ity of their returning to Sicily may be great. But ILLUSTRATIONS. (B.) 1. In a proceeding against a citizen of the United States residing in England by the government of the United States in the English courts, a witness is asked certain questions which he refuses to answer, on the ground that they will subject him to penalties in the United States. An act of Congress, prosecuting the penalties in such cases, is in evidence. The answer is privileged (4.) whose authority and in whose name the proceedings for the forfeiture are instituted, and who have the property to be forfeited within their reach. The case therefore stands thus: The United States, to whose existing law of forfeiture the defendant is said to have rendered himself amenable, are proceeding against him to obtain from him an account of moneys and goods which have come into his possession in the very character of agent to the Confederate States, by which his landed property in the United States has become liable to forfeiture. He cannot state any of the circumstances connected with his agency without his answer having a tendency to expose him to the forfeiture. It is a case entirely distinguishable from King of the Two Sicilies v. Willcox (6). There it was not shown that the defendants had rendered themselves liable to criminal prosecution. Here the plea alleges the particular ground of liability to forfeiture and that proceedings have actually been taken and are pending to enforce it. There it was doubtful whether the defendants would ever be within the reach of a prosecution, and their being so depended upon their voluntary return to their own country. Here the subject of forfeiture is within the power of the United States, and the proceedings against the defendant will be equally effectual whether he remains here or returns to the country where his property is situate. Under these peculiar circumstances I cannot distinguish the case in principle from one where a witness is protected from answering any question which has a tendency to expose him to forfeiture for a breach of our own municipal law. The United States coming into our courts must be subject to every rule of evidence which prevails in them, and amongst others, to that which protects a witnes from exposing himself to penalties by his answer. And it appears to me that it would be most unjust not to extend this protection to a case where the party seeking the disclosure has the power to proceed for the forfeiture and the means of enforcing it." JOHN D. LAWSON. In case 1 Lord Chancellor Chelmsford referring to case 1, illustration A, said: "I quite agree in the general principles stated of Lord Cranworth and in their application to the particular case before him. There was nothing on the face of the proceedings to inform the mind of the judge whether there was any, and if any, what foreign law applicable to the case, or whether the defendants had incurred any penalty or forfeiture by acting in this country as the agents of the revolutionary government in Sicily. The only ground upon which the defendants objected to produce the documents in their possession was stated in their answer to be, that they believed and had been advised that the production of them would 'expose and render them subject to criminal prosecution, punishment and penalties in Sicily.' This did not furnish the least informa. tion what the foreign law was upon the subject, though it was necessary for the judge to know this with certainty before he could say whether the acts done by the persons who objected to answer had rendered them amenable to punishment by that law or not. Upon the particular circumstances of the case of King of the Two Sicilies v. Willcox (5) I have no doubt that it was most correctly decided. But in giving judgment Lord Cranworth went beyond the particular case, and expressed his opinion that the rule upon which the defendants relied to protect them from answering was one which existed merely by virtue of our own municipal law, and which must have reference exclusively to matters penal by that law. It was unnecessary to lay down so broad a proposition to support the judgment which he pronounced, and he certainly could not have contemplated a case when the presumed ignorance of the judge as to foreign law is completely removed by the admitted statements upon the pleadings, in which the exact nature of the penalty or forfeiture incurred by the party objecting to answer is precisely stated, and where the plaintiffs ferred that it was fraudulently destroyed or lost durcalling for an answer are the sovereign power bying his life-time, in which case it was his last will and (4) United States of America v. McRae, L. R., 3 Ch. App. 79 (1867). (5) 1 Sim. (N. S.) 301. LOST WILLS. Fa will, shown since to have existed, cannot be found after the death of the testator, the presumption is that he destroyed it animo revocandi, yet this presumption may be rebutted by evidence. 2 Greenl. Ev., § 688, and notes. In Schultz v. Schultz, 35 N. Y. 653, it appeared that the will, at the time of its execution, was placed by the testator in the hands of a custodian, who took charge of it and locked it up in a trunk, and supposed it was there at the time of testator's death, but upon search it could not be found, held, the evidence of its legal existence at the time of testator's death was sufficient. If under such circumstances the will was not, in fact, in existence at the death of the testator. it is to be in testament. Id. (6) 1 Sim. (N. S,) 301. The presumption of revocation may be rebutted by the declarations of the testator, showing the continued existence of the will, down to near the time of his death. The New York cases, taken together, establish this proposition. The case principally relied on as holding the contrary is Jackson v. Betts, 6 Cow. 377. This case appears in another aspect as Dan v. Brown, in 4 Cow. 483. It also appears again in 9 Cow. 208, and in 6 Wend. 173. The probate of the same lost will, namely, the will of Benajah Brown is involved in all of these cases. Iu Dan v. Brown, 4 Cow. 483, the first time this case was before the court, the declarations of the testator were admitted without objection. So that case cannot be considered an authority against the admissibility of such declarations. The next time the case appears is in 6 Cow. 377. Here the evidence of the testator's declarations was objected to and excluded. Judge Sutherland, writing the opinion of the Supreme Court, says: "The declarations of the testator during his last sickness, as to the existence of his will, and the place where it would be found, were incompetent evidence, and were properly rejected by the judge." He says this was so decided by the court in Dan v. Brown, 4 Cow. 483, but it will be seen on an examination of the latter case, that the evidence was admitted without objection. Judge Sutherland does not undertake to give any reason for excluding these declarations. He simply states the proposition dogmatically, without argument. A new trial was ordered, and the case came up again in 9 Cow. 208. Here no question as to the admissibility of the declarations seems to have been before the court. The case next appears in the Court of Errors (6 Wend. 173), on appeal from the decision reported in 9 Cow. 208. Chancellor Walworth writes the principal opinion in the Court of Errors, and very pointedly disapproves the decision excluding these declarations as laid down by Judge Sutherland in 6 Cow. 377. He says that the "uniform practice of the English testamentary courts has been to receive such declarations, to strengthen or repel the presumption that a will, once legally executed, but not found at the death of the testator, has been destroyed by him.” The next case in which this question was discussed, is Grant v. Grant, 1 Sandf. Ch. 235. The statement of facts in this report is very meager, but from a remark in the opinion it would seem that evidence of declarations by the testator was admitted on the trial without objection. The declarations were not offered to prove a non-revocation of the will, but to prove its execution. This is evident from a remark of the court, who seems to think that the only object of the testimony was to prove a valid execution. The declarations of the testator are certainly not competent, unsupported by other evidence, to prove that a will was duly executed. The court does not say that declarations of the testator are not competent to rebut the presumption of revocation. On the contrary, the court says that such declarations would probably be admissible where the issue is upon the revocation of the will, and Betts v. Jackson, 6 Wend. 173, is cited as sustaining this view. So Grant v. Grant,taken as a whole, cannot be regarded as an authority against the admissibility of the testator's declarations. The next and last time this question seems to have been up in this State, was in Knapp v. Knapp, 10 N. Y. 276. In that case evidence of declarations by the testator, made a month before his death, as to the existence of his will, and as to where it might be found, was admitted without objection, and no question seems to have been raised by the counsel or any court, from the trial court to the Court of Appeals, as to the propriety or competency of the proof. This case must be taken as an authority in favor of the admissibility of the testator's declarations. The court held that the declarations were too remote from the testator's death to rebut the presumption of revocation, but their admissibility was not questioned. The only New York case holding that this class of declarations is not admissible is Jackson v. Betts, 6 Cow. 377, and that was expressly disapproved by Chancellor Walworth in 6 Wend. 173, and has been disregarded since. Turning to other courts I find that such declarations are held proper in several States in the Supreme Court of the United States and in England. Alabama. In McBeth v. McBeth, 11 Ala. 596, declarations of the testator as to the existence of his will, made shortly before his death, were held proper to rebut the presumption of revocation. One declaration was about three weeks, and another-to his attending physician-but six days before his death. He said to his physician that he was satisfied to die, so far as regarded his property, having disposed of it. The court held this to refer to a will. The court also say: "In our opinion the evidence satisfactorily establishes that during his last sickness, and immediately preceding his death, he supposed the will to be in existence, and relied upon it as a testamentary disposition of his property." "It is then very clear, that at the time he made the statement to the physician he supposed the will to be in existence, and this repels the presumption of a voluntary cancellation or destruction of it previous to that time." It appeared that the testator was physically incompetent to destroy the will during the last six days of his life. The same doctrine is held in Weeks v. McBeth, 14 Ala. 474. Connecticut. In the Matter of Johnson's Will, 40 Conn. 587, it was held that the declarations of a deceased person, to the effect that he was leaving a will, were admissible for the purpose of showing that a lost will had not been revoked. Delaware. In Dawson v. Elizabeth Smith's Will, 3 Houston, 335, evidence of declarations of testatrix that she had a will was held proper to rebut the presumption of revocation. These declarations extended over a period of five or six years before the death of the testatrix. Kentucky. In Steele v. Price, 5 B. Mon. 58, declarations of testator were admitted to rebut the presumption of revocation. Massachusetts. In Davis v. Sigourney, 8 Metc. 487, the same class of declarations was held admissible. Pennsylvania. In Boudinot v. Bradford, 2 Dall. 266 (decided in 1796), similar declarations were held admissible. In Youndt v. Youndt, 3 Grant, 140, conduct and declarations of the testator, up to near the day of his death, were admitted to rebut the presumption of revocation. In Jones v. Murphy, 8 W. & S. 275, declarations as to the existence of a will were held to be proper. Foster's Appeal, 87 Penn. St. 67, is the latest case in Pennsylvania that has come under my observation, which involves the question of the admissibility of this class of declarations. It is a strong and leading case in which the whole doctrine is discussed, and the admissibility of the testator's declarations, to rebut the presumption of revocation, firmly established on principle and authority. All the principal author ities are collated and discussed, and the propriety of this class of evidence amply vindicated. In this case the deceased was known to have made several successive wills, and to have declared the necessity of having one in force at the time of his death. He spoke of the existence of one within two days of his death, at which time he was too feeble to leave his bed without assistance. He soon afterward became unconscious, and so remained until he died. No positive evidence of a revocation was produced. The court held that the presumption of a revocation was rebutted, and say that if a will has been executed and is not found upon the testator's death, the presumption is that he re voked it. This casts the burden upon the proponent of rebutting the presumption by sufficient evidence. This presumption may be rebutted by such evidence as produces a moral conviction to the contrary. The presumption of revocation is only prima facie. It is not a presumption of law, but one of fact, which like any other presumption may be rebutted. South Carolina. The same doctrine is laid down in Durant v. Ashmore, 2 Rich. 184, and in Legare v. Ashe, 1 Bay, 464. Vermont. In Minkler v. Minkler, 14 Vt. 125, Redfield, J., holds the same view, and approves the suggestion of Chancellor Walworth in 6 Wend. 173. United States Supreme Court. This court, in Gaines v. New Orleans, 6 Wall. 642-659, held that declarations by the testator as to testamentary intentions and as to the making of a will were proper. England. In Goodtitle v. Otway, 2 H. Bl. 516 (1795), and cases cited, these declarations are held proper. So in Davis v. Davis,2 Addams, 226 (1824), declarations of the testator down to the very evening of his death were admitted to rebut the presumption of a revocation. In Patten v. Poulton, 1 S. & T. 55; 27 L. J. Prob. 41, it was held by Sir C. Cresswell, that the presumption that a will left in the keeping of the testator, if it cannot be found at his death, has been destroyed by him animo revocatione, is a presumption of fact which prevails only in the absence of circumstances to rebut it, and that among such circumstances are declarations by the testator of good will toward the person benefited by it, adherence to the will as made, and the contents of the will itself. It is also said in this case that the strongest proof of adherence to the will, and of the improbability of its destruction, arises from the contents of the will itself. In Whitely v. King, 17 C. B. (N. S.) 756, in order to rebut the presumption arising from the absence of the will and codicil, that the testator had destroyed them, evidence was offered of repeated declarations made by the testator,down to a short time before his death, expressing his satisfaction at having settled his affairs, and telling one person that he had named him one of his excutors, and another that his will was at Sutcliffe's, an attor ney. The evidence was objected to, but admitted on the authority of Patten v. Poulton, supra. Erle, J., says: "Surely you may look at a man's words to see what his intentions are. The question here was whether the testator had the intention to destroy the will and codicil. Down to the last moment of his life almost, he is found declaring his satisfaction that he has settled his affairs." "Evidence tending to prove a contrary intention was admissible. For this purpose, the ordinary channels of information may be resorted to. The declaration of the testator are cogent evidence of his intentions. The repeated declarations of the testator, down to within a very few days of his death, were abundant evidence that the testator did not intend to cancel or destroy his will." Byles, J., says: "I see no reason why the declarations of the testator should not be admitted as part of his conduct to show his intentions as to the disposition of his property." Keating, J., says the rule admitting dec larations is "well established." See also Sugden v. St. Leonards, 34 L. T. (N. S.) 372. I have now quoted authorities in seven States, the Supreme Court of the United States, and the courts of England, all in favor of admitting declarations of the testator to rebut the presumption of revocation. The rule is so strongly fortified by the opinion of the ablest American and English courts, that its position must be deemed impregnable. ་་ Admitting that the will is genuine, and was duly executed, and was legally in existence at the death of the testator, it cannot be established as a lost will unless "its provisions are clearly and distinctly proved by at least two credible witnesses; a correct copy or draft being equivalent to one witness." Code, § 1865. The Court of Appeals held in Harris v. Harris, 26 N. Y. 433, that the statutory provision, requiring two witnesses to establish a lost will, only relates to a special proceeding instituted for the express purpose of establishing the will, aud that it does not abolish the common-law rule of evidence which allowed the proof of a lost will, in the same manner as that of a deed, by a single credible witness. Accordingly where in an action of partition, the plaintiffs established their title by sufficient common-law evidence of the existence and fraudulent destruction of a will, held, that they they were not concluded by the dismissal of a suit in which they had sought to obtain the probate and record of the will under the statute. A "credible" witness is one who being competent to give evidence, is worthy of belief. 1 Bouvier Law Dict. 409, and it is added in a note that in deciding upon the credibility of a witness, it is always pertinent to consider whether he is capable of knowing thoroughly the thing about which he testifies; whether he was actually present at the transaction, whether he paid sufficient attention to qualify himself to be a reporter of it; and whether he honestly relates the affair fully as he knows it, without any purpose or desire to deceive, or to suppress or add to the truth. The Code does not make it necessary that the witnesses who testify to the contents of the will should have read it. Nor does it prescribe how they shall acquire their knowledge of its contents. In some cases the declarations of the testator would be the best evidence, because the witness might not understand the terms which are used in a will. The Legislature evidently felt the difficulty of establishing the contents of lost wills, and so provided for the use, as evidence, of a copy of the will. The relief afforded by this liberal provision is often inadequate, for it very rarely occurs that a copy of a will is preserved. Wills are usually made in secret, and kept in a secret place. The witnesses who attest the will do not usually read it or know its contents. Generally the only persons who know the contents of a will are the testator and the draftsman, and it is not often that the latter person, especially if he is a lawyer and accustomed to draw wills frequently, remembers the contents. Then if there is no copy of the will, and no one has read or can remember its contents, how can its contents be proved? Unquestionably, the only way left is by the declarations of the testator as to its contents. Who can know, or who can be expected to remember, the contents of a will so well as the testator himself? It is his act; it disposes of his property; it is the subject of reflection and careful consideration before it is drawn, and he often thinks of it afterward. What better evidence can there be, in the absence of a copy of the instrument itself, than the declarations of the person whose property is to be disposed of by it? Can the testimony of two witnesses who have read the will be any stronger or more convincing than that of two persons who have heard the testator state its contents? They would be more likely to remember what the testator said than what they read. Conversation usually makes a stronger impression on the mind than reading, and the testimony of persons who have talked with the testator would probably be clearer and stronger than that of persons who had simply read the will, without discussing its contents. The courts have felt the difficulties of the situation, and have therefore in many cases admitted the declarations of the testator to aid in establishing the contents of the lost will. I have found no New York decision in which the question of the admissibility of these declarations is raised or discussed. In Knapp v. Knapp, 10 N. Y. 276, evidence of such declarations was admitted without objection. So far as this case can be regarded as an authority, it is in favor of admitting this class of declaratious. It is held in Connecticut that the contents of a lost will may be proved by parol. Matter of Johnson's Will, 40 Conn. 587. In Pennsylvania the declarations of the testator as to the contents of his will are admitted in evidence. Jones v. Murphy, 8 W. & S. 275. So in Massachusetts, Davis v. Sigourney, 8 Metc. 487, followed in 120 Mass. 277. So in South Carolina contents may be proved by parol. Legare v. Ashe, 1 Bay. 464. So in Missouri, Dickey v. Malechi, 6 Mo. 177. So in the United States Supreme Court Gaines v. New Orleans, 6 Wall. 642. So in England see the leading case of Sugden v. St. Leonards, 34 L. T. (N. S.) 372, also in full, Law Rep. Prob. Div. 1875-6, 154, cited in 2 Greenl. Ev., § 688 a, note 3. In this case the testator had executed a will with several (7) codicils. These papers were locked up by him in a box which was kept in his daughter's room, he retaining the key. After his death the will was not found in the box, but several codicils were found there. His daughter, who had acted as his amanuensis, and who had been in his confidence in his business transactions, and who had read the will several times, wrote out the contents of the will from memory, and without consulting any documents, and the correctness of her memory was attested by the codicils and other papers in the handwriting of the deceased found in the box. There was evidence that the testator had made declarations of his testamentary intentions within a few months of his death, which were in accordance with the alleged contents of the will, and that he enjoyed all his mental faculties until his death. The writing made by the daughter was admitted as the will of the deceased. There was also evidence of declarations made by the testator as to the contents of his will, made after the will was executed, and at various times and to different persons, up to the time of his death. The following propositions, among others, were decided: 1. The contents of a lost will, like that of any other lost instrument, may be proved by secondary evidence. 2. Declarations witten or oral made by a testator, both before and after the execution of his will, are in the event of its loss admissible as secondary evidence of its contents. On the subject of the admissibility of the declarations of testator, Lord Chief Justice Cockburn, in his opinion, says (p. 224 et seq.): "The question is whether the declarations of the testator can be received as secondary evidence of the contents of the lost will. No doubt, generally speaking, where secondary evidence is admissible, if oral, it must be given on oath, if documentary, it must be verified on oath; nevertheless the declarations of deceased persons are in several instances admitted as exceptions to the general rule, where such persons have had peculiar means of knowledge, and may be supposed to be without motive to speak otherwise than according to the truth. It is obvious that a man who has made his will stands pre-eminently in that position. He must be taken to know the contents of the instrument he has executed. If he speaks of its provisions, he can have no motive in misrepresenting them, except in the rare instances in which a testator may have the intention of misleading by his statements respecting his will. Generally speaking, statements of this kind are honestly made, and this class of evidence may be put on the same footing as declarations of members of a family in matters of pedigree." "It is upon this principle, I presume, that the declarations of a deceased testator have in more than one instance been admitted in evidence. Thus they have been admitted as in Doe v. Palmer, 16 Q. B. 747, to negative the presumption arising from interlineations having been made subsequently to the execution of the will. In like manner the declarations of a testator have been admitted to show the continuing existence of the will at the time they were made, and so to rebut the presumption of the will having been destroyed animo revocandi." "The question before us is whether the statements made by a testator as to the provisions of his will can be received as evidence of the contents of a will known to have existed, but which at his death is no longer forthcoming. That morally such statements and declarations are entitled, where no doubt exists of their sincerity, to the greatest weight, cannot be denied, and I am at a loss to see why, when such evidence is held to be admissible for the two purposes just referred to, it should not be equally receivable as proving the contents of the will. If the exception to the general rule of law which excludes hearsay evidence is admitted on account of the exceptional position of a testator, for one purpose, why should it not be for another, where there is an equal degree of knowledge, and an equal absence of motive to speak untruly?" "I entertain no doubt that prior instructions, or a draft authenticated by the testator, or verbal declarations of what he was about to do, though of course not conclusive evidence, are yet legally admissible as secondary evidence of the contents of a lost will." "The question here is simply one as to the admissibility of secondary evidence, and has to be determined by the rules of evidence alone. I am decidedly of the opinion that all statements or declarations, written or oral, made by a testator prior to the execution of his will, are admissible as evidence of its contents." "There can be no difference in principle as to the admissibility of declarations made subsequently to the execution of the will. The position of the testator is the same, as respects both peculiar knowledge and motive for speaking the truth. In the case of its loss, his statements afford morally the best evidence of its coutents. Yet we are asked to exclude their operation as showing the contents, though it is acknowledged that such evidence is available to rebut the presumption of revocation and to establish what is called adherence to the will. The adoption of such a rule would moreover lead to a very strange anomaly. The great majority of statements made by a testator for the purpose of proving adherence are in fact statements as to the contents of the will. But such statements of the contents of the will, assumed to be truthful, having been admitted and acted upon for the purpose of showing that so far as the testator was concerned the will was still alive, how is it possible to shut out the evidence where the contents come directly in question? It appears to me, that if as an exception to the general rule, the evidence is admissible for one purpose, it must be equally so for the other. How can we use evidence of the contents of a will for an ulterior purpose, and shut out the same evidence when the contents of the will are themselves immediately in question?" "I am therefore of the opinion that the various statements of Lord St. Leonards, whether before or after the execution of his will, are admissible to prove its contents." In Morris v. Swaney, 7 Heisk. (Tenn.) 591 (1872), a lost will was established upon secondary evidence alone. The will was alleged to have been made in 1845. Both the alleged subscribing witnesses were dead. No copy of the will was produced. No witness was sworn who ever read the will. The proof of the contents of the will rested alone upon the testimony of witnesses who repeated its contents from having heard it read by others, the witnesses themselves being illiterate. This proof was corroborated by the declarations of the testator and other circumstances. The chancellor The admissibility of this class of declarations must Also held, that knowledge of the removal by the company was Tarsney & Meadock, for plaintiff and appellant. COOLEY, C. J. Defendant in January, 1883, issued to plaintiff a policy whereby he was insured to the amount of $2,000 on his household goods, furniture, clothing, etc., "all contained in his two-story frame dwelling-house and additions, occupied as a residence," in Saginaw city, and to the further amount of $300 on his horse, buggies, hay, etc., and barn tools. A fire occurred November 13, 1883, which so far in In proving the contents of a will, the gradations in jured the house so as to render it uninhabitable. At the evidence may be stated as follows: 1. The best evidence is the original will itself. 2. In case of its loss, an authenticated copy is the best 3. Witnesses may have read the original. 5. The testator may have made declarations as to its Either of these methods is competent, according to circumstances, to establish the contents of a will. The provisions of the Code (see 1865), which require To warrant giving parol evidence of a will not shown the time of this fire much of the household goods covered by the policy was removed to the barn and stored there. The parties adjusted the loss by this fire, and no question now arises upon it. December 6, 1883, the barn was burned, and with it the household goods stored in it. Defendant adjusted and paid the loss by this fire so far as concerned the property commonly kept in a barn, but refused to pay any loss on household goods. For that loss this suit is instituted. The Circuit judge held there could be no recovery, and defendant had judgment. It is claimed for the plaintiff that the barn in this case may be considered a part of the dwelling-house, it being within the curtilage. But there is no ground for this claim. This is a case of contract, and the question is what contract the parties have made. For some purposes the law regards a barn within the curtilage as part of the dwelling-house; but it is not popularly so regarded, and it must be very rare indeed that in a contract it is treated as such. It certainly was not so treated in this case. There were two classes of insured property; and the class to which the goods in question belonged was insured as situated in a described building, which the policy designates as the dwelling-house; and the description makes it very clear that no other building was understood to be included. The parties certainly did not understand that in insuring the household goods, etc., in the dwellinghouse, and also horse, buggies, etc., and barn tools, that the horse, buggies and barn tools were in the dwelling-house. But one of the conditions of the policy would make the meaning very plain if it could otherwise have been considered in doubt. The assured is required to "state on oath in his proofs of loss, that all the merchandise and personal property for which claim is made was at the time of the fire contained in the building on premises described in said policy." It was plainly impossible for this plaintiff to state in his proofs of loss that the property for the burning of which he now claims was in "his two-story frame dwelling-house and additions, occupied as a resi dence," for it was in a very different building. A further claim is that defendant, knowing that these goods were stored in the barn, and not making any objection thereto, or cancelling the policy on that account, has waived the right to take the objection KNOWLEDGE when the loss has occurred. But this is not a case of MICHIGAN SUPREME COURT, NOVEMBER, 1884. ENGLISH V. FRANKLIN FIRE INS. Co. A fire policy insured household goods, furniture, clothing, etc., "all contained in his two-story frame dwelling-house, etc.," and also in another clause his horse, buggies, hay, etc. Much of the household goods was afterward removed to the barn and stored there at the time of the fire on account of a previous fire which rendered the house uninhabitable. Held, that the policy did not cover the household furniture while in the barn. objection and not a question of waiver. The question is, for what loss this defendant has undertaken to be responsible. Now we find the contract to be that defendant will be responsible for the loss by fire of these goods while they remain in the dwellinghouse, but not when out of it. But the defendant could not insist that the goods should remain in the dwelling-house. Plaintiff might remove them at will and for any reason that might incline him to do so; and this being his undoubted right, there would be nothing for defendant to waive in respect to it. Waiver implies a right to object to what is being done, but there was no such right here. The defendant merely |