Page:Federal Reporter, 1st Series, Volume 10.djvu/363

 GAUCHE V. LONDON & LANOASHIRE INS. 00. 351 �tenns of the stipulation must be exactly complied with. It can never be held that deniai, even if it were excessive, amounts to affirmation. There is no evidence on this subject except that of constant, uniform, unwavering demand on the part of the defendants of an unrelaxed performance of this part of the contract. The law on this point is laid down with explicitness in Kimball v. Hamilton Fire Ins. Co, 8 Bosw. 503. The court there say : �"Silence when they (preliminary proofs) are furnished, especially if accom- panied with the plain assertion of a distinct ground of defence, or a general deniai of their liability, will ordinarily amouiit to a waiver. And we see that the reason of this is the tendency to mislead the claimants. But I have not found a case — I doubt if any is to be found — holding that the assurer who apprises the assured that his papers are no proofs, and refers him to the policy, is bound to go f urther and specify the particular def ects. No case has decided that if he apprises the insured that he will rely on the defect of proofs he waives this objection by taking others which he insists will defeat the re- covery." �In Lyeoming County Ins. Co v. Updegraff, 40 Pa. 324, the court say : �" They (the insured) were given to understand that a particular statement was necessary. How it can be claimed they weie released f rom the obligation to furnish it, we cannot discover." �The question then is, did the plaintiffs furnish the proofs called for by the terms of the policy ? �The fourth set of documents could not be a basis for this suit. They were furnished not earlier than February 28th. This suit was instituted on April 25th. Sixty days must elapse, and there had elapsed only 56. It is urged that though the petition was iiled on April 25th, citation was not served till the thirtieth of that month. So far as interruption of prescription is concerned the time dates from service of petition, because it is in that case treated by the stat- ute as a question of time of notice to the defendant. But when, as here, the court is called upon to enforce an agreement of the parties that suit shall not be brought, the commencement of the suit is the issuance of the writ, (here the citation,) and the pleas and judgment have relation to that time alone. See Bouv. Law Dict. verbis, Com- mencement of Suit," and the authorities there cited. �The fourth set of papers, therefore, need not be considered. The question here is, then : Were either of the first three papers or sets of papers, or all together, sufficient preliminary proof of loss within the meaning of the terms of the stipulations of this policy? The ��� �