The opinion of the court was delivered by
Sharswood, J.We affirm the judgment upon the opinion given by the learned president of the District Court. The condition contained in the policy against assignment was for the benefit of the insurers and could be waived by them, and even if the question arose upon the record we think there was ample evidence that they did waive it. No exception was taken to the reservation in the court below, and such being the ease, we are bound to assume that it was assented to or acquiesced in by all parties as a true statement of the facts. Very great injustice might be done if a party not objecting at the time of the reservation should be permitted afterwards to take the ground that there was no evidence of the facts or that they ought to have been submitted to the jury. If a point of law be reserved it must be done by stating on the record the facts on which it arises: Winchester v. Bennett, 4 P. F. Smith 510; Wilde v. Trainor, 9 Ibid. 439; Ferguson v. Wright, 11 Ibid. 258; Campbell v. O’Neill, 14 Ibid. 290. Unless the facts are found by the jury specially, there is no mode of reserving a question but by an agreement, and if the judge states the facts without such an agreement, the party must make his objection and enter his exception at the time according to every rule for the fair trial of causes.
Judgment affirmed.