CHARGE.

If you find from the evidence that the defendant companyafter being notified of the plaintiffs' loss, and of their claim for damages under this policy-treated the policy as a subsisting and binding contract of insurance-and objected to the payment of the loss merely because of alleged defects in the proofs of loss, or other similar grounds-and then and afterwards, before the bringing of this action, failed to repudiate the contract as invalid for non-payment of the premium-you may infer that the company or its duly authorized agent had in fact received the premium, unless there be satisfactory proof to the contrary.

If the premium was paid to one who by the terms of the policy was not authorized to receive it, and the company, or its duly authorized agent, afterwards received the money so paid, it would be a sufficient payment, without regard to the method or channel through which the money reached the company or its authorized agent.

If the company, or its duly authorized agent, never in fact received the money so paid, and the company subsequently, without qualification, treated the policy as a contract binding upon it, this would be equivalent to an adoption or ratification of such payment, and would be sufficient.

The defendant submits to us four prayers for instructions, the first of which is that you be directed to find a verdict for the defendant. We decline so to charge you.

Without indicating what in the opinion of the Court is or is not proved, we are clearly of the opinion that there is sufficient evidence to require us to submit the case for your consideration and determination.

We decline to charge in the language of the other three prayers, as the terms of these prayers require considerable modification and qualification. Having already stated our views upon the subject, we deem further comment upon said prayers un

necessary.

The plaintiffs present to us five prayers.

To what we have already said as to the subjects of these

ST. JOSEPH'S SOC. vs. ST. HEDWIG'S CHURCH. 229

SYLLABUS.

prayers, we deem it necessary only to add that when a company makes a policy, complete in form, and sends it out for delivery to the insured, and after such delivery-and after a loss by fire-the company treats the policy as a valid and binding contract-these are facts from which may be inferred in the absence of satisfactory proof to the contrary, the payment of the premium to the company or its duly authorized agent-or a waiver of such payment. Verdict for plaintiff for $1345.11.

SAINT JOSEPH'S POLISH CATHOLIC BENEFICIAL SOCIETY of the City of Wilmington, a corporation of the State of Delaware, vs. SAINT HEDWIG'S CHURCH, Wilmington, Delaware.

Assumpsit-Promissory Note-Corporation-Seal-Affidavit of Demand by the Treasurer-Practice.

I. In an affidavit of demand made by the alleged treasurer of the corporation plaintiff, it must be alleged in the body of the affidavit that the affiant is such

treasurer.

2. When the cause of action is a promissory note alleged to have been made by a corporation, and it appears from the copy of the note filed with the affidavit of demand, that no corporate seal was affixed to the note, judgment will, on motion, be refused.

(May 29, 1901.)

JUDGES SPRUANCE and GRUBB, sitting.

Samuel S. Adams, Jr., for plaintiff.

FACTS.

Edwin R. Cochran, Jr., for defendant.

Superior Court, New Castle County, May Term, 1901.

ACTION OF ASSUMPSIT (No. 141, May Term, 1901).

The plaintiff filed an affidavit of demand, the body of which was as follows:

"Before me George H. Hollis a Notary Public for the State of Delaware personally comes John Maliszefski Treasurer of the said Society the plaintiff above named, who being by me duly sworn according to law, deposes and says, that annexed hereto is an exact copy of a promissory note sued upon in this action; that the sum demanded by the said defendant which is due and unpaid is Thirteen Hundred and Thirty dollars ($1330).

"JOHN MALISZEFSKI, "Treasurer of Saint Joseph's Beneficial Society, the plaintiff above

named."

"And said deponent further says, that he verily believes that the same is justly and truly due from the said defendant to the said plaintiff.

"Sworn and subscribed before me this sixteenth day of May A. D. 1901. In witness whereof I hereunto set my hand and seal the day and year last aforesaid.

"GEORGE H. HOLLIS.

"Notary Public."

(Notary's Seal).

ST. JOSEPH'S SOC. vs. ST. HEDWIG'S CHURCH. 231

ARGUMENTS.

The note attached to the affidavit of demand was in the following form:

"St. Paul's Church,

"Fourth and Jackson Streets,

"Wilmington, Delaware, Feb. 12, 1900.

"One year after date the corporation of St. Hedwig's Church promises to pay to St. Joseph's Beneficial Society seventeen hun

dred dollars ($1700.).

Said copy showed the following endorsements on the back thereof:

"17th of May, 1900, taken from the note two hundred doll. ($200.).

"REV. JOHN S. GULCZ. "THEODORE SIKORSKI, Pres. "JAN GRABKOWSKI, Sekatair "JAN MALISZEWSKI, Treasurer.

"4th Oct., 1900, taken from the note Feb. 12th 1900, $170.

"THEODORE SIKORSKI.

"JAN GRABKOWSKI."

Cochran, for defendant, moved that judgment be refused, notwithstanding the affidavit of demand, because of the insufficiency of the affidavit, upon three grounds, viz.:

First. That the signature of the affiant appeared above, instead of below a very material clause in the affidavit, to the

OPINION.

effect that he verily believes that the same is justly and truly due from the said defendant to the said plaintiff.

Second. That there was no corporate seal appearing on the copy of the note annexed to the affidavit.

Third. That the alleged treasurer of the corporation was averred nowhere in the body of the affidavit as such treasurer.

SPRUANCE, J.:-On the last two grounds we hold that the affidavit is insufficient.

Judge Grubb's view is that it is enough that the affiant has not sworn that he is the treasurer of the corporation. I would put it as well on the ground of the defect in the note itself. The note does not show upon its face any obligation of the corporation defendant to the plaintiff.

We refuse judgment, notwithstanding the affidavit of demand.