
    
      Court of Common Pleas, Dauphin County,
    
    
      March 11th, 1857.
    Miller v. The State Mutual Insurance Company.
    In an action on a policy of insurance no affidavit of defence is required.
    
      Bishop, for plaintiff.
    
    
      Kunleel, Lawrence, and Bimonton, for defendant.
    
   By the Court.

In an action on a policy of insurance, whether brought in covenant or assumpsit, no affidavit of defence is required. It is not an instrument of writing for the payment of money within the ordinary acceptation of the term, but is a contract of indemnity against loss. The money is only payable on a contingency; and in addition, this and every policy contains certain conditions to be performed by the party insured. The insurer does not even contract to pay a specific sum, but merely as much as will cover the loss, not exceeding a stated amount. The underwriter has the right by the terms of his contract to repair an injured building when the destruction is partial, to insist on preliminary proof in every case, and to have the amount adjusted by referees if he thinks proper. As well might it be contended that a bond given under a penalty to build a house by a certain time was a contract for the payment of money. There is no reported case in which it has been held that a contract of insurance came within any law or rule of court in Pennsylvania, requiring an affidavit of defence. That method of obtaining an early judgment was intended for cases of clear and unconditional contracts for the payment of money, and not for contingent and uncertain bargains. The judgment in this case was improvidently taken, and must be set aside.  