delivered the opinion of the court, May 2d 1881.
The defendant below has taken two writs of error in this case. The first was to the refusal of the court to set aside the service of the writ. The second was to the final judgment. It is plain the first writ was premature: Coleman’s Appeal, 25 P. F. Smith 441. This writ must be quashed. As the same point is raised by the first assignment of error upon the second writ, the defendant will have the full benefit of it for all it is worth.
We need not discuss the question whether the service of the summons upon W. Gr. Tracy, the local agent, bound the company defendant. The latter appeared de bene esse, and subsequently moved to set aside the service. This the court refused to do. At *360this point, the defendant was not in court unless the writ had been properly served. It had then but one of two courses to pursue; the one was to come in and defend the suit; the other was to stay out and take the risk of the service. It attempted to do both, and as might have been anticipated, did not succeed. The plaintiff took out a rule of reference. The defendant appeared before the arbitrators, agreed to a continuance, and also agreed to a substitution of another arbitrator in place of one first chosen; contested the cause before the arbitrators, and then appealed from their award. The defendant’s appearance before the arbitrators and its subsequent appeal were equal to service (Evans v. Duncan, 4 Watts 24), and its agreement to continue and to substitute an arbitrator, was a waiver of the protests previously filed. We see no error in the first assignment.
- 2. The second assignment is sustained. The defendant’s second point should have been affirmed. The facts were not disputed that John E. Means, the assured, received notice of the assessment more than thirty days prior to the fire which destroyed the property insured, and that the said Means did not pay his assessment, No. 35, as required by his policy and the notice served upon him to do so. The learned judge, while admitting the facts as above stated, declined the point for the reason that the case was being tried in the name of Storrs, assignee of Means, against the defendant. This was error. Storrs was a voluntary assignee for creditors. The company had nothing to do with him. He held no policy, nor had he any contract relation with the company.. Means still had the beneficial interest in the policy; if paid, the proceeds would go to him or to the payment of his debts, which is the same thing. Hence it is entirely immaterial whether the agent Bartlett made the agreement referred to in the sixth assignment or not. Granted that it was made and by competent authority, and that the company failed to give notice to the assignee of the assessment, what does it matter ? Can the assignee complain ? Certainly not; he was not insured and had no interest. Can Means complain ? His mouth is closed because he had notice and did not pay the assessment. Nor does it help him that he supposed his assessment had been paid to the company by Bartlett the agent. He had not paid Bartlett, and any agreement between them that Bartlett should credit the premium on a debt he owed Means on a land contract, would not avail as against the company. Bartlett had no right to take the company’s money to pay his private debt to Means, and this the latter knew or ought to have known. The 2d, 3d, 4th, 6th, 7th and 8th assignments are substantially covered by the foregoing remarks and are sustained.
5. This assignment is ruled by the Lycoming Mutual Ins. Co. v. Sailer, 17 P. F. Smith 108, where it was held that it was error to admit the policy in evidence without the application, where the *361latter forms a part of it. In that case the defect was cured by the defendant putting in evidence the application. Such was not the case here. The defendant produced the application in court and tendered it to the plaintiff, who refused to offer it. The court admitted the policy without the application, which was error.
9. The deed from Storrs, assignee, to Means, reconveying the assigned property, was competent evidence to show that Means was the real party in interest. This already appeared; the evidence was cumulative and not very important. Yet I see no good reason why it should not have been recei ved.
The first writ of error is quashed.
The judgment is reversed upon the second writ, and a venire facias de novo awarded.
Mercur, J., dissented.