
    *CITY FIRE INSURANCE COMPANY OF HARTFORD, plaintiff in error, v. JOHN CARRUGI, defendant in error.
    (Atlanta,
    January Term, 1871.)
    1. FOREIGN CORPORATION —JURISDICTION —SERVICE OF PROCESS.—A foreign corporation doing business in this State, is subject to the jurisdiction of the Courts of this State, ii it can be served with process; and, as, by our law^ any corporation may be served with the process of a Court having jurisdiction of the suit, by serving (iany officer or agent of such corporation so any foreign corporation having an officer or agent here, may be served by serving its officer or agent. ______
    2. PLEA—SURPLUSAGE—VERDICT — EVIDEN CE—UNDER PLEA OF GENERAL ISSUE.—When there is a plea of the general issue, and, also, a special plea setting up matter of defense, which might be proven under the general issue, and the Court dismisses the special plea as surplusage, this is not such error as will require the verdict to be set aside, if the Court, in fact, allow the evidence under the plea of the general issue.
    3. EVIDENCE—DEPOSITION—PRESUMPTION OF LAW.— Where evidence is taken by commission, and it appears by the answers that the witness does not understand the English language, the Court will presume, in the absence of proof to the contrary, that the commissioners understood the language of the witness.
    4. SAME—SAME—WITNESS.—It is no objection to the use of testimony taken by commission if, after it is read, the witness—a female—appear, and is examined as a witness.
    5. SAME—PROOFS OF LOSS—INSURANCE.—Where there was a question of what and how much was lost by a fire, and there was a list of articles produced, and evidence introduced going to show that it was a true list, it was not error-in the Courts to permit the •list to go to the jury for»their consideration, simply because some of the articles on the list were such as were not covered by the policy of insurance, on which the suit was brought.
    ■ 6. INSURANCE—APPLICATION FOR INSURANCE.—It is not a violation of that condition of a policy of insurance which requires everything to be stated in the application, naturally affecting the risk of the insured, to fail to state that he is insolvent, or that there are judgments against him which are a lien upon the property.
    7. SAME—CONDITIONS—NOTICE.—Where the charter of a foreign insurance company contains a provision prescribing certain duties and conditions, upon those insuring with the company different from those imposed by the general law, a plea setting up a failure to comply with such conditions by the assured is demurrable, unless it alleges that the assured had notice of the conditions at the time the contract of insurance was entered into.
    ' «. SAME —SAME—SAME—PRIOR INSURANCE—AGENT-NECESSITY FOR WRITING^—If the agent of an insurance company do, in fact, receive notice of a prior insurance from the assured, and do, notwithstanding, proceed to issue a policy and receive the premiums agreed upon, the .policy is not void, because ¡notice of said prior insurance is not' endorsed in writing upon the policy, as required by the conditions contained in the policy.
    Jurisdiction. Pleading. Evidence. Waiver. Before Judge Johnson. Muscogee Superior Court. May Term, 1870. *Carrugi sued the City Eire Insurance Company of Hartford, Connecticut, as “a corporation existing by and under the laws of Connecticut, with power to insure against losses by fire,.doing business in Columbus, Georgia, as an insurer against losses by fire, by its agent, Robert R. Murdock.” He averred that on the 4th of January, 1867, he paid said agent $45 00 as premium and, iti consideration thereof, the agent delivered to him a policy of said company, insuring him against loss by fire, for one year, for $1,000 00 on the furniture in the second story of the building described, and $2,000 00 on the stock of furniture and fixtures in the lower story; that on the 24th of March, 1867, said insured property was destroyed by fire; that, according to the requirements of said policy, he made proof of said loss and demand of payment, and payment was refused.
    In his petition he also set forth the history of the matter in substance, thus: The day before this policy was taken out he applied to Murdock for insurance for $6,000 00, told him that Mr. Hill had already insured the same property for $5,000 00, took Murdock through the lower story and exhibited the stock, furniture and fixtures to him and offered to show him that up stairs, but Murdock would not go up, but said he would make the insurance for $6,000 00; that, on the next day, Murdock brought him the .policy sued on and another, in another company, for the same amount, and explained that he had put it in two companies to divide the risk; read to him the written portions of said two policies, received the premiums on each and delivered them up to him: that trusting to Murdock’s known integrity, he did not read the policies but, since the fire, has discovered that the policy sued on contains these words: ‘“If 'the assured or any other person or persons interested shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not,) against loss or damage by fire on the property hereby insured, or any part thereof, not consented to by this company, in writing, and mentioned in. or endorsed upon this oolicv, then this insurance *shall be void and of no effect.” He averred that the foregoing conduct of Murdock was a waiver of said condition, or if not, a fraud which vitiated said condition, and he prayed that the iurv should nass unon that matter as if a bill were filed to get rid of the effect of said condition of the policy. The value of the lost property being averred, he prayed judgment for the face of the policy. Service was perfected by serving Murdock, the agent.
    
      Carrugi also sued upon said other policy issued by Murdock, as agent of the Phoenix Insurance Company of Hartford, Connecticut, for the other $3,000 00 and, by consent, that suit was. to abide the result of this one.
    The defendant pleaded to the jurisdiction, because said defendant was, at and before the bringing of this suit, “a corporation. resident of the State of Connecticut, existing under and by-virtue of the laws of said State of Connecticut, and resident therein, and was not, at the commencement of said plaintiff’s, action, a citizen of, or resident within, the State of Georgia,” and that the defendant had not been served with the process. Upon demurrer, this plea was overruled. Defendant then pleaded the general issue, and defendant then pleaded—2d. “That said stock of furniture was not consumed, burnt, lost, or destroyed by fire in the manner and form as plaintiff hath alleged; and that by the making of said claim or demand upon defendant, said plaintiff hath attempted to defraud defendant by attempting to receive an amount largely in excess of his actual loss, whereby said policy, according to the provisions thereof, is void and null.”
    3d. “Plaintiff did not, according to the condition of said policy, as soon after the loss as possible deliver, as particular an account of their loss and damage, as the nature of the case would admit, and, in order to support his said claim, did, on the 22d of April, 1867, in the county of Muscogee, make a certain affidavit in support of said claim, and there was false swearing, with intent to defraud defendant, in -violation of the provisions in the body of the policy contained, said plaintiff having then and there sworn that the amount annexed to said affidavit contained- a true statement of his *loss by fire, and the whole amount of what he saved from the fire, and showing -the amount, of loss; that the values set down in the account are, in case of articles obtained at a distance from Columbus, to the best of his knowledge, information and belief, the prime cost of such articles, with the expense of transportation added; and, in the case of other articles, the ordinary selling price of said articles, in Columbus, amounting to an aggregate of $14,307 00 loss; whereas, said-account did not contain a true statement of the said loss or damage, contrary to the body of said policy and the conditions of the same, whereby said plaintiff hath forfeited all claims on defendant.”
    4th. “At the-time said insurance was made, defendant inquired of said plaintiff whether there was other insurance, or whether the property had been insured in any other office, and plaintiff failed to inform defendant of the fact, although at the time there existed other insurance, to-wit: on the furniture, $2,000 00 and on the merchandise and fixtures, $3,000 00, and that, had said information been given, defendant would not have made said policy.”
    
      The fifth plea reiterated the averments of the fourth and that Carrugi’s failure to give notice of said prior insurance was such a fraudulent concealment as avoided the policy.
    The sixth plea-averred that, after said policy issued, Carrugi obtained other insurance on said property in the Atlantic Fire Insurance Company of Brooklyn, New York, without the knowledge or consent of defendant, and without having the same mentioned in writing in or on said policy, and thereby lost his rights cinder said policy according to its terms.
    Before going into the trial, the Court ordered the said third plea to be stricken, upon which ground does not appear by the record. /Plaintiff’s counsel read in evidence the policy of defendant. It is in the usual form. It contained the following stipulations material to this cause. The company was not to be liable for musical instruments and certain other things named, “unless separately and specifically insured.” “If the assured, or any other person or parties interested, *shall have existing, during the continuance of this policy, any other contract or agreement for insurance (whether valid or not) against loss or damage on the property hereby insured, or any part thereof, not consented to by this company, in writing, and mentioned in or endorsed upon this policy, then this insurance shall be void and of no effect. And in case any other contract or agreement for insurance (whether valid or not) against loss or damage by fire exists on the property hereby insured, or any part thereof, whether prior or subsequent to the •date of this policy, the insured shall not, in case of loss or damage, be entitled to demand or recover of this company any greater portion of the loss and damage sustained than the amount hereby insured shall bear to the whole amount of such contracts or agreements for insurance.” “Any interest in property insured not absolute, or that is less than a perfect title, must be specifically represented to the company and expressed in this policy, in writing, otherwise the insurance shall be void.” Alienation of the property avoided the insurance, and it stated that ■“entry of a foreclosure of a mortgage or the levy of an execution shall be deemed an alienation of the property.” In the clause specifying when and how the proof of loss was to be made, and what it should contain, and that the assured should be subject to examination, etc., was this condition: “If there appear anv fraud or false swearing, the insured shall forfeit all claim under this policy.” The company was not to be liable for more than the actual value of the property insured or what it would take to replace it, and the company was to have the right to replace at its option. Reinsurance for anv other insurance company was to be on the basis of joint liability with said company, and in no event was the company to be liable for a sum greater than such portion as the sum thereby reinsured bears to the whole sum insured on the property by the company re-insured, and in case of loss, this company to pay their pro rata proportion,- at the same time, manner and form, as the company reinsured. It concluded with the declaration that “this' is policy is made and accepted upon the above express conditions.” The written portion of *the policy was to the effect stated in the declaration; but it was nowhere written in or on said policy, that there was any other insurance on said property, or that defendant consented to such.
    Mrs. Carrugi’s interrogatories were read over thea objection of defendant. She testified that the commissioners read over to her the bill of particulars of the goods lost or missed after the fire; that she could not read English at all, but that the commissioners—one of them acting as interpreter when she did not understand Engish—asked her as to each item; she thought the values were fair as affixed to this bill, and gave her means for knowing their value. She testified that her husband did tell Murdock before this policy was delivered, that Hill had already insured the property for $5,000 00, and that Murdock examined below and declined examining above, and, when he brought the policies, explained why he made two as aforesaid, read over to Carrugi only the written part of the policies, delivered them and received the premiums. It did not appear on the face of these interrogatories that said commissioner, who acted as an interpreter, was sworn as an interpreter.
    Miss Carrugi’s interrogatories were also read. She thought the list aforesaid correct, but knew not the value of the articles. She also testified to the notice of prior insurance for $5,000 00 with Hill and that Murdock declined examining up stairs before insuring. And this last was also testified to by a stranger, who was present when Murdock declined going up stair's, and he said he heard Hill’s name mentioned, but in what connection he did not remember. Miss Carrugi was then put upon the stand and examined. She then testified that said list was made up after the fire by her father, her mother and herself putting down all the missing articles which either could remember; that she remembered particularly only the furniture and clothing. Plaintiff testified that'he told Murdock that Hill had insured him for $5,000 00 and he wanted $6,000 00 more insurance; that Murdock looked below, expressed himself satisfied and would not go. above, made out two policies, etc., as aforesaid, and that his *wife and daughter and said stranger were present during said conversation. He said he remembered all the articles in the list except the clothing and furniture; said that all his goods, etc., lost by said fire were worth from $18,000 00 to $20,000 00: that the fire occurred in March, 1868, and the claim and demand for payment was made in Aoril. 1868. He admitted that after this policy was made, his $5,000 00 with Hill expired and was renewed, and that he did not inform Murdock of this renewal. He was asked whether the property insured was not mortgage, whether there was not large judgments against him, and whether he was not insolvent, but upon objection by his counsel, the Court suppressed the answer.
    The plaintiff’s counsel then read to the jury said list of articles. It contained a bill of particulars of furniture, etc., on the upper floor, put down at $1,967 50 (among other articles was a piano at $550 00); wearing apparel, aggregated at $371 45; liquors, etc., in front store, aggregated at $3,422 10; other liquors and restaurant furniture, aggregated at $2,642 34; property destroyed by the fire, but not included in the list as sworn by as aforesaid, $779 00; propertry saved and not in said list, $953 75; Counter, $75 00; making a total valuation of the contents of the house, at the time of the fire, $10,271 14. A witness testified that the prices for the articles in said list were fair, and he and several others testified that Carrugi had a good stock. .One testified that his furniture was worth $1,400 00. Here plaintiff closed.
    For defendant, Murdock testified that the stock was meager; that he did not go above because Carrugi said the upstairs was the apartments of his wife and daughter, and that he asked as to other insurance, but that Carrugi did not tell him of having any, nor did he know it till after the fire; and he said he and Carrugi were alone when the conversed, except that Mrs. and Miss Carrugi were about twenty feet off, in another room, separated by a partition. He said he had no authority to issue a policy without entering prior insurance thereon. Hill testified, that he, as agent of the Atlantic *Fire Insurance Company of Brooklyn, New York, insured said property for $5,000 00, and renewed it on the 16th of January, 1867, when it had expired; that he did not know he then had other insurance; or would not have renewed his policy, because he thought $5,000 00 was fully three-fourths of the value of the property and, that he had refused to insure it for more than $5,000 00. Defendant’s counsel then read in evidence said policy for $5,000 00, issued by Hill on the 16th of January, 1866. They tendered in evidence a copy of defendant’s, charter, but the Court rejected it. It contained the folowing:
    “Sec. 11. That in every application for insurance, the applicant or applicants shall well and truly state his, her or their title to the property proposed to be insured, and the nature and amount of any and' all encumbrances thereon, and misrepresentation made in respect to the same shall render the policies issued upon such applications void and of no effect, and the conditions annexed to each policy shall be fully complied with, otherwise the policy shall be void during such non-compliance.
    “Sec. 12. That if there shall be any other insurance upon the whole or any part of the property insured by any policy issued by said company during the whole or any part of the time specified in such policy, then every such policy shall be void, unless such double insurance shall exist by consent of said company indorsed upon the policy, under the hand of the Secretary; and if such other insurance shall exist by consent of said company, as aforesaid,’and a loss shall happen, then said company shall be holder to pay only its just proportion of such loss, according to the whole amount insured upon- the property damaged or destroyed.
    “Sec. 13. That if any alteration shall take place which shall increase the risk or hazard of any property insured by said company, by the act of the insured, the insured shall give immediate notice thereof to. the company, and if required shall pay an extra premium for the additional risk; otherwise the insurance shall be wholly void as to such property, and the insured shall be entitled to the return of a just proportion *of the premium paid on the same according to the unexpired time of the policy.
    “Sec. 14. That in all cases of loss or damage, said company shall be liable only to the extent and value of the interest of the insured in the property damaged or destroyed at the time of the loss.
    “Sec. 15. That all policies of insurance and renewals of policies shall be signed by the President and countersigned by the Secretary, and may be made either with or without the common seal of the company, and each policy or renewal shall be good to the insured, his, her, or their heirs, devises, executors or administrators, as the case may be, and to the assignee or assignees for collateral security only during the term for which it was insured.
    “Sec. 16. That any person insured by said company, who shall sustain loss or damage by fire, shall forthwith forward a notice thereof to the company, and shall also forward a statement as soon thereafter as may be, declaring what interest the insured had in the property burned, or whether any, and what other insurance upon the same existed at the time of the fire; whether the loss was sustained by misfortune and without fraud on the part of the insured, and whether the conditions annexed to his, her or their policy has been complied with ; and the declaration so made shall be subscribed by the insured and sworn to before and certified by a magistrate most contiguous to the place of the fire, not interested in the loss and not related to the insured, and the same shall be accompanied by a certificate from the said magistrate, that he verily believes the statement so made is true; and fraud or false swearing in the premises shall subject the injured to the forfeiture of all claims for loss or damage under the policy.”
    It was then shown that in 1867 Carrugi’s property was returned for taxes, the upper, story at $1,500 00, merchandise $500 00 and other property $500 00; but whether Carrugi made the return, did not appear. It was also shown that in 1868 the stock was taxed at $1,000 00.
    The evidence closed. The Court charged the jury among *other things, that if Carrugi notified Murdock, defendant’s agent, before this insurance was effected, that he had previously insured with Hill’s company, it made no difference whether this was reduced to writing and entered upon this policy or not—it was a waiver by the company and the company was bound nevertheless; and that if Murdock had such notice before giving this policy, and if Hill’s policy expired after this was issued and Hill renewed his, defendant was liable notwithstanding defendant had no notice of such renewal. The jury found for the plaintiff for the full amount, without interest. The company assign as error the overruling of said plea to the °jurisdiction; striking of said plea to the merits; allowing the interrogatories of Mrs. and Miss Carrugi; allowing Miss Carrugi to testify after her interrogatories had been read; overruling the objection to said list of articles as evidence; rejecting the charter of said company and the charge as given.
    Blanford & Thornton, for plaintiff in error,
    cited as to jurisdiction : 5th Ga. R., 497; Cobb’s N. D., 475; Act of 1845; Irwin’s Code, secs. 3333-4, 3331; Charter Universal E. Ins. Co. of N. Y., Oct, 10th, Oct. 1868, p. 126; 16th Pick. R„ 286; 14th Conn. R., 304; 18th Howard, 404. Miss Carrugi was in Court and therefore her interrogatories were not admissible. Mrs. Carrugi’s were inadmissible because interpreter not sworn. The evidence of insolvency was admissible under said charter of defendant. The charter was the law of the contract. The list contained articles not insured. The charge was erroneous: 21st Ga. R., 297; 16th Peters, 508, 510; 22 Conn. R., 502.
    H. Iy. Benning, for defendant,
    Mrs Carrugi was properly examined: Code, sec. 3809. As to what is cash value: 1 Robt. N. Y. R., 501; N. Y., 405; Dig. F. In. Decis. 2 Ed., 207, sec. 29 ; Code, sec. 2773. Interest recoverable: 5 Penn. St. R., 183; said Digest, 268, sec. 5. As to waiver: Code, sec. 10; Brown’s Maxims, 309; 1 Par. on Ins., 145; Goss v. Nugent, B. & Ald., 58: 19th How. R., 318; Ch. *on Conn., 105; Code, secs. 2770, 3753 ; 3d John., 5-8; R. 16th Md. R„ 260; said Digest, 413, sec. 83; 416, sec. 89; 436, sec. 27; 443, secs. 4/ 5, 6, 8, 9. 10, 17, 19. 20, 21. 22, 24. 64, p. 637. secs. 3 to 32,' Inch; Code, secs. 1679, 2170, 2174, 2175; said Digest, 934, secs. 7, 11, 12, 15, 20. 23, 44. 46, 48, 52-65, inclu., 177. secs. 2 and 3, 641, secs. 20, 23, 25, 31, 637, secs. 4, 8, 9, 10, 24; 1 Par. on Ins., 36, 37, and cases cited. Non-performance by fault of defendant: Code, secs. 2822, 700, 3753; Ch. on Con., 623. If consent ought to be in writing, equity will consider it done: Code, sec. 303i; or will compel it: Said Digest, 412, secs. 83, 89, 105, 254, sec. 12. The other insurances were void: Said Digest, 393, secs. 26, 40, 45, 51, 82, 84, 90, 96, 103, 109.
    
      
      /[See this case examined and distinguished in Morris v. Orient Ins. Co., 106 Ga. 477, 33 S. E. Rep. 430; Lippman v. Aetna Ins. Co., 108 Ga. 394, 33 S. E. Rep. 897.]
      *FOREIGN CORPORATIONS — JURISDICTION — SERVICE OF PROCESS.—Our Code declares that “a citizen of another state passing through this state may be sued in any county thereof in which he may happen to be at the time when sued.” (§ .3416) A corporation is for some purposes a citizen, and if present is no less subject to the jurisdiction than any other citizen of another state. Besides, a corporation, though a citizen of but one state, may be a resident also of other states. This court, in City Fire Insurance Co. v. Carrugi, 41 Ga. 660, held that “a foreign corporation doing business in this state is subject to the jurisdiction of the courts of this state, if it can be served with process;” and our laws provide for the service of process upon foreign as well as domestic corporations. (Code, § 3369 et seq.) The test of jurisdiction in personam is whether the corporation is so far present as that service can be effected, and it is to this extent present where its officers or agents are present and have an office and are engaged in the conduct of its business. When thus engaged in the exercise of its franchises in a state other than that of its creation, it cannot be said that the corporate entity is confined to its principal office in the latter. In fact, for the purpose of being sued, it may be treated as a resident of each state in which it does business under state laws. Williams v. East Tenn., etc., Ry Co., 90 Ga. 521, 16 S. E. Rep. 303.
      The naked question then is, can a corporation, do business in Georgia, contract debts here, suspend its business, for at the time the suit was brought it had ceased to do business, and thereby escape suit here by the regular process of our courts. The principles laid down by this court in the case of The City Fire Insurance Company of Hartford v. Carrugi, 41 Ga. 660, seems to settle this question. -It is there distinctly ruled that a foreign corporation doing business in this state is subject to the jurisdiction of our courts. It is difficult to see how it could be otherwise. If by comity such a corporation is permitted to do business here, it ought to pay its debts here; and if it fail to pay, it ought to be made- to do so; and our own courts should not turn over our people, with whom it has been permitted to deal within our jurisdiction, to a 'foreign jurisdiction and foreign courts, to constrain the corporation to pay the debts contracted here. That case further decides that such foreign corporation, if it have an officer or agent here, may be served by serving its officer or agent. In thisl case the principal officer has always been here, and was here, and was served. National Bank of Augusta v. Southern, etc., Company, 55 Ga. 39-40.
      Code, §§ 3408, 3409, appear to apply to domestic corporations; but this court has held them applicable also to foreign corporations having agencies in Georgia and doing business here, and has construed them to give our courts jurisdiction in certain cases of suits to be instituted in personam against such companies. City Fire Insurance Company of Hartford v. Carrugi, 41 Ga. Rep. 660; National Bank of Augusta v. The Southern Porcelain Manufacturing Company, 5 Ga. 39, 40, decided at this term. But these cases arose out of contracts made here by agents in Georgia. Bawknight v. The Liverpool & London, etc., Co., 55 Ga. 196.
      A foreign corporation doing business in this state may for purposes of suit b'e treated as a resident of this state and of any county therein in which it has an agent upon whom service can be perfected. City Fire Ins. Co. v. Carrugi, 41 Ga. 660; Williams v. Ry. Co., 90 Ga. 520, 16 S. E. Rep. 303. But a foreign corporation with agents in this state upon whom service can be perfected cannot be subjected to suit in a county in which there is no such agent. Saffold v. Scottish American Co., 98 Ga. 787-8, 27 S. E. Rep. 208.
      Again, in Selma, etc., R. Co. v. Tyson, 48 Ga. 351, it'is ruled that a foreign corporation doing business in Georgia, may be garnished for a debt it may owe anywhere in this state where suit for such debt may be brought; and that was a railroad case—-the case of Selma, Rome & Dalton Railroad Company v. Tyson; Western R. R. v. Thornton, 60 Ga. 310. Cited also, in City Fire Ins. Co. v. Carrugi, 41 Ga. 671.
      “A Georgia corporation is not subject to garnishment in any county where suit could not be brought for the debt it is charged to owe. So it is with the foreign corporation. It is not liable to garnishment except where suit could be brought on the debt it is charged to owe. See Clark v. Chapman, 45 Ga. 486.” Western R. R. v. Thornton, 60 Ga. 310.
      Any property of a foreign corporation, found in Georgia may be levied upon by attachment, and if it owes any debtor any money or has in its ands any effects of any debtor, it may garnished by serving the agent in Georgia. If it were a domestic corporation, the service should be upon the president—Clark v. Chapman, 45 Ga. 486, but it cannot be upon the president in the case of a foreign corporation, because there is no president in Georgia, and therfore service is good upon the agent. It has been so distinctly ruled in the case of The City Fire Insurance Company of Hartford v. Carrugi, 41 Ga. 670; Western R. R. v. Thornton, 60 Ga. 309.
    
    
      
      EVIDENCE—UNDER PLEA OF GENERAL ISSUE—Even if it were error to strike the plea in this case, it Was not an error that injured the defendant, he having been allowed to introduce, under another plea, all the evidence which coudl have been introduced under that which was stricken; and the verdict should not have been disturbed on that ground. City Fire Ins. Co. v. Carrugi, 41 Ga. 660; Hiller v. Howell, 74 Ga. 174.
      In City Fire Insurance Co. v. Carrugi, 41 Ga. 672, it is said: “Under our system of sending the whole case to the jury on the declaration and pleas, without a replication, we think it best that the pleas should go somewhat into detail.” Inasmuch as the plea contained no allegation of special damage, but only an allegation of general damages, and there being no special demurrer thereto, it should have béen treated and considered by the court as a plea of general damages; and we are inclined to think the court erred in striking it. But while the court may have erred in this, we .do not think the error was a material one. The record shows that the defendant put in all the evidence he was entitled to introduce under this kind of plea. Where a plea is erroneously stricken by the court and yet the defendant is allowed to introduce evidence to sustain the allegations therein, the striking of the plea is not reversible error. City Fire Insurance Co. v. Carrugi, 41 Ga. 672. The jury must have have considered it, because the verdict showed that they reduced the amount claimed by the plaintiff. The defendant was allowed to show all the damages it had well pleaded in the plea which had been stricken. Atlanta Glass Co. v. Noizet. 88 Ga. 45, 46, 13 S. E. Rep. 833.
    
    
      
      WITNESSES.—A female witness, though a party to a suit, and residing in the county, is not obliged, as a general rule, to attend court in order to testify. Code, § 3878, in enumerting those whose testimony may be taken by interrogatories “at the instance of either party,” specifies as one class “all female witnesses.” Being a party does not hinder the examination of a witness by interrogatories at his own instance, on other grounds recognized by statute. Cutcher v. Jones, 41 Ga. 675. And we see not why being a party should take away the privilege of a female witness. Doubtless, for special reasons-shown to the court, personal attendance might be required, but the present instance stands on the general rule. Powell v. Augusta, etc., Ry. Co., 77 Ga. 198, 3 S. E. Rep. 757.
    
   McCAY, J.

1. We fully recognize the principle, laid down in Dearing, v. The Bank of Charleston, 5 Georgia, 497. A non-resident cannot be made a party defendant to a personal action, unless he be served with process. But nothing is better settled, than, that non-residence is no defense, if the defendant have been legally served with process. If he have been present in the State, though only as a mere passer through, and be served with process, the Court undoubtedly has jurisdiction. A foreign corporation stands upon the same footing. Though it derives its existence from the law of the State creating it, yet it may contract anywhere: Bank of Augusta v. Earle: 13 Pet., 521. It is recognized as a party capable of suing in any Court, even beyond the jurisdiction of the State creating it: Angel & Ames, secs. 273, 372. Nor is there any reason why it should not be liable to suit, in a foreign jurisdiction, to the same extent and under the same circumstances as an individual. Although there has been some dispute upon this doctrine, yet it is now pretty generally settled: Angel & Ames on Corporations, secs. 402-407.

The only difficulty in the way is a practical one. By the common law process. against a corporation must be served upon its President or principal officer: Angel & Ames; sec. *404; and it is doubted if he can carry his functions as principal officer with him, by a mere accidental visit to •another jurisdiction. If a company were to locate an office in another State, and its principal officer were to do.business there, there could be no question upon his liability to be served. Nor is it any inherent, fundamental qualitv in a corporation, that process against it shall be served upon its principal officer. It is mere matter of municipal law, that the State may change at pleasure. We grant to these foreign corporations the right to do business here. We permit them to open offices here. We protect them in the property they hold here. We open our Courts to them for the enforcement of the claims they have upon our citizens. Is it hard, or a violation of principle, that they should be put upon the same footing, as to actions against them, as our own corporations? Section 3293 of our Revised Code, is as follows : Service of all bills, subpoenas, writs, attachments, and other original process, necessary to the commencement of a suit against any corporation in any Court of law or equity, except as hereafter provided, may be perfected by serving any officer or agent of the corporation, or by leaving the same at the place of transacting the usual business of the corporation, if any such place of business shall be within the jurisdiction of the Court in which suit may be commenced.”

Ordinarily, the Court of the county where the original office is located is the residence of the corporation in' this State. But a suit brought there, may be served by serving any officer or agent there, or by leaving a copy, as provided.

Why should a foreign corporation not stand upon the same footing, and be served in the same way ? It locates an office here. It appoints an agent here. It makes contracts here, through that agent. In our judgment, it may be made a defendant to a suit here, and may be served, by serving its agent, just as a Georgia corporation may.

2. We see no material error in the Court, in striking the plea. The matter set up was only a denial of material charges in the declaration, and the Court permitted the evidence relating to the point covered by the stricken plea to go *to the jury under the general issue. We are inclined to think the plea ought not to have been stricken.

Under our system of sending the whole case to the jury, on the declaration and pleas, without a.replication, we think it best that the pleas should go somewhat into detail. This, however, is mere matter of practice, which is in the discretion of the Court, so that he denies no right to the defendant.

3. The points made upon these two sets of interrogatories are not very clearly set forth in the bill of exceptions. The witness answers that she does not fully understand English, but it does not appear that the Commissioners do not understand her language. It is the business of one excepting to evidence to state his objections, and to show, affirmatively, that the case he makes is true. It is very possible, nay, probable, if the fact be that this witness could not understand or speak English, that the Commissioners nevertheless fully understood her and she them. They have so certified to the Court; for they have stated she answered so and so, to such and such questions. . It will not be presumed that they made this certificate when in fact they knew nothing about it.-

4. By section 3821, paragraph 4, of the Code, female witnesses may be examined by interrogatories. If they be present in Court, and it is demanded by either party, that the witnesses shall be examined orally, we think that ought to be done. But a party cannot complain if he has not made the demand. The record does not show1 that this was done- Indeed, it does not appear that the witness was present when the interrogatories were read. The bill of exceptions must show affirmatively a state of facts constituting error, as this Court will not presume the Court below has erred.

5. We see nothing in the objection to the admission of the list. Suppose there were articles upon it not covered by the policy. It only purported to be a list of what was lost at the fire, not a list of what the defendants were to pay for. The jury could not be misled. The list and the policy were both ¡bfefore them.

*6. Ordinarily, the solvency or insolvency of the insured has nothing to do with the risk. The title to the property is- the same, and his legal interest the same, whether he be solvent or insolvent. The legal presumption, if there are liens upon the property, or if the owner is in debt, is that he will take care of it, as a means of discharging his debt. His loss is the same whether he be solvent or insolvent. The property does not belong to the creditor, nor does he loose anything by its destruction.

7. If this were a Georgia charter, perhaps the insured would be bound to notice this clause of it. since by our law all Acts of the Legislature are -public laws: Revised Code, section. 3762. Though much might be said in favor of the idea that the intent of this section is only to prescribe that the Courts will notice private acts judicially, without proof of their existence', as was required at common law. But this, is a charter of another State, and is only recognized here on proof of its existence and contents. It is true, as a general rule, that a corporation can only make such contracts as its charter authorizes. Buf a corporation is constantly held liable for acts and contracts not permitted by its 'charter. Its agents mav commit torts and the corporation be responsible for them. They may do illegal acts and the corporation be held to account. The general rule would seem to be that of a corporation, in the exercise of a .franchise not granted to it by the Legislature, makes a contract or does an act, they may plead their want of authority, on the ground that the Courts will not interfere to grant redress between two persons engaged in an illegal enterprise. But if the contract be within the scope of the franchise, but fail to conform to the regulations prescribed by the charter for the guidance of its officers and the protection of the rights of the members as to each other, the corporation may be held liable, under the general rule of law as to agents, estoppel, waiver, etc. See the case of Hablehurst v. The Griffin & North Alabama Railroad, at this term. This condition of the charter is different from the ordinary practice of Insuranee Companies. *This requirement is unusual. It is an exception to the ordinary commercial usage.

When this company proposed to do business here, as an insurance company, it is presumed to have known the law, and especially the ordinary law which regulates the duties of the insured, according to the usage of the commercial world. If they undertake to act exceptionally, to insure on some unusual rule, they must make it known.

Dealers with their agents have a right to presume that they conform to the usual rules: Code, sections 2168, 2173. There is no pretence that -the insured had notice of this peculiarity of the charter. It was not referred to-, or made one of the conditions of the policy.

8. We adhere to the rule we laid down in the case of Carrugi v. Atlantic Fire Insurance Company, 40th Georgia Reports, 135. If, in fact, this agent was notified, and that was a question of fact for the jury, the failure to have it endorsed on the policy is not a conclusive bar to the plaintiff’s right. It is very well to have these endorsements made. It is very well to have all things to be proven put in writing, and this is true, as a general rule, in all human transactions. Parol evidence is uncertain, but the law does permit certain things to be proven by parol, and laws of evidence are not in the control of individuals.

It would be a fraud to take a man’s money, with a full knowledge of the facts, and then set up that a particular mode of proving the fact, agreed upon by the parties, but not required by law, had not been resorted to. The receipt of the money and the issuing of the policy, is a waiver of the endorsement, even if it be admitted that parties may, by their contract, agree as to how any particular fact shall be proven.

Judgment affirmed. 
      
      INSURANCE—AGENTS.—'Generally, what takes place in parol may be proved by parol. Here was a parol communication, made by the insured to the agent of the insurer. The law did not require it to be made in writing, nor did the contract between the parties so require. When th'e question arises in court whether it was made or not, why may not the parol act of making it be proved by parol evidence? We think it may be done, and so rule—Carrugi v. Atlantic Fire Ins. Co., 40 Ga. 135; City Fire Ins. Co. v. Carrugi, 41 Ga. 660. The agent was not merely empowered to receive applications, but to make contracts. The ;company he represented was not a corporation of this state. It was present here by him, and his acts and omissions were its acts and omissions. 'Representations made to him in the regular transaction of business, were made to it. Mobile Fire Dept. Ins. Co. v. Coleman, 58 Ga. 255.
      PRIOR INSURANCE—NECESSITY FOR WRITING.—Although a policy of fire insurance stipulated that “the existence or subsequent procurement of other insurance on the property hereby insured” would, “unless specially agreed to in writing in or upon this policy,” avoid the contract embraced therein, yet if the agent of the company at the time of issuing the policy in fact knew of the existence of prior insurance upon the property, the policy was not void because the company’s consent to the prior insurance was not expressed in writing in or upon the policy as required by the stipulation above mentioned. Carrugi v. Atlantic Fire Ins. Co., 40 Ga. 135; City Fire Ins. Co. v. Carrugi, 41 Ga. 660; Greenwich Ins. Co. v. Sabotnick, 91 Ga. 719, 17 S. E. Rep. 1026. See also, Clay v. Phœnix Ins. Co., 97 Ga. 44, 25 S. E. Rep. 417; Phœnix Ins. Co. v. Searles, 100 Ga. 97, 27 S. E. Rep. 779; Swain v. Macon Fire Ins. Co., 102 Ga. 96, 29 S. E. Rep. 147.
      Consent to additional insurance need not be expressed in writing or indorsed upon the face of the policy, notwithstanding such a stipulation as that contained in this policy. Notice of an intention to get the additional insurance and consent thereto by the agent of the company is, in the absence of fraud, sufficient to justify the insured in procuring such insurance. Carrugi v. Atlantic Fire Ins. Co., 40 Ga. 135; City Fire Ins. Co. v. Carrugi, 41 Ga. 674. The insured, however, must see to it that the person to whom the notice is given or whose consent he relies upon, is authorized to represent the company whose policy he holds. Greenwich Ins. Co. v. Sabotnick. 91 Ga. 719, 17 S. E. Rep. 1026.
      The general principle that legal rules of evidence are not controllable by mere stipulation or contract, is a settled question with us. Carrugi v. Ins. Co., 40 Ga. 141; Ins. Co. v. Carrugi, 41 Ga. 674; Ins. Co. v. Coleman, 58 Ga. 255; Travelers Ins. Co. v. Sheppard, 85 Ga. 803-804, 12 S. E. Rep. 18.
     