1. The plaintiff by his declaration dispensed with any averment in the answer that the action was barred by lapse of time. The allegation of a waiver of such bar by necessary implication admitted- its existence, and put the issue solely on the question of waiver. It was sufficient therefore for the defendant to meet the issue thus tendered him by the plaintiff by denying in clear and distinct terms that any such waiver had been made.
2. The facts relied on to show that the plaintiff was not the owner of the property insured at the time of making application for the policy, and that his statements in this particular were false, do not sustain this ground of defence. The bill of sale was without consideration and had never been delivered, nor had the property, either actually or constructively, ever passed out of the plaintiff’s possession. It is clear that as between vendor and vendee there had been no such delivery as to pass the property; a fortiori, there was none to change the title as respects third parties.
3. The remaining ground of defence, that the policy was void because the premises had been used for purposes “ denominated hazardous, extrahazardous, or included in the memorandum of special hazards, and not specified in the policy,” is not sustained by the proof. It does not appear that the use of a single room in the building in the manner proved at the trial comes within any of the prohibited hazards which cannot be incurred without special leave. The premises were not used as a “ cotton mill,” “ woollen mill” or a “manufacturing establishment requiring the use of heat,” nor for “ storing cotton in bales ” or “ wool.” These are the only occupations enumerated among those which are called hazardous, extrahazardous or specially hazardous, which in any aspect of the proof could be said to resemble those which were carried on in the premises insured; but the evidence falls short of proving that the building was actually used during the existence of the policy for any of them.
New trial ordered.