The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1879-03-19

: a transcript thereof accompanied with tn
e certificate OF the Clerk and Sheriff OF the coun
! ", that such judgment or decree remains IN
| paid and that the n "a has not been auspende,
by writ OF error or appeal; that thereupon tn
Treasurer shall pay the amount Of said judg
2 ment or decree. including costs and credit 4
, the amount Of the deposit, 10 be replaced il
r sixty days on notice to the agent; provides
the Treasurer shall not paw out more than til,
deposit IN his hands. and shall not pay owe
any amount on such judgment or decree which
may be stayed by injunction, appeal or writ o
. error, until the same shall have been finall,
determined.
Section 245I. makes It a criminal offence IL
violate any OF the provisions Of the chapter o.
which these sections compose part.
1t was soon found that Companies making
the deposit could withdraw and learn unearn-
ed premiums unprovided for, to amend which
the act OF 1873, amendatory TO the foregoing
sections provided that such unearned
premiums should be a charge upon such de-
post and entitled to payment under section
243O. That act further provides that when
any such Insurance Company shall become
insolvent or shall appear to the Treasurer
he shall Immediately give notice, by adver-
tIsement in some newspaper Of general circt.-
latlon, Tor sixty days days notifying all per-
sons holding claims against such Company for
losses and unearned premiums to present the
same TO the Treasurer. duly certified as re-
quired by the first section OF the act, which is
q agent OF the IlaI
the policy has been cancelled or surrendered
to an agent of the Company, and showing the
amount OF the unearned premiums so due
that at the expiration of thirty DAYS from the
publication (which means after the end of the
sixty days, and ninety days from the first
publication he shall proceed to pay the
claims against said fund provided ii the fund
Is insufficient to pay all first to losses and if
not enough Tor all OF these then pro rata among
them; if 4 residue shall remain after payment
OF losses then to pay unearned premiums ii
enough tor that purpose, il not, then pro rata
upon them, and II enough TO pay all these de-
mands and a surplus remains to pay the same
| to the holder OF the certificate OF deposit.
Another defect in these statutes soon
appeared, by the agents of the Company leav-
ing the State or Ascending or conccaling
themselves 20 that the process provided for by
| section PAP of the code above stated, so the
Act OF 1874 amended this section and provided
Tor proceeding by attachment as in eases Of
! foreign corporations and proceedings thereun-
| der, and subjectIng the Treasurer to the writ
| OF garnishment.
| have given this full recital Of these statu-
! tory provisions. because all OF them have more
| or less application to the questions here in
VOWED. These statutes form scheme to a
| certain end, and must be construed together.
That end Is to give to Insurance Companies
| chartered and doing business in other States
| an opportunity to establish agencies and do
| business in this State; but protection to
| our citizens from fictitious or inSoivent Com
panies created and doing business in other
| States and to give our citizens an opportunity
| to examine the law of their creation, and their
| condition every way, the sworn statement OF
their condition by their principal officers,
| with copy OF their charter, Is required to be
/ filed with the Auditor, and also in the office
of the Chancery Clerk, in each county, in
which the Companies by their agents may de
sire to do business and where liabilities may
! be incurred upon policies issued through such
agents, that the Companies may be sued
judgment obtained, and satisfaction had, with
| ont the policy holder having to 90 out of the
State to obtain it hence, the agreement for
| service OF process and the deposit to be made
| with the Treasurer, and the mode of reaching
| the funds so deposited with him. and that
those taking risks may know the amount OF
| the risks Tor which the deposit is liable
In other words it Is to give as far as posi-
/ bic these foreign Insurance Companies the
| privileges coupled with the liabilities of Com
panies chartered by this State. Such being
the case, the deposit is intended only for those
| who may obtain their policies through the
| agents appointed and doing business in the
! State and under the provisions OF our statutes
| No assignment or transfer of the fund so de-
I posted can be made so as TO defeat the claims
| upon 1t for satisfaction OF losses or uneamed
| premiums upon the policies issued by such
| agents as provided by these statutes Nor
l
! agents to defeat the remedies provided
| by the statute although it may, for any other
purpose. So that in case such Company shall
| cease to do business in this State, either by
| withdrawal of agencies or insolvency, any
person holding policy issued through such
| agent agents, which have not expired, may
| cancel the policy surrender it to the agent
| and demand the unearned premiums, which i
understand to be the amount of premium due
for the unexpired term OF the policy. The
agent is required to estimate and certify the
amount due and that the policy has been can
celled or returned, which has the same effect
This certificate is by law, made evidence of
| the cancellation or return, and the amount OF
| the unearned premiums, but if the agent
| should refuse TO do this duty the policy holder,
| have no doubt, may cancel or tender the re-
| turn of the policy and make proof OF It's value :;
his redress cannot be defeated either by the
| failure of the agent to do his duty or by the
| want of such agent. After, however, all these
| demands have been satisfied. the funds in the
hands of the Treasurer is TO be returned to the
depositor, or its assignee. 1t is the Company
| and not the agent, that makes the deposit, al
though the Company acts through her agent
being incapable of any other action.
After those are satisfied who have this
special lien this fund, l incline to the opin-
ion that it is liable to other creditors of the
depositor or its assignee, but under my view
of the right OF the parties to this suit the de-
/ ClSlOn OF THIS question Is unnecessary.
Let these rules OF law be applied to the
facts of this case, and first as to the claims
| paid by the Treasurer.
1t is admitted that the claims of Parisot are
not founded upon policy or policies issued
| by an agent doing business under the provis-
ions OF the statutes IN this State, hence, under
the construction given to this statute are not
| liens or demands upon this fund, and were i'm
| properly paid by the Treasurer
The claim of Muller is OF the same charac-
| ter, and its payment was consequently improp-
erly made. The payment made to Davis was
upon policy issued by Phelan. an agent in
Tennessee, who had no authority to do bust
ness in this State, and consequently was i'm
| properly made. The payment made to Morris
| Bros. was upon certificate of Phelan, whose
| certificate should not have been received as
| evidence, and there being no other evidence of
the facts necessary to entitle any of said pol
| icy holders to this fund the payment of said
claim was improper.
| The payment to Barrows & Smvthe was
made upon their own certificate for unearned
! premiums. The amount which Is now shown
| by the proof to be for fees due them from the
| Globe Insurance Company was clearly not
| claim upon the fund 1t does not appear
whether their claims for unearned premiums
was upon policies issued by themselves or any
| other agent OF the Globe Insurance Company
| doing business in this State under the statute
nor does 1t sufficiently appear whether or not
| the holders OF the policies had cancelled or
surrendered them as provided by Law to entitle
them TO these unearned premiums, so that the
| evidence upon which the payment was made is
insufficient, and the payment was Improperly
| made.
The result is that complainant is entitled to
decree against each of the parties to whom
said payments were made and who are parties
70 this cause for the sums so improperly re-
ceived by them, reserving, however, TO Barrows
& Smythe and to Morris Bros. the right if they
can show by proof before the clerk, as master,
that any of the sums received by them were
for unearned premiums in policies which had
been cancelled or surrendered by the policy
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