
    BILLMEYER ET. AL. VS. PEOPLE’S FIRE INSURANCE CO.
    An assessment, to pay losses accruing during the continuance of a policy, may be levied upon the premium note, after the policy has expired, and a lien may be entered by virtue thereof.
    Where an assessment is levied, the burden of proof, to show that it was not for losses accruing during the continuance of the policy, is upon the policy-holder
    Appeal from the Common Pleas of Union County. In Equity. No. 112 May Term, 1877.
    Billmeyert Dill & Co., insured their frame steam saw mill, 34 by 150, and engine shed attached on the north side, 20 by 66 feet; giving a premium note for $1,000, dated July 23rd, 1867, the insurance expiring July 23rd, 1872; situated on the west side of Buffalo Creek, Lewisburg, Union County, Pa. On December 24, 1873, the company entered a lien against Billmeyer & Co., for an assessment levied January 18th, 1873, in pursuance of an Act of Assembly of 13th April, 1838, P. L. 364, Section 6th, extended to the Cumberland Yalley Mutual Protection Co., by Act of' April 11th, 1844, P. L. 239. Billmeyer & Co. then filed a bill in equity to restrain execution on the judgment so entered. It further appeared that the premises insured had been destroyed by fire during the continuance of the policy, and the ground subsequently aliened. The Master decided that under section 5 of Act of March 25, 1869, P. L. 534, (which is as follows: “That whenever an assessment is levied by the directors of this company on the notes of its members and an action is brought for the recovery of such assessment, the certificate of the secretai-y of the company cer- • tified to under oath, stating the amount of thenote, and the amount due thereon by reason of said assessment, shall be taken and received as prima facie evidence thereof in any Court of this Commonwealth,”) a lien having been filed duly verified, the burden was on the complainant to show that the assessment was levied for losses that had accrued while the policy was not in force. The Master also decided that an assessment could be levied after the policy expired, to pay losses accruing during the continuance of the policy. The plaintiffs also alleged that there had been false representations made to them as to the financial condition of the Company when they insured; the Master found against them on the question of fact aS to false representations. Billmeyer & Co. also had another property insured, under similar circumstances, and the company also levied another assessment on May 13th, 1872. The Court confirmed the report and dismissed the bill; and Billmeyer & Co. then appealed, assigning inter alia the foregoing errors.
    
      Messrs. Linn & Dill, Esqrs., for appellants, argued:
    That the lien was not entered in time: Pittsburgh and Connellsville R. R. vs. Byers, 8 Casey, 22; Pitts. & C. R. R. vs. Graham, 12 Casey, 77. Plaintiffs in error are not affected by the Act of 1869 pagsed after their notes were given. After the property was sold the lien could not be entered: Wilson vs. Trumbull Mutual Fire Ins. Co., 7 Harris, 375.
    
      Messrs. G. F. Miller & Sons, Esqrs., contra, argued:
    That the assessment made in this case is legal: Hageman vs. People’s Fire Ins. Co., ante, page 510. Insured is liable for assessments on his premium note, during the whole term of the insurance, even if the property is burned down and the policy lost: 4 Foster, (N. H.) 42; 5 do., 369; 24 Barbour, 29; Flanders on Insurance, 24. And even if the policy is forfeited for neglect to pay assessments: 11 Iowa, 115. Assessments may be made after the policy has expired, to pay losses accruing during its continuance: Marblehead Ins. Co. vs. Underwood, 3 Gray, 210; 19 Missouri, 135; Flanders on Insurance, 134. The insured is bound by the assessment, unless fraud or gross mistake on the part of the directors is shown: 1 Hilton, 430; Hummel’s Appeal, 28 P. F. S. 325. It is sufficient if a mutual insurance company makes its assessments as to approximate as near as possible to the losses accruing: Fire Ins. Co. vs. Belknap, 9 Cushing, 140. Appellants are subject to the Act of March 25, 1869; Robinson’s Appeal, 2 W. N. C. 150; Gray vs. Monongahela Nav. Co., 2 W. & S. 156.
   The Supreme Court affirmed the decision of the Court below on October 8th, 1877, in the following opinion per

Gordon, J.:

This bill was brought to restrain execution on judgment, No. 62, Dec. Term, 1875, The People’s Fire Insurance Company of Pennsylvania vs. Philip Billmeyer, George P. Matlack, H. H. Wolf A. H. Dill, M. R. Dill and W. H. Himmelreich, trading as Billmeyer, Dill & Co. This judgment is founded upon certain assessments upon premium notes, given by the plaintiffs to the defend, ants on certain contracts for the insurance of saw-mill properties in the borough of Lewisburg, and was entered by certificate under the provisions of the Act of April 13, 1838, P. L. 364. This judgment seems so far as we can ascertain, to be regular and binding upon the premises insured. Plaintiffs, however, complain that the assessment of May 13, 1872, was not made until after the expiration of one of the policies, and that of January 18th, 1873, not until after the expiration of both. This complaint avails nothing, as the Master finds the assessments were made to pay losses occurring during the life of the policies. These further allegations are made: that at the time of insurance, the agent of the company represented it to be solvent, whereas, in fact, it was insolvent; that all lossess occurring during the liability of the plaintiffs were adjusted and paid, and that the property insured was personal, not real, hence no lien could be created against it by the filing of the memorandum and certificate under the sixth section of the company’s charter. Had either of these allegations been made good the plaintiffs would have sustained their bill, but, failing in this, their bill was dismissed.

Decree affirmed.  