The opinion was delivered at March term 1857.
Shaw, C. J.Though the defendants bear the title of “ Mu tual Insurance Company,” the present insurance made by them to the plaintiff was in the nature of a stock policy. The execution of the policy being admitted, the loss within the time, and the proof of loss, the defence relied on was that of misrepresentation as to the use to which the insured buildings were put, and the nature and position of other neighboring buildings. Also, that the action should have been brought in the county of Worcester, and could not be brought in this county.
The insurance is for $2,000 ; to wit, $1,500 on the plaintiff’s hotel building, $500 on stable and shed adjoining, situated No. 248 Purchase Street in New Bedford, Mass. This corresponds to the description in the application. The defendants insisted *191that this was not true, but that it was kept as a house of ill fame, and offered evidence tending to show that such was the fact. And they contended that, if this were so, the policy would be invalid, whether the plaintiff knew that the house was so kept or not; because, they insisted, the application was a part of the policy, and constituted a warranty that the house was kept as a hotel. The clause relied on is in the fourth condition of insurance, that a false description by the assured, of a building insured, shall render a policy absolutely void, issuing upon such description.
The evidence is not stated; but the court instructed the jury, that if they found the house was occupied as a house of ill fame, and that this fact was known to the plaintiff, or his agent who made the representation, the plaintiff could not recover; but that if the building was leased as a hotel, and apparently used as such, but was in fact used by the tenant as a house of ill fame without the knowledge or consent of the plaintiff, such use would not prevent a recovery.
This, it seems to us, was sufficiently favorable to the defendants. The inquiry, it must be considered, was as to the then description of the building, not what it was intended to be used for, nor whether it was let on a lease at will or for a term of years. It was truly described as a hotel, occupied by Mr. Holmes as a hotel, and certainly there was no suppression of a material fact, if not known to the assured, which could be deemed false. If it was a hotel, and used as a hotel at the time, there would be no false representation if it was used otherwise by the tenant, without the lessor’s knowledge or consent.
We think the other part of the instruction correct, as to the proximity of other buildings. If the insurers desired more exact information, other questions should have been put accordingly. *
The fact, that one question was unanswered, is immaterial; in fact, many questions were not answered. The company, by consenting to make the policy upon the application as it was, waived all claim to further answers.
*192On the other, and perhaps the principal point, on which the judgment in this case has been suspended, the question has been substantially decided in the case of Nute v. Hamilton Ins. Co., ante, 174. The court were of opinion that a stipulation in an original contract, that in case of breach the suit shall be brought in a particular county, or, in other words, that a suit shall not be brought in a county in which it is directed by law to be brought, is not a proper matter of contract. After a contract has been made and broken, the remedy is regulated by law, and of course must be governed by the law of the forum where the remedy is sought, and not by the law of the place where the contract is made. Even if such a stipulation is of any legal force, it is an executory contract only, and cannot be specifically carried into effect and enforced by the court having jurisdiction of the cause and the parties. It is a well settled maxim, that parties cannot, by their consent, give jurisdiction to courts, where the law has not given it; and it seems to follow from the same course of reasoning, that parties cannot take away jurisdiction, where the law has given it. The court are therefore of opinion that the stipulation in one of the conditions of this policy, that, in case of loss, no action shall be brought upon it except in the county of Worcester, is no legal bar to an action in this county, where by law the action might be brought if no such condition had been made.
Judgment on the verdict for the plaintiff.