given, and also because we do not see that its delay forfeited the policy.

But how as to proof of loss? The bill makes no pretense that it was given or attempted to be given. This makes the bill bad, because it admits that a duty to furnish proof of loss rested on Munson, and the law is settled that such proof is indespens able to a suit for recovery. If a pure bill of discovery could be maintained upon a bill not averring that proof of loss had been furnished, still a bill for discovery and relief cannot be sustained without such averment. "If the furnishing of proofs of loss is a condition precedent to the bringing of action, performance or waiver of it must be shown." Kerr on Ins. 767. This bill is one of discovery and relief, not a pure bill of discovery. There is jurisdiction in equity regardless of discovery, since the bill states the loss of the policy; but there can be no relief upon a bill not stating that proof of loss was furnished or waived. It was error to overrule the demurrer and compel a discovery as no proof of loss had been given before the suit. Proof of loss afterwards would not avail for this suit. The bill is defective in another respect. When discovery from a corporation is asked it is indispensable to make some proper officer of it a defendant, as a corporation cannot answer under oath, and therefore the practice is to make such officer a party. Teter v. W. Va. Cent. & Pa. R. R. Co., 35 W. Va. 433; Roanoke Street R. Co. v. Hicks, 32 S. F 295. In the latter case the Virginia court said: "A bill cannot be maintained against a corporation alone, as one for discovery, it being unable to answer under oath."

The company in response to the command for discovery, produced a copy of this policy. It provide: that "If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company * and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to or said insured stating" (giving the details of the proof of loss). The policy contained this provision: "No suit or action on this policy shall be sustainable in any court of law or equity until after full compliance by the insured with all the foregoing requirements, nor unless commenced within twelve months after the fire." It contained no clause of forfeiture for failure to comply with this provision, that is, as to

notice of loss and proof of loss. It does contain provisions forfeiting the policy for keeping certain inflammable articles. in the house and other causes, but does not forfeit for failure to give notice and proof of loss. As stated above the bill states that prompt notice by letter was given of the fire, which is prima facie evidence of its reception by the company; but it is only prima facie evidence. The officers of the company swear that this letter did not reach the company. This repels the claim of early notice to the company Joyce on Ins. section 3300. The earliest notice to the company was 3rd January, 1902. The fire was 20th October, 1901. None of the authorities hold that this notice would comply with the provision of the policy demanding immediate notice of loss. Joyce on Ins. section 3291; May on Ins. section 462; Elliott on Ins. section 304; Kerr on Ins. p. 482. It would seem very reasonable that such a provision ought to be complied with within a reasonable time. How can a distant company without such notice know of the fire and take steps while the matter is fresh to investigate the facts for its own protection? But the policy does not forfeit for this cause, though it is particular to do so for other causes. "If no forfeiture is provided for in case of failure to furnish the proofs, forfeitures being stipulated in case of breach of other requirements, or furnishing the proofs in the specified time is not made a condition precedent to recovery, the great majority of recent decisions hold the effect of failure to furnish them is merely a postponment of the time of payment to the specified time after they are furnished." 13 Am. & Eng. Ency. L. (2 ed.) 329; Rheims v. Standard Fire Ins. Co., 39 W. Va. 672. Elliott on Ins. section 307 says: "Where no forfeiture is provided by the contract, and the service of the proof of loss is not made a condition precedent to the liability of the company, the effect of such failure is simply to postpone the day of payment. No liability attaches to the company, however, until such proofs are furnished; but, unless otherwise provided, expressly or by fair implication, it is not important that proofs be not in fact served within the time stated in the policy." It is there stated that it is only when the policy forfeits the right that the liability ends. Kerr on Ins. 450 lays down the same law. But without regard to absolute forfeiture of the policy, it still can be said under all the authori

ties that where a policy calls for proof of loss before suit no suit can be maintained upon it without such proof. This is shown by authorities above given and by our own cases. Peninsular L. T. Co. v. Franklin Ins. Co. 35 W. Va. 666; Flan agan v. Phoenix Ins. Co., 42 Id. 426; Adkins v. Globe Ins. Co. 45 Id. 284. It is said that the Rheims case does not hold that proof of loss is a condition precedent to suit, and that it differs from the three cases above mentioned. I do not think so. That case turned more on a waiver. The Rheims case holds that where proof of loss is to be made within a fixed time, but the policy does not forfeit for failure therein, failure to make proof of loss within the time does not forfeit the policy, but postpones action until proof is made. There was proof in that case, but not within the time.

It does not hold that suit can be brought without such proof. The Peninsular case does not assert a forfeiture, but declares, with the Rheims case, that proof before suit is necessary. The Flanagan and Adkins cases say nothing as to forfeiture, but assert the prerequisite of proof before suit. All the cases are consistent with two propositions: One, that where proof is required by the policy within a fixed time, but no forfeiture is declared, mere failure to furnish proof within the time does not destroy all right of recovery; the other, that such proof must precede action. The failure of the plaintiff in this case to furnish proof of loss cannot be excused by the loss of the policy, even if Munson was unable to remember its provisions. Persons making an imperative contract cannot plead of failure of memory of its contents. They are bound to remember. One cannot place upon the other damage from the former's loss of memory; he cannot make him carry the burden of an accident which is only the misfortune of the one, not the fault of the other. This policy makes no such exception. Only the act of God can intervene and release the letter of the contract. Joyce on Ins. section 3280; May on Ins. section 465; Kerr on Ins. p. 470.

For these reasons we reverse the decree and dismiss the bill. Reversed.

CHARLESTON.

ANDERSON V. DAVIS & OULD.

Submitted March 1, 1904-Decided March 22, 1904.

1. PAYMENT-Evidence.

Casual admissions alone, although in writing, are insufficient to show payment of an acknowledged debt, when payment is denied and the debtor, being called upon to prove it, fails to testify or introduce other evidence. (p. 433).

2. RECEIPT-Impeachment.

A receipt purporting to be in full of rent of real estate to a specified date, or other account, is only prima facie proof of settlement and may be overcome by contradictory evidence, and no rule of universal application as to the nature and sufficiency of such evidence can be formulated. (p. 434).

3. MARRIED WOMAN- Liability-Family Supplies.

The husband being the head of the family and under a legal duty to support it, the separate estate of the wife is not liable for an account for family necessaries supplied by a merchant, when it is not shown that she has agreed to pay for them or estopped herself from denying liability thereof. (p. 435).

Appeal from Circuit Court, Mercer County.

Bill by J. M. Anderson, trustee, against Davis and Ould and others. From the decree, plaintiff and defendant Huff., Andrews and Thomas Company appeal.

Affirmed.

R. C. & B. McCLAUGHERTY, ANDERSON & EASLEY, and HENSON & MASON, for appellants.

W. WALTER MCCLAUGHERTY, for appellees.

POFFENBARGER, PRESIDENT:

Two appeals from the same decree of the circuit court of Mercer County have been taken in the chancery cause of J. M. Anderson, trustee, v. Davis and Ould et als, one by the plaintiff, Anderson, trustee, and the other by Huff, Andrews & Thomas Company, both of which present the same question on the merits of the case. On the 7th day of May, 1900, Davis and

Ould, partners, doing a mercantile business, in the city of Bluefield, made a general assignment for the benefit of their creditors by conveying all their property to J. M Anderson, trustee. Later, the trustee brought this suit to convene all the creditors and determine the amounts and priorities, if any, of the debts due from the firm, making Mary O. Lusk a defendant along with numerous other creditors. She answered the bill setting up claims for rent of the room in which the firm carried on its business, amounting, in the aggregate, to $768.50. Of this sum, $240.00 was charged as the rent from May 15, 1896, to May 14, 1897, inclusive, and the residue of $528.50 as the rent from May 14, 1897, until May 8, 1900. In addition to this, she claimed $22.50 as rent due from the trustee for the use of the room from May 8, 1900, until June 21, 1900. She averred that of the amount so due to her, she had assigned about $80.00 to W. Walter McClaugherty, out of which he was to pay a judgment in favor of E. Levering & Company for $63.40, with interest and cost thereon, a judgment in favor of the American Thread Company for $20.34, with interest and cost, whatever individual amount or claim he might have against her, and the balance, if any, to her or her order. There was a reference to a commissioner who refused to allow Mrs. Lusk anything, but, on exception to his report, the court disapproved his action in respect to said claim, sustained the exception and allowed her the sum of $550.00, and adjudged that, $196.20, part of said sum of $550.00, being one year's rent of said room, was the first lien on the assets of the firm. From so much of the decree as allows this sum to Mrs. Lusk, and gives her the lien aforesaid, the trustee and Huff, Andrews and Thomas Company have appealed. Huff, Andrews & Thomas Company show that their claim was $1,145.56, on which they would have received a dividend of 50 per cent, equal to $578.50, but for the allowance aforesaid to Mrs. Lusk, in consequence of which their dividend was reduced to 41 55-100 per cent, yielding them only $476.00. Claiming a loss of $102.50 to them by reason of said allowance, they appeal.

A dismissal of the appeal of Anderson, trustee, is urged upon the ground that he has not sufficient interest in the controversy between the creditors to enable him to sustain an appeal. The suggestion in this connection is that, by resisting the allowance