similar provision, and when the same case came before the same court seven years later, the principle was affirmed by Mr. Justice Story: See Columbia Ins. Co. v. Lawrence, 10 Pet. 507. The doctrine was squarely affirmed in Gilligan v. Commercial Fire Ins. Co., 87 N. Y. 626; Johnson v. Phænix Ins. Co., 112 Mass. 49; 17 Am. Rep. 65; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. In our own cases of Commonwealth Ins. Co. v. Sennett, 41 Pa. St. 161, and Mueller v. South Side Fire Ins. Co., 87 Pa. St. 399, the same rule is recognized, and in the former case the opinion of Lord Kenyon in Worsley v. Wood, 6 Term Rep. 710, is referred to with approval. The only cases cited against this overwhelming weight of authority were Universal Fire Ins. Co. v. Block, 109 Pa. St. 535, and Davis Shoe Co. v. Kittanning Ins. Co., 138 Pa. St. 73; 21 Am. St. Rep. 904. The dictum of those cases must give way before such an unbroken line of decisions. The moral to be drawn from this is, that in every instance it is wise to study a case with sufficient care to ascertain the very point decided, and not place too much reliance upon the illustrations of the judge who writes the opinion. They are sometimes drawn hastily from the means conveniently at hand, and necessarily, in our great pressure of business, without the examination and reflection which we give to the question decided. I may be allowed to point this moral, for the reason that it is, in part at least, pointed at myself. It was urged on behalf of the plaintiff that the defendant company merely announced its election to rebuild, and has not in point of fact done so, nor has it attempted to do so. The answer to this is, that its right to rebuild was denied by the plaintiff, and such denial promptly followed by a suit. The company could not be required to pay and rebuild also. Our conclusion is, that the option to rebuild was exercised in time, and that this suit cannot be sustained. Judgment reversed. - INSURANCE-CERTIFICATE OF MAGISTRATE NECESSITY FOR-SUFFICIENCY AND WAIVER OF. - Policies of fire insurance generally contain a condition to the effect that the insured, in case of loss, shall procure the certificate of the nearest magistrate, notary public, or some other officer, not concerned in the loss, or related to the insured or sufferer, that he is acquainted with the character and circumstances of the person insured, and knows or believes that he honestly, and by misfortune, and without fraud, has sustained by fire loss or damage to the amount stated in the certificate, and that until such certificate is produced the loss shall not be deemed payable. The effect of the insertion of such a stipulation in the policy is to make compliance with it a condition precedent to recovery, unless a waiver on the part of the insurer is shown: Columbia Ins. Co. v. Lawrence, 10 Pet. 507; Central City Ins. Co. v. Oates, 86 Ala. 558; Leigh v. Springfield etc. Ins. Co., 37 Mo. App. 542; Edgerly v. Farmers' Ins. Co., 43 Iowa, 587; Johnson v. Phoenix Ins. Co., 112 Mass. 49; 17 Am. Rep. 65; Roumage v. Mechanics' Fire Ins. Co., 13 N. J. L. 110; Noonan v. Hartford Fire Ins. Co., 21 Mo. 81; Leadbetter v. Etna Ins. Co., 13 Me. 265; 29 Am. Dec. 505; Daniels v. Equitable Fire Ins. Co., 50 Conn. 551. These cases maintain that a strict compliance with the condition is essential to a recovery, and that the refusal of the nearest magistrate, notary, or officer to make and execute the certificate will not excuse performance on the part of the assured. The rule is deduced from Worsley v. Wood, 6 Term Rep. 710, where the reasons given for the decision were, that the insurer, in order to protect himself against fraud, had the right to say, and by the terms of the policy had said, that he would pay no loss except upon the certificate of the person specified; that the assured, by accepting the policy, assented to the condition, and came within the rule by which one who engages for the act of a stranger must procure the act to be done, and the refusal of the stranger, without the interference of the other party, is no excuse. In Johnson v. Phoenix Ins. Co., 112 Mass. 52, 17 Am. Rep. 65, the court said: "At the trial of the present case, it was admitted that the plaintiff did not furnish the certificate required by the policy, and there was no evidence that the defendant did anything to prevent his getting a certificate, or to waive the want of one. His application in good faith to the proper magistrate for the requisite certificate could not enable him to maintain the action; for the condition precedent to the right to sue was, not that he should use his best efforts to procure, but that he should procure, the certifi cate. He has not therefore proved the case upon which the defendant promised to indemnify him." To the same effect is Leadbetter v. Etna Ins. Co., 13 Me. 265; 29 Am. Dec. 505. Such a clause in the policy does not require a strict, literal compliance, more than a condition in an ordinary contract: Turizy v. North Am. F. Ins. Co., 25 Wend. 374. Still, a certificate from any other than the nearest qualified officer is not a compliance, when the nearest not only does not refuse to act, but actually gives a certificate different from that required: Noonan v. Hartford F. Ins. Co., 21 Mo. 81. While the refusal of the nearest magistrate to give the certificate will not dispense with the necessity of furnishing one, still, his capricious refusal will not prevent a recovery, if the certificate of another magistrate is obtained: Leigh v. Springfield etc. Ins. Co., 37 Mo. App. 542. When the nearest officer certifies to the other necessary facts, and then refuses to certify the amount of loss on the ground of his ignorance thereof, this is not a compliance by the assured with a condition in the policy requiring a certificate of the amount of loss. Such stipulation is a condition precedent to recovery, and recovery cannot be had without a strict compli ance: Roumage v. Mechanics' F. Ins. Co., 13 N. J. L. 110. The certificate of loss need not be in the precise words of the policy. If it means the same thing, it is sufficient. Hence when the condition re quires that the magistrate shall state in his certificate that he is acquainted with the character and circumstances of the insured, and that, having investigated the circumstances of the loss, he believes that the insured has sustained loss to the amount mentioned in the certificate, and such certifi cate, after reciting the other necessary facts, recites that the insured has sustained loss to the amount of the buildings mentioned in the account loss of the assured, such certificate is a sufficient compliance with the terms of the condition: Etna F. Ins. Co. v. Tyler, 16 Wend. 385; 30 Am. Dec. 90; Lockwood v. Middlesex etc. Ins. Co., 47 Conn. 553. Where the issue is raised that it is a badge of fraud that the insured did not furnish from the nearest magistrate a certificate of his loss, but furnished the certificates of other magistrates near by, the certificate of the nearest magistrate, reciting that he had examined into the loss, and believed it bona fide a total loss of goods, but had not had time to examine as to the exact amount of the loss, is admissible, though not a compliance with the policy, in failing to state the amount of the loss: Petersburgh Ins. Co. v. Manhattan Ins. Co., 66 Ga. 446. Where the policy requires that the insured must furnish with his proofs of loss a certificate of the value of such loss, but does not make the certificate an award, or stipulate that the insured shall be bound by his estimate, a statement by the insured in his proof of loss, fixing the amount at a certain sum, while the certificate of the magistrate, which formed part of such proof, states the loss to be a less sum, will not limit a recovery to the amount stated in the certificate, but the insured may establish the true amount of his loss by witnesses: Birmingham F. Ins. Co. v. Pulver, 126 Ill. 329; 9 Am. St. Rep. 598. As to what is a compliance with the condition that the nearest magistrate or notary must certify to the loss, the rule was laid down at an early datethat in determining the contiguity of the magistrate or notary to the place of the fire, the place of his business, and not his residence, will be regarded, and a nice calculation of distances will not be gone into to ascertain the nearest officer who might have given the certificate. The proximity of such officer to the place of the fire is all that can be required: Turley v. North Am. F. Ins. Co., 25 Wend. 374. This rule has been uniformly followed, and the reason therefor is given in Williams v. Niagara F. Ins. Co., 50 Iowa, 561-565, to be, that "the provision in the policy that the certificate therein. required must be given by the nearest magistrate or notary public was, without serious doubt, inserted for the purpose of preventing the insured from selecting the officer to perform such duty. While this is so, the provision must have a reasonable, instead of a literal, construction. It does not, we think, require that the distance should be determined by the extension of a straight line, or that a surveyor should be called in and an exact measurement taken. Nor is it required that the assured should cross lots. In the absence of bad faith on the part of the assured in selecting the officer, nice distinctions as to the distance should not be indulged." So in German American Ins. Co. v. Etherton, 25 Neb. 505-510, it was said that "upon that subject we need only say that, in our opinion, it was not necessary that a careful and correct measurement of distances should be made for the purpose of ascertaining the nearest officer qualified to make the certificate.' Again, in American Central Ins. Co. v. Rothchild, 82 Ill. 167, the court said: "We will enter into no calculation to ascertain whether the office or residence of the officer who made the certificate of loss as required by the ninth condition of the policy was a few feet nearer or more distant from the exact point where the fire occurred, than that of another notary or justice. It is sufficient if it appears the certificate was made by an officer of the character designated residing in the same locality. That is all this condition in the policy requires, when given a common-sense construction. Where there are several officers residing in the same immediate neighborhood, all of whom are competent to make the certificate of loss, that of either of them will be sufficient compliance with the condition of the policy, and a distance of a few yards more or less from the scene of the fire will not be regarded as a matter of any importance whatever." Several decisions, however, seem to conflict somewhat with this rule, although in them no fine distinctions as to distance was sought to be drawn. They maintain that, under such requirement, the certificate of the nearest officer of the classes named, whether magistrate or notary, is necessary, and that the certificate of the nearest magistrate, if a notary is nearer, is insufficient, and not a compliance with the condition: Williams v. Queen's Ins. Co., 39 Fed. Rep. 167; Gilligan v. Commercial F. Ins. Co., 20 Hun, 93; 87 N. Y. 626. Where the certificate of the magistrate who lived nearest the place of the fire, and who stated therein that he was not competent to appraise a portion of the property destroyed, was offered in evidence, and on objection another was offered, given by a magistrate whose residence was more distant, but whose office or place of business was nearer, than that of the other magistrate, and containing a compliance with all the stipulations of the policy, it was decided that the second certificate offered was admissible, and a compliance with the policy, and that in construing such condition fine distinctions would not be drawn as to distance, in order to enable the insurer to escape obligation on his valid contract through mere technicalities: Agricultural Ins. Co. v. Bemiller, 70 Md. 400. Or where it appears that the nearest notary refused to act, on the ground that he was employed by the insurance company in ascertaining the facts and taking affidavits concerning the fire, the insured is relieved of the necessity of obtaining his certificate, and need not inform the insurer of the reason for obtaining the certificate of another notary: Noone v. Transatlantic F. Ins. Co., 88 Cal. 152. In this connection it may be stated that a notary public is not a magistrate within the meaning of a policy requiring a certificate of loss by a "magis. trate nearest the place of fire": Cayon v. Dwelling House Ins. Co., 68 Wis. 510; and that, under a statute in Maine, a condition in the policy requiring such certificate is void: Bailey v. Hope Ins. Co., 56 Me. 474. A condition in a policy that the nearest magistrate, notary, or other offi cer, not interested in the loss, nor related to the assured, must certify to the loss is only intended to secure an impartial arbitrator between the parties, -one who will neither gain nor lose, directly or indirectly, by the determi nation of their rights and obligations in respect to the loss. Consequently, in an action on such a policy, where it appeared that the nearest magistrate owned and occupied, as a residence and store, a building adjoining the premises burned, that he had no insurance on his property which was injured as direct result of the fire, and that he had made complaint before a magis. trate charging the insured with having set the fire, it was held that as his certificate as required by the policy would be almost conclusive against his right to recover his loss as against the insured, he was interested in the loss within the meaning of the policy, and that the certificate of the next nearest qualified officer was a sufficient compliance with the condition in the policy: Wright v. Hartford F. Ins. Co., 36 Wis. 522. So where the nearest qualified officer is a mortgage creditor of the insured, and refuses to make the certificate, the certificate of the next nearest is a sufficient compliance with such condition: Smith v. Home Ins. Co., 47 Hun, 30. Such a condition in a policy means that the certifying magistrate must not be concerned in the loss by reason of having an interest in the property insured, or in the policy as security for a debt to him, and does not disqualify a magistrate from acting who is a general creditor of the assured: Dolliver v. St. Joseph etc. Ins Co., 131 Mass. 39. The certificate of the magistrate need not state upon its face that he is not related to the insured, nor interested in the loss, although such must be the fact: Erwin v. Springfield etc. Ins. Co., 24 Mo. App. 145; and the statement therein that he is not related is sufficient until the insurer establishes to the contrary: Cornell v. Le Roy, 9 Wend. 163. WAIVER. - When the policy requires the production of the certificate of an officer before the loss is payable, and no word or act has been done by the insurer to mislead the insured or throw him off his guard, mere silence does not create the inference of a waiver of this condition: Mueller v. South Side Ins. Co., 87 Pa. St. 399. Nor does such waiver result from the fact that the assurer, after receiving a certificate which is not in compliance with the condition, enters upon an investigation as to the extent of the loss, without immediately objecting to the certificate, and offers to pay a certain amount: Noonan v. Hartford F. Ins. Co., 21 Mo. 81. The production of the certificate is not waived by the insurer's agent receiving proofs of loss without objection to the omission of the certificate, in the absence of proof of authority in the agent to make such waiver. In one case it was held that the production of the certificate was not waived by the insurer objecting to pay the loss on other grounds, nor by the fact that proofs of loss have been in his hands for two years, without calling the attention of the assured to the absence and want of the certificate: Daniels v. Equitable Ins. Co., 50 Conn. 551. Again, the mere delay of the insurer of thirty-seven days before requiring the certificate is not a waiver thereof, when the policy is not payable until sixty days after proofs of loss are received, and the assured does not claim that the delay prevented him from obtaining the certificate so as to begin suit at the expiration of that time, or that any other injury was caused by the delay: Williams v. Queen's Ins. Co., 39 Fed. Rep. 167. On the other hand, the retention by the assurer, until the time of suit, without objection, of proofs of loss, otherwise proper, and accompanied by the certificate of a notary, instead of a magistrate, as required by the policy, will constitute a waiver of such defect: Cayon v. Dwelling House Ins. Co., 68 Wis. 510. The more rational decisions, however, show that the insurer must act in good faith; and cannot, after his seeming acquiescence in the proofs furnished, object that no certificate has been produced, or if produced, is defective in substance or in not being made by the proper magistrate or other officer. Thus if the insurer does not object within a reasonable time, as within two months, to the absence of the required certificate from the proofs of loss, he will be deemed to have waived all defects in such proofs: Killips v. Putnam F. Ins. Co., 28 Wis. 472; 9 Am. Rep. 506. So a delay of five months in objecting to the certificate furnished is a waiver of objection to its sufficiency: Lockwood v. Middlesex Mutual Ins. Co., 47 Conn. 553. The insurer's neglect to object within a reasonable time to the proofs of loss, including the magis trate's certificate, when the defects therein could have been remedied if intelligently pointed out, amounts to a waiver of their insufficiency: Mercantile Ins. Co. v. Holthaus, 43 Mich. 423. So if the certificate is defective, the assurer will not be allowed to insist upon its insufficiency if he has refused to return it to the insured for the purpose of correction, and has failed to point out what he deems to be defects therein: Turley v. North Am. Ins. Co., 25 Wend. 373; and when the only objection made to the proofs of loss is, that they do not contain the required certificate, and the insured has the right to furnish the certificate at a later date, the objection that proofs were not furnished in time is waived: Badger v. Glens Falls Ins. Co., 49 Wis. 389. All necessity on the part of the assured to furnish the certificate of loss |