quently found it impossible to apply this doctrine in cases of alien corporations, for that would send the domestic citizen to the country of the origin of the corporation to bring his action. 22 The court must have felt

that the inevitable logic of its rule of interpretation, where jurisdiction depends upon a diverse State citizenship, demanded the same conclusion where it depended upon diverse national citizenship; and so the federal circuit court held, and the supreme court floundered out of the difficulty in which its untenable rule of interpretation had placed it, in the best way it could.

23

V. Conclusion. It is submitted to the profession that the soundest considerations of public policy demand that corporations

shall be held to answer in the national, as well as in the State courts, within whatever State they establish permanent agencies, without reference to the question under the laws of what State they have been created, and that this is especially so in cases of corporations which have not any residence except a fictitious one in the State of their creations, nor any agent there upon whom process can be served. The Supreme Court of the United States having, by an interpretation of very doubtful propriety, left this question in the predicament above stated, there is strong reason why congress should, at the present session, and without delay, pass an act, declaring that, for the purposes of federal jurisdiction and venue, a corporation may be sued within whatever State or federal district it has established a permanent agency for the purpose of transacting its business. SEYMOUR D. THOMPSON.

become an inhabitant of a State or federal district outside of the State of its creation: Miller v. Eastern Oregon Gold Mining Co., 45 Fed. Rep. 345; Holmes v. Oregon, etc. Co., 6 Sawy. (U. S.) 262, 5 Fed. Rep. 523. It seems clear that where the corporation is created by the State within which the federal court sits, then, for the purpose of venue, that is to say, of determining within what federal district in the State an action against it may be brought, it is to be deemed an inhabitant of that district within which it has estabished a permanent business office or agency: Zambrino v. Galveston, etc. R. Co., 38 Fed. Rep. 449; and compare Southern Pac. Co. v. Denton, 146 U. S. 202; Riddle v. New York R. Co., 39 Fed. Rep. 290. See, also, Miller v. Eastern Oregon Gold Min. Co., 45 Fed. Rep. 345.

22 Re Hohorst, 150 U. S. 653; with which compare Hohorst v. Hamburg American Packing Co., 38 Fed. Rep. 273.

Hohorst v. Hamburg American Packet Co., 38 Fed. Rep. 273.

INTERSTATE COMMERCE.

CITY OF HUNTINGTON V. MAHAN.

Supreme Court of Indiana.

One charged with peddling without a license in violation of a city ordinance where it appeared that a firm doing business from New York, through the States, had a general agent and distributing agents in the State, of whom defendant was one. The distributing agents sent their orders to the general agent who forwarded them to New York, and received the goods from there. He repacked and sent them to the distributing agents who delivered them to their cus tomers. Held, that defendant was engaged in interstate commerce, and was not subject to the ordinance as a peddler.

HACKNEY, J.: The appellee was charged and found guilty, before the appellant's mayor, of violating an ordinance of the city prohibiting

peddling within said city without a license as prescribed by said ordinance. On appeal to the circuit court there was a special answer by the appellee, a demurrer to which was overruled, and a special reply by the appellant, a demurrer to which was sustained, and upon a trial by the court the appellee was acquitted. The questions arising upon the rulings as to the special answer and special reply more fairly and fully arise upon the motion for a new trial, which assigned as causes therefor that the finding was contrary to law and was contrary to the evidence. Without conflict the evidence established the following facts: During and prior to September and October, 1894, P. F. Collier & Co. were a firm of book publishers located in, and conducting their business throughout, various States from the City of New York. In said months said firm had an agent, P. J. Flanady, located in the city of Indianapolis, and had other agents traversing the various parts of this State, soliciting purchasers and taking orders for the books so published by said firm, and acting solely as the salaried agents of such firm. The Indianapolis agency, after receiving the order for such books as the canvassing agent might secure, would combine numbers of such orders and forward them to P. F. Collier & Co., at New York City, which firm, in response to such orders, would ship to the Indianapolis agency the books so ordered. When the books so ordered and shipped were received at Indianapolis they were repacked in parcels to suit the orders from the various localities in Indiana, and were shipped to such localities for distribution by salaried agents, acting for P. F. Collier & Co., in such localities. The appellee, while acting as such distributing agent at the city of Huntington, on the 5th day of October, 1894, and while distributing to various purchasers such books of the publications of said firm as had been ordered by citizens of said city through one Gamble, another agent of said firm, during the months of September, 1894, was arrested for the violation of said ordinance. The books being delivered by the appelle had been received by him through orders and shipments

as above described, and had not prior thereto come into storage or become a part of the stock in trade in any business conducted wholly within the State. The theory upon which the appellee was discharged by the lower court, and that upon which the judgment of that court is here supported, is that the appellee was engaged in interstate commerce, the regulation of which is reserved by the federal constitution to the congress of the United States, and which is not the subject of regulation or restriction by State or municipal authority. In the recent case of City of South Bend v. Martin, decided by this court, the question here presented was fully considered and many of the federal and State decisions were reviewed. The rule there recognized was that if the goods, prior to their sale, had come into this State, and had become here permanently fixed, and mingled with the mass of property within this State, and as such were subjected to sale by present exposure and delivery, their sale was not a transaction of interstate commerce; while, if they had not, at the time of their sale, come into this State. had not become mingled with the mass of property within this State, were not subject to inspection and delivery at the time of the sale, the soliciting of orders, and the subsequent shipment and delivery from another State, were transactions of interstate commerce. Upon this recognized rule there can be no doubt, under facts here presented, that this case falls within the limits where State and municipal authority has no control. In addition to the numerous cases cited in City of South Bend v. Martin, supra, see In re Spain, 47 Fed. Rep. 208; In re Nichols, 48 Fed. Rep. 164; In re Tyerman, 48 Fed. Rep. 167; McLoughlin v. City of South Bend, 126 Ind. 471; Martin v. Town of Rosedale, 130 Ind. 109.

The right of congress to regulate interstate commerce "is coextensive with the subject on which it acts, and cannot be stopped at the external bounddary of the State, but must enter its interior, and must be capable of authorizing the disposition of those articles which it introduces so that they become mingled with the common mass of property within the territory entered." Brenan v. Titusville. 153 U. S. 289; Leisey v. Hardin, 135 U. S. 100; Gibbons v. Ogdon, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419. The right to deliver goods sold, when not within the State, has the same immunity from State or municipal interference by way of taxation as the sale itself has. In re Spain, supra. We conclude, therefore, that the record discloses no error, and the judgment of the court is affirmed.

NOTE. In accordance with the consensus of authority, one who goes from house to house with articles of commerce, offering them for sale and delivering them as sold, is engaged in peddling; and that an ordinance prohibiting peddling without a license is not an interference with interstate commerce, when it is sought to apply it to a person who takes about with him goods sent to him to sell as agent by a manufacturer in another State and delivers them at the time the sales are made; and that it is immaterial that the

sales are made on the installment plan, and that the title remains in the manufacturer until the full price is paid. City of South Bend v. Martin (Ind. S. C.), 41 N. E. Rep. 315. One who canvasses from house to house, leaving goods at a stipulated weekly payment, the title to pass to the party renting the goods when the whole amount of the rental is paid, is a peddler, within an ordinance requiring peddlers to have a license. So held by the Michigan Supreme Court in People v. Sawyer, 64 N. W. Rep. 333. The Supreme Court of Errors of Connecticut holds that one making regular periodical trips through the country, calling on retail dealers only, taking orders and filling them from the wagon if he can, otherwise booking them for subsequent delivery, is not a peddler, within the meaning of the law. Pub. Acts Conn. 1893, ch. 121, p. 271. See State v. Fetterer, 32 Atl. Rep. 394.

A peddler is a small dealer at retail, carrying his merchandise with him, traveling from house to house, or from town to town, either on foot or on horseback, or in a vehicle drawn by one or more animals, exposing his goods for sale and selling them. Randolph v. Yellowstone Kit, 83 Ala. 474. The same court further holds that "the distinctive feature does not consist in the mode of transportation, though one of the statutory modes is essential to constitute a peddler, but in the fact that a peddler goes from house to house, or place to place, carrying his articles of merchandise with him, and currently sells and delivers." Ballou v. State, 87 Ala. 144.

The dominant idea involved in such an occupation seems to be that the individual carries his stock in trade, consisting of small wares, on foot or in a vehicle about the country, offering them for sale and then and there selling them." Stamford v. Fisher, 140 N. Y. 187. The four elements required to constitute a ped. dler are: First, that he should have no fixed place of dealing, but should travel around from place to place; second, that he should carry with him the wares that he offers for sale, not merely samples thereof; third, that he should sell them at the time when he offers them, not simply enter into an executory contract for future sale; and fourth, that he should deliver them then and there, not merely contract to deliver them in the future. Should any one of these elements be found constantly absent from the regular dealings of the vendor, he will not be considered a peddler, whatever else he may be. Therefore, one who merely solicits orders for future delivery, or sells by sample, whether a dealer or simply the agent of a dealer, cannot be considered a peddler.

On the other hand, if a vendor travels from place to place, selling his goods and delivering them on the spot, he is a peddler; and where the sales take place wholly within the limits of the State, he cannot claim that he is engaged in interstate commerce. Commonwealth v. Gardner, 133 Pa. St. 284.

In a case where the evidence showed that the defendants, who were butchers and kept a meatshop, sent out a delivery wagon in charge of an employee with meat to be delivered as previously ordered by their customers, but at the same time sent out other meat with knives for cutting and scales for weighing it, and by custom drove from place to place soliciting business, not only from the wagon, but by going from house to house and inviting the inmates to come to the street, and selling to such as desired to buy from him, cutting up and weighing it out from the wagon, these acts constituted peddling by the employers. City of Duluth v. Krump, 46 Minn. 435.

A proprietary medicine dealer, having a permanent manufactory and residence in one county, upon which

EGAN V. OAKLAND HOME INS. CO.

Supreme Court of Oregon, December 23, 1895. Under a fire policy providing "the loss shall not be come due and payable until 60 days after proof of the loss, including an award by appraisers, when required. No suit or action on this policy for the recovery of any claim shall be sustained until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 6 months next after the fire shall have occurred," the 6 months commence to run from the time of the fire, and not from the time right to sue accrues.

*

BEAN, C. J.: The alleged liability of the defendant rests upon a fire insurance policy issued by it covering the property of plaintiff's assignor, and the only question presented by the appeal is the proper construction of the following provisions thereof: "The loss shall not become due and payable until 60 days after satisfactory proof of the loss herein required has been received by this company, including an award by appraisers when appraisal has been required. * * No suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within 6 months next after the fire shall have occurred." The fire occurred on August 17, 1893, and this action was not commenced until March 15, 1894, only 2 days short of 7 months thereafter. There is no claim made that the delay was caused by the action or nonaction of the defendant company, or that it occurred by reason of any dispute or proceedings by arbitration concerning the amount of the loss, or that a reasonable time did not remain after the loss became due and payable in which to bring the action; but the simple question here presented is whether the time as limited by the policy commenced to run at the date of the fire, or at the time the loss was ascertained and became due and payable. It is admitted that the clause of the policy limiting the time in which an action may be commenced thereon is valid and binding, but the contention for plaintiff is that, when construed in connection with the other provisions in the policy, and especially the one providing that the loss shall not become due and payable until 60 days after proof thereof has been furnished to the company, it shows an intention to give him 6 months after the right to sue accrued in which to bring the action.

At the outset it is important to observe that, under the wording of the clause in question, the

6 months begin to run from "the time the fire shall have occurred," and not from the time "the loss or damage shall have occurred," or "after the loss," or "after the loss or damage," as in most of the cases cited and relied upon by plaintiff. The latter phrases have been construed by some of the courts to mean that the limitation shall be computed from the time the amount of the loss is ascertained and payable, and the assured's right to bring an action accrues, and not from the time of the happening of the loss. Steen v. Insurance Co., 89 N. Y. 315; Hay v. Insurance Co., 77 N. Y. 235-242; Insurance Co. v. Jones, 54 Ark. 376, 15 S. W. Rep. 1034; Barber v. Insurance Co., 16 W. Va. 658; Murdock v. Insurance Co., 33 W. Va. 407, 10 S. E. Rep. 777; Chandler v. Insurance Co., 21 Minn. 85; Spare v. Insurance Co., 17 Fed. Rep. 568; Vette v. Insurance Co., 30 Fed. Rep. 668; Insurance Co. v. Fairbank, 32 Neb. 750, 49 N. W. Rep. 711; Ellis v. Insurance Co., 64 Iowa, 507, 20 N. W. Rep. 782; Miller v. Insurance Co., 70 Iowa, 707, 29 N. W. Rep. 411. But other courts of equal weight and respectability, have construed such phrases to mean that the assured's right of action must be computed from the date of the happening of the loss, and not from the time the insurer is required to pay. Travelers' Ins. Co. v. California Ins. Co., 1 N. D. 151, 45 N. W. Rep. 703; Fullam v. Insurance Co., 7 Gray, 61; Johnson v. Insurance Co., 91 Ill. 92; Chambers v. Insurance Co., 51 Conn. 17; Glass v. Walker, 66 Mo. 32; Bradley v. Insurance Co., 28 Mo. App. 7; Insurance Co. v. Wells, 83 Va. 736, 3 S. E. Rep. 349; Blanks v. Insurance Co., 36 La. Ann. 599; Lentz v. Insurance Co., 96 Mich. 445, 55 N. W. Rep. 993; Garido v. Insurance Co. (Cal.), 8 Pac. Rep. 512. Other cases, bearing more or less directly on the question, could be cited on either side of the proposition, but reference is made to a sufficient number to show that it can hardly be said that the weight of authority is with either contention. The courts which hold that the limitation commences to run at the time the loss is ascertained and payable, and not from the date of the happening of the loss, do not agree as to the reasons for so deciding, but they seem generally to base their decisions upon the ground that the limitation clause, when taken in connection with the stipulation in the policy giving the insurer a certain time after proof of loss in which to pay, is inconsistent, ambiguous, and uncertain, and therefore should be construed more strongly in favor of the insured. But in the case before us there is, in our opinion, no room for construction. The stipulation is plain and unambiguous, and susceptible of but one meaning, and unless we are to disregard entirely the plain and obvious meaning of the language used, and we must hold that the phrase "next after the fire shall have occurred," means from the date of the fire, and not 60 days, or some other time, thereafter. It is undoubtedly true that an insurance policy, like other contracts, should be so construed as to effectuate the inten

tion of the parties, and that if any of its terms or conditions are ambiguous, they should be construed most strongly against the insurer; but the courts have no right by construction to disregard the plain provision of a contract as made by the parties, or to hold that it means one thing when it says another. Some of the courts which construe the phrase "after the loss" to mean after the loss is ascertained, and the right to sue exists, proceed on the assumption that there is no material difference between such a phrase and after the fire," and have construed it in the same way. Steel v. Insurance Co., 2 C. C. A. 463, 51 Fed. Rep. 715; Friezen v. Insurance Co., 30 Fed. Rep. 352; Case v. Insurance Co., 83 Cal. 473, 23 Pac. Rep. 534; Hong Sling v. Insurance Co., 8 Utah, 135, 30 Pac. Rep. 307. And the following cases, although construing life insurance policies, may be said to hold to the same effect: McConnell v. Association, 79 Iowa, 757, 43 N. W. Rep. 188; Matt v. Association, 81 Iowa, 135, 46 N. W. Rep. 857; Allibone v. Casualty Co. (Tex. Civ. App.), 32 S. W. Rep. 569. But we cannot assent to the doctrine of these cases. It seems to us that if "after the loss" means 60 or any other number of days after the happening of the loss, there is a material difference in the two phrases. As so construed, the one fixes, as the period at which the limitation shall commence, the time the loss is ascertained and payable, and the other, in distinct and unequivocal language, the time of the fire, which is certainly a different event. In one of the leading cases holding the doctrine contended for by the plaintiff (Steen v. Insurance Co., 89 N. Y. 315), Danforth, J., says: "No doubt the appellant could have stipulated that the time of the fire should be looked to as the event from the happening of which the limitation should run, but it would require distinct language to show that such was the intention of the parties. It is not used here. It is found in Schroeder v. Insurance Co., 2 Phila. 287, one of the cases cited by the appellant." And in the subsequent case of King v. Insurance Co., 47 Hun, 1, the Supreme Court of New York held that, under a clause in an insurance policy providing that no action or suit shall be maintained unless "commenced within 12 months next after the fire shall have occurred," the limitation commenced to run from the date on which the fire occurred, and not from the expiration of the 60 days given the company in which to make payment after the proofs of loss, and distinguished the case before it from the Steen Case. And Mr. Richards, in his work on Insurance (page 193), in considering the effect of a clause in the standard New York policy requiring suit or action to be commenced "within 12 months next after the fire," says: "The limit of 1 year for bringing suit is valid, and must be observed, and under the wording of this clause the 12 months begin to run from the time of the fire, and not from the time of service of proofs of loss. which, under the former wording of the policy, was held to be the effect of it." This construc

tion is, in our opinion, in accordance with common sense, the plain meaning of the language used, and is abundantly supported by authority. Hart v. Insurance Co., 86 Wis. 77, 56 N. W. Rep. 332; Insurance Co. v. Meesman, 2 Wash. 459, 27 Pac. Rep. 77; Insurance Co. v. Little, 20 Ill. App. 431; Hocking v. Insurance Co., 130 Pa. St. 170, 18 Atl. Rep. 614; Schroeder v. Insurance Co., 2 Phila. 286; King v. Insurance Co., 47 Hun, 1; McElroy v. Insurance Co., 48 Kan. 200, 29 Pac. Rep. 488; Insurance Co. v. Stoffels, 48 Kan. 205, 29 Pac. Rep. 479; McFarland v. Association (Wyo.), 38 Pac. Rep. 347; Steel v. Insurance Co., 47 Fed. Rep. 863.

The case principally relied upon by plaintiff as supporting his position is Steel v. Insurance Co.. supra, decided by the circuit court of appeals of the ninth circuit, McKenna and Gilbert, circuit justices, and Hawley, district judge, sitting. The action was originally commenced in the Circuit Court of the United States for the district of Oregon on a policy of insurance limiting the time for bringing the action to 12 months "next after the date of the fire from which such loss shall occur," and on appeal the decree of Judge Deady was reversed,-McKenna, circuit justice, dissenting; the court holding that there was no material difference between 12 months next after the fire" and 12 months after the loss," and that the limitation did not commence to run until after the loss was ascertained and became payable. On appeal to the supreme court this decision was affirmed by an equally divided court, no opinions being delivered. 14 Sup. Ct. Rep. 1153, 154 U. S. 518. It can hardly be said, therefore, that the question is a settled one in the federal courts. But we are disposed to give to the circuit court of appeals all due respect, and would be inclined to yield to its judgment if in our opinion the question was less free from doubt. The argument in support of the view adopted by the majority is, briefly, that because, by the terms of the policy. the company could not be sued until certain conditions were complied with, which would necessarily consume a part of the time limited, and, furthermore, the loss not being payable until 60 days after the proofs thereof, it might happen, if the limitation clause should be construed according to its language, that the action would be barred before the right to sue actually accrued under other clauses in the policy, and therefore the parties cannot have meant what they expressly said. We cannot yield our assent to this line of reasoning. As said by the Supreme Court of Wisconsin, in the case of Hart v. Insurance Co., supra: "It does violence to plain words. It smacks too strongly of making a contract which the parties did not make. It construes where there is no room for construction. Plain, unambiguous words, which can have but one meaning, are not subject to construction. Twelve months next after the fire' has one certain meaning, and but one. It can have no other. It may well be that the insurer may, by his acts, waive the limitation, or estop

himself from insisting on it, as held in the cases of Killips v. Insurance Co., 28 Wis. 472; Blanks v. Insurance Co., supra, and Johnson v. Insurance Co., supra; but the invocation of this principle does no violence to the contract of the parties." If, acting in good faith and with reasonable diligence, the conditions precedent to a right of action cannot be completed by the insured so as to leave a reasonable time thereafter in which to sue, and this fact is made to appear by the pleadings and proof, the courts should declare the limitation inoperative or void, and not disregard the plain wording of the contract, or incorporate into it a provision which the parties themselves did not see fit to insert. In our opinion, therefore, the court below committed no error in holding that the limitation commenced to run from the time the fire occurred, and not when the loss became due and payable, and the judgment is affirmed.

NOTE. In no branch of the law has there been so much "judicial legislation," as in insurance cases. The hardship to the policy-holder, or a prejudice against the companies in general, they have been declared by one court (Kentucky Mutual Ins. Co. v. Jenks, 5 Ind. 96) not to be "favorites of the law," have led to much that cannot well be explained on any other theory. The writer had an illustrative experience in arguing a case before a supreme court, which required some "judicial legislation" to hold the company liable. Counsel against the company had contended that a particular phrase did not mean what it was plainly intended to mean. The court readily assented to the writer's proposition, that a contract, meaning what the company intended this to mean, would be valid. The argument had assumed a colloquial phase, and the request was made to each of the judges for a phrase that would better express what was intended. Each in turn attempted to write such a phrase, and each admitted that it could not be made more clear and definite. Nevertheless the lower court was affirmed. The "poor widow woman," as counsel tautologically called the plaintiff, was more persuasive than the court's own admission against the correctness of the judgment. The Supreme Court of Oregon, in Egan v. Oakland Home Ins. Co., has made a very satisfactory opinion in its reasoning and conclusion. The phrase under construction, and like phrases, have often been before the courts. There is much conflict in the authorities as to the time when the limitation begins to run; some holding that the limitation begins to run from the date of the fire, injury or death, and others that it does not begin to run until after the right of action has accrued, that is, until all preliminaries to the payment of the loss, as the making of proofs of loss, arbitration, etc., have been disposed of. Most of the cases bearing upon the question of extending the time limited for commencing suit, holding the limitation to run from a later date than that specified in the policy, are cases of fire insurance, which limit the time to a certain number of months after the loss or after the fire; and require proofs of loss to be furnished, or other condi tions precedent to the right of action to be performed, for which time is allowed, or which necessarily con sume time. The federal courts are inclined to the position that the limitation runs only from the time the cause of action accrues (cases cited in opinion, supra), although the policy reads a certain number of

months after the loss, or after the fire; but in the State courts this is reversed, and, while a respectable number hold that a limitation of a certain time for beginning action, after the loss or after the fire, shall not run from the date of the loss or of the fire, but from the time the cause of action accrues, a considerably larger number of cases are found where the decisions are directly to the contrary of this, and a number which are somewhat equivocal and claimed by both parties; and some make a distinction between the meaning of the phrases "after the loss" and "after the fire."

Commencement of Action.-In the absence of statutory provision a suit is generally considered commenced, within the limitation clause in the policy, when the complaint is filed in the clerk's office and the summons issued; and the fact that the summons is returned, and a new writ issued after the expiration of the limitation, has been held not material. Virginia, F. & M. Ins. Co. v. Vaughn, 88 Va. 832; Everett v. Niagara Ins. Co., 142 Pa. St. 322; Peoria, F. & M. Ins. Co. v. Hall, 12 Mich. 202. In the absence of evidence a writ is supposed to issue on the day of its date, in computing the time in which to sue. Merchants' Mutual Ins. Co. v. Lacroix, 35 Tex. 249. An amendment, where the cause of action remains the same, is not a new action, and, therefore, the limitation will not apply. Thomas v. Fame Ins. Co., 108 Ill. 91; U. S. Life Ins. Co. v. Ludwig, 13 Ins. L. J. 488; Bentley v. Standard Fire Ins. Co. (W. Va.), 23 S. W. Rep. 584. The limitation does not apply to new parties on a creditor's bill brought within the time. Pennell v. Lamar Ins. Co., 73 Ill. 303. Where the insurer is not accessible to service within a reasonable time before the expiration of the limitation, it has been held not to apply. Peoria, M. & F. Ins. Co. v. Paul, 12 Mich. 202. A presentation of a claim, and demand for payment, however, cannot be considered as a prosecution of a suit. Harris v. Phoenix Ins. Co., 35 Conn. 310. The fact that a prior suit has been brought, and for some reason has been dismissed, or been lost, does not delay the period of limitation, notwithstanding such a provision in the general statute of limitation. McIntyre v. Michigan State Ins. Co., 52 Mich. 188; Brown v. Roger Williams Ins. Co., 7 R. I. 301; Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386; McFarland v. Etna Ins. Co., 6 W. Va. 437. Nor is it material that a prior suit was brought in a foreign jurisdiction, or in a wrong jurisdiction. Keystone Mutual Benefit Ass'n v. Norris, 115 Pa. St. 446. Contra: Madison Ins. Co. v. Fellowes, 1 Dis. 217. An attachment execution served on the company within the time is no excuse for a delay in bringing the action. Schroeder v. Keystone Ins. Co., 2 Phila. 286. Also see Hocking v. Howard Ins. Co., 130 Pa. St. 170; McElroy v. Continental Ins. Co., 48 Kan. 200.

Within-Months after the Loss.-Where the policy provides that the loss shall be payable "sixty days after due notice and proof of the same," and limits the time for bringing action to "six months next after the loss shall occur," the West Virginia Supreme Court holds that in such case the six months' limitation runs from the time when the cause of action accrues, and not before, and that this was "the intent of the parties." Barber v. Ins. Co., 16 W. Va. 658. In the later case of Murdock v. Franklin Ins. Co., 33 W. Va. 407, the court, after quoting from Barber v. Ins. Co., concludes, "so that case is authority for the position (1) that the limitation does not begin until the cause of action accrues; and (2), that it does not begin from the actual loss-thus departing from the etter of the policy." The same rule seems to be