Opinion by

The city filed its claim on the 16th of April, 1883, and an agreement for an amicable scire facias thereon was entered on the 24th of March, 1886. An affidavit of defence to the claim *392was filed on the 9th of April, 1886, and in September following a plea, a rule to reply, a demurrer and a joinder in demurrer were filed. The demurrer was sustained on the 17th of December, 1890, judgment in favor of the plaintiff was entered the next day and the damages were assessed at 1116.13. A rule to show cause why the judgment should not be stricken from the record was taken on the 24th of October, 1893, and on the 4th of the next succeeding month the judgment was opened by agreement. A case stated embodying the above facts was filed on the 4th of June, 1894, and two days thereafter judgment was entered thereon in favor of the defendant.

The claim in suit is subject to the act of 23d March, 1866, regulating the filing and collection of municipal claims in Philadelphia, which act, in the first section thereof, provides that, before any scire facias shall be issued on any such claim, diligent search shall be made for the owner or reputed owner of the property liened, and that a written or printed notice shall be given to him or her to make payment to the city solicitor within ten days. The obvious purpose of the act, manifested by the preamble to and the provisions of it, was to protect property owners against costs on claims of which they were ignorant,, and to prevent, as far as possible, the sale of their properties without actual notice to them. A written or printed notice served upon the owner or reputed owner whose residence is known is thus made a condition precedent to the issuing of the sci. fa. on the claim. It is not mandatory however in the sense that it cannot be waived by a'party for whose benefit it was enacted. If such a party,having knowledge of the claim, appears at the office of the city solicitor, and announces his intention to contest it and enters into an agreement for an amicable sci. fa. upon it, he thereby confesses the knowledge, and rejects the opportunity for payment that the statutory notice would have given him. There is no object to be accomplished by serving the notice and postponing the issuing of the writ after that.

Because it does not affirmatively appear in the case stated that the notice required by the act had been given, the learned court below inferred that it had’ not been, and accordingly entered a judgment for the defendant. In this, we think, there was error. There is no admission in the case stated that the *393city failed to comply with the provisions of the statute in regard to notice, but it distinctly appears therein that the owner agreed with the city to the issuing of the sci. fa. This agreement, in the absence of fraud or duress, may well be regarded as a waiver of the notice prescribed by the statute, or as an admission that it had been duly given. An owner who voluntarily becomes a party to a suit on the claim and who enters a plea and files an affidavit of defence to it, cannot, after judgment against him on a demurrer filed to them, be heard to allege as ground for setting aside^or opening the judgment that the city failed to give the statutory notice before issuing the sci fa. expressly authorized by his agreement with it. Nor does the opening of the judgment enable him to successfully interpose such a defence. We think therefore that,, upon the facts appearing in the case stated, judgment should have been entered on it for the sum of $116.13 with interest thereon from December 18,1890, with costs. In reaching this conclusion we have not overlooked the entries of April 13, 1888, showing the filing of an affidavit of service of notice and the issuing of another sci. fa. But we do not regard these as admissions that the city failed to give the proper notice before the agreement' for the first sci. fa. was filed. If they could be so regarded they would not constitute an answer to the agreement which, as we have seen; is a waiver of notice.

Judgment reversed and record remitted to the court below with direction to enter judgment in accordance with this opinion.