plainly discloses on its face, that the defendant herein is a foreign corporation, towit, a corporation under the laws of the state of Georgia. Then, too, by section 3433 of the Code of 1892, and the amendatory act of February 2, 1894, it is now distinctly provided that in suits against insurance companies, process may be served on any agent of the defendant. This provision as to service of process on insurance companies was not contained in the Code of 1857, which was in force when Continental Ins. Co. v. Mansfield, 45 Miss. 311, arose and was decided.

We see no reason for believing that the first summons to Scott county was not issued in good faith, and, under the views already announced, we are of opinion that the suit was instituted within one year after the loss occurred.

2. Was the policy avoided by the anti-mortgage clause contained therein? The evidence shows that the appellee sent to the company's agent who issued the policy, requesting him to send a blank 402 form of application for insurance, and also to send a man to inspect the house on which the insurance was desired. The company's agent did neither, saying, in effect, that he knew the condition of the property. It now appears that this agent was mistaken in two important particulars. He made out a policy without any written application having been made, or, indeed, any application other than that contained in what we have just stated, and sent it to Holmes. This agent, who knew about the property, made out the policy for a single story house, when, in fact, it was a two-story building, and he thought the property was free from encumbrance, perhaps, when, in fact, it was encumbered by a trust deed of record for one hundred and fifty dollars. The first policy, which misdescribed the house, was replaced by another, correctly describing it, the policy sent appellee (who never read it until after the loss occurred, and who was in ignorance of the anti-mortgage clause until his attention was called to it by the company's agent when a settlement of the loss was sought), and the premium paid and accepted.

This is a case, then, in which no application-no formal application was made, because the agent held it unnecessary, inasmuch as he knew about the condition of the property, and a case in which appellee did not know there was any anti-mortgage clause contained in the policy until after the loss, and the ques

tion is, whether the company shall now be permitted to repudiate its contract made, not upon any misrepresentations, or even representations, of the insured, but upon its own knowledge of the condition of the property. If this policy was issued upon the knowledge of the company as to the condition of the property, and after refusal to furnish the usual blank application, whereby the insured would have apprised the insurer of the true condition of the property, and not upon any representation of the insured, then the anti-mortgage clause must be held to have been waived. Any other view would involve the holding by us of this proposition: that the insurance company, waiving 403 any application by the person desiring insurance and issuing a policy upon its own knowledge of the condition of the property, may receive the premiums paid for the indemnity, and defeat a recovery for a loss sustained by inserting in the policy a provision invalidating the contract from the moment it was signed and delivered, thus inducing the insured to rest upon a contract which the company never intended to carry out. This cannot be sound law.

Affirmed.

ACTIONS WHEN DEEMED COMMENCED.-It is undoubtedly the general rule in the United States, except where it has been otherwise provided by statute, that an action is deemed commenced, so far as the parties to it are concerned, from the time that the summons or other process is issued and delivered, or put in course of delivery to the officer, with a bona fide intent to have it served: Extended note to Ross v. Luther, 15 Am. Dec. 344, 345; Montague v. Stelts, 37 S. C. 200; 34 Am. St. Rep. 736, and note; although it is not actually served: Johnson v. Farwell, 7 Greenl. 370; 22 Am. Dec. 203.

CORPORATIONS-ACTIONS AGAINST-PLEADING CORPORATE EXISTENCE.-In an action against or by a corporation it is unnecessary to aver its corporate existence: Holden v. Great Western Elevator Co., 69 Minn. 527; ante, p. 585, and note.

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INSURANCE AGAINST ENCUMFIRE CONDITION BRANCES-HOW WAIVED.-If an insured is not questioned concerning encumbrances on his property or other facts material to the insurance, and does not intentionally conceal them, their existence does not invalidate the policy: Dooly v. Hanover Fire Ins. Co., 16 Wash. 155; 58 Am. St. Rep. 26, and note; Hanover Fire Ins. Co. v. Bohn, 48 Neb. 743; 58 Am. St. Rep. 719, and note. A similar waiver arises where the agent of the insurance company was aware that the insured property was on leased ground, and made out the application himself: Germania Fire Ins. Co. v. Hick, 125 Ill. 361; 8 Am. St. Rep. 884.

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WHITE V. MARTIN.

[75 MISSISSIPPI, 646.]

EXEMPTION OF WAGES from execution does not prevent their being sold for the payment of poll taxes.

Slack & Mitchell, for the appellant.

Robertson Horton, for the appellee.

650 TERRAL, J. Alex. White and twenty-five others filed their bill of complaint in the chancery court of Grenada county against W. F. Martin, tax collector, of said county, alleging themselves to be day laborers, resident citizens of said Grenada county, who have no taxable property, and are employés of the Mississippi Cotton Oil Company at fixed daily wages, ranging from six dollars to nine dollars and fifty cents per week, payable at the end of each week; that said Cotton Oil Company owes said complainants severally for their wages for the week ending February 20, 1897, and that said tax collector is proceeding under section 3826 of the code of 1892, to collect the poll taxes due by the complainants to the state of Mississippi by a sale of the debts due them severally and respectively from said Cotton Oil Company for said week ending February 20, 1897; and they asked and obtained an injunction against the sale of their said debts by said tax collector. The chancellor, upon the hearing, dissolved the injunction, and rendered a decree for taxes, damages, and costs, and the complainants appeal.

We are of the opinion that the debts due complainants from the Cotton Oil Company for daily wages may be sold by the tax collector, under section 3826 of the Code of 1892, to pay the taxes due from complainants to the state. We do not regard Ratliff v. Beale, 74 Miss. 247, as covering this case. All debts of every kind are taxable under our code, as we construe it, and hence may be levied upon for the payment of taxes. The claim of these 651 laborers (the complainants) does not come within the letter of the statute. They have nothing to stand upon except the strict letter of the law, and that is against them.

The decree of the chancery court is affirmed, and the appeal is dismissed at the costs of the appellants.

EXECUTION-EXEMPTION FROM CLAIM FOR TAXES.-No property is exempt from execution in case of default for taxes. Scales v. Alvis, 12 Ala. 617; 46 Am. Dec. 269.

ZACHERY V. MOBILE AND OHIO RAILROAD COMPANY.

[75 MISSISSIPPI, 746.]

CARRIER OF PASSENGERS.-A BLIND MAN CANNOT LAWFULLY BE EXCLUDED from a railway train because he is not attended by any assistant.

Buckley & Halsell, and D. W. Heidelberg, for the appellant.

J. A. P. Campbell, for the appellee.

752 WHITFIELD, J. The demurrer to the special plea should have been sustained. The former opinion of this court. stated this. The blind man in this case "had, at the times referred to in the declaration, when he applied for tickets and permission to travel on defendant's cars, as much skill and ability to travel without help or attendants as any blind man could have." The declaration avers that, though blind, he was otherwise qualified to travel on the railroad cars, and, in fact, had traveled for several years constantly on appellee's railroad without objection. The demurrer to this declaration was overruled, and the present demurrer to the special plea presents the same objections, and, of course, should have been sustained. It is not every sick or crippled or infirm person whom a railroad regulation can exclude, but one so sick or so crippled or so infirm as not to be able to travel without aid. And so it is not every blind person, but one who, though blind, is otherwise incompetent to travel alone on the cars. Otherwise we would be compelled to hold that one suffering from sickness, no matter how slight, or one who had lost an arm or leg, or one, no matter how active physically, and no matter how expert a traveler, though being blind, could be shut out by such a rule. And this ought not to be, and cannot be, sound law. We are asked to hold that a regulation that no blind person whatever shall travel unaccompanied by an assistant, no matter how skillful or expert a traveler he may have been, or may be, and no matter how perfectly 758 qualified in every other respect to travel on cars unaccompanied, is a reasonable rule. This cannot be sound. Each case must depend on its own facts, and the reasonableness of the refusal to sell the blind person a ticket must, on principle, depend not on a universal, arbitrary, and undiscriminating rule like this one, but on the capacity to travel unaccompanied, of the particular blind person, as shown by the proof on that point in his case.

Judgment reversed, demurrer to special plea sustained, and remanded.

CARRIERS OF PASSENGERS.-A common carrier of passengers cannot refuse to carry a person, otherwise qualified, upon the sole ground that he is blind: Zachery v. Mobile etc. R. R. Co., 74 Miss. 520; 60 Am. St. Rep. 529, and note.

PEOPLE'S BANK v. SMITH BROTHERS & COMPANY.

[75 MISSISSIPPI, 758.]

GARNISHMENT-QUESTIONS WHICH MAY BE TRIED UPON.-In a proceeding by garnishment, where the person garnished admits having in his possession the moneys garnished, but claims that they do not belong to the defendant in the writ, but have been by him transferred to another, the court, if the plaintiff claims this transfer to be fraudulent and void as against him, has power to try and determine this issue.

F. M. Barber and Mayes & Harris, for the appellant.

White & Neville, for the appellee.

758 WHITFIELD, J. It is true, as held in Porter v. West, 64 Miss. 548, that the plaintiff in attachment has no right to suggest for the garnishee that a third party claims the fund in the hands of the garnishee, that suggestion being permitted to be made by the garnishee, to protect him against a possible double payment of the debt garnisheed. But the case holds nothing further than that, in order to make such third person a party litigant to the issue, as between the plaintiff and himself, the garnishee in such case not making himself any contest, but paying the money into court and being discharged, the garnishee must suggest that such third party has a claim: Code 1892, sec. 2143. In order that a third party may thus become a party to the record, and "contest with the plaintiff the right to the money, debt, or property," it is a statutory condition precedent that he must be suggested by the garnishee as such claimant, 759 and be made such party litigant as a result of such suggestion by the garnishee. West was an assignee in a general assignment for creditors, and voluntarily came in propounding a claim to the debts due the assignors by the garnishees, they (the garnishees) having admitted they owed the debts to the assignors, and not having suggested that any third party had any claim to them. That is the whole extent of that case. It is no authority for the proposition that a garnishee who has been sum

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