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The Subscriber has published the following decision of the Supreme Court of Nova Scotia, in the case of Campbell & Co., vs. The jEtna Insurance Company, of Hartford, Connecticut, on account of its settling a question of great importance to Fire Insurance Comp?,Ei|es, and on which there had been many conflicting opinions. Archibald Scott, T, ^, „ Agent for the ^Etna Insurance Company. Halifax, Nova Scotia, 31 St May, 1860. * ^ This was an action on a policy of insurance 'entered into by Cunard and Company on behalf of the plaintifis in the iEtna Fire Insurance Company of Hartford, Connecticut, on buildings and goods tkereua, situate at Baddeck, in the County of Victoria and Island of Cape Breton. The amount sought to be recovered from the defendants by the plaintiffi, as mentioned in their declaration, was £1000. The pleas 1)f the defendants opened thu grounds of their defence, and were in substance as follows : 1. That the stock of merchandize mentioned by the plaintiffs as covered by the policy of insurance, and supposed to have been consumed by fire, were not in the building at the time it was destroyed. 2. That the plaintiflfe after effecting the said policy of insurance, and while it was in force, made another insurance on the same property in the office of the Liverpool and London Fire and liife Insurance Company, but gave no notice of it to the defendants, nor had it endorsed upon their policy, or others- wise acknowledged by the defend»ntsi.in writing, in accordance with the pro- visions of the said policy ; and in consequence the policy became void. 3. That no suit was broi^ht by the plaintiffe for the recovery of th» amount claimed under the said policy within twelve months after the loss took place, as requured by the seventeenth condition endorsed on the policy. the plaintiffs, which in sulstanco hv th. '' r^X^^'f '"^ °" ''"' ^l^'"" ^'''' ""^'^ «ft«r t1.e loss hy fi,.e by the payment of the ^remmms by Ih^. agents-bf thfi lUaintifi;.. who wero ntor^ted there.u as ..mors of the plaintiffs, an^l that Ihe polio^aken o t agent of that company m ignorance of that fact, or that there existed any insurance by the defendants of tl.e said property, and in good faith. That no not.ce was or cou d be given to the «aid con.pany of the insurance efFeoted and ex,stmg by the defendants, as by the policy of that co„,pany so obtained was required to make it effectual, and no claim was made on that company after knowledge of insu. nee effected with the defendants, nor was any insui^- ance ever matured or effectually made with the said company 2. That the policy mentioned by the defendants in this plea was ordered l?y one of the plamtiff:s in ignorance of the existence of the insurance by the defendants, m good foith, and that such policy was never perfected or made availaWe, nor any clahn set up thereon after knowledge of the insurance by the defendants And, further, that no insurance on the same property was niade by the plamtiffs in the company mentioned in the defendants' plea con- trary to the provisions of the policy declared on in the wrii; 3. That the plaintiffs, after the loss, made a claim upon the defendants without any delay for the amount sought to be recovered in the action Th-it a negotiation for the adjustment of the claim was thereupon commenced be- tween the defeiKlants by their agents and solicitor and the solicitor of the plamtiffls and the,r agents, and was still open and undetermined when the period of twelve months after the loss expired, and that the plaintiffs' claim on the defendants was never abandoned or withdrawn or intended to be .0 and after the loss twelve months elapsed before the suit was commenced in consequence of the said negotiation, and not of any intention to abandon or withdraw the claim on the part of the plaintiffs or their agents. Tlie ca^use was tried at the sittings of the Supreme Court, at Halifax, be- fore His Honor Mr Justice Wilkins and a petit jury, on the IGth November, ISoJ. The counsel on the part of the plaintiffs were the Hon. J W John- ston, Attorney General, and J. W. Ritchie, Esq., and on the part 'of the dotendants the Hon. Wm. Young, William Sutherland, and S. L Shannon Jiisquires. ' The facts of the case are so fully stated in the decision of Mr. Justice Bliss that It is unnecessary to enter into any detail in this pi -e. At the close of ^G evidence on the part of the plaintiffi, the defendant, counsel, :Hon Wm Young, ,„oved for a nonsuit on the ground of a double insurance', and that the action wa* not brought m time, aa set out in the defendants' pleas The I il learned Judge deilined to nonsuit, and in his charj^e to the jury put the case most f;iv(>ral)Iy to tlio plaintifFs, relying upon the case of Jackson, et al, v. The Massachusetts Fire Insurance Company, (23 Pickering, 418,) as in point and as njuldinnr him in iiis view. The jury returned a verdict in favor of phiintiffs for the sum of <£S77. A rule nisi to set aside the verdict was obtained on the hist day of the sit- tings, which was argued at the Ensuing term of the Court ))j'.'' re Judges Bliss, T)odd, Desl)arres, and Wilkins, by the Hon. J. W. Johnston and J. W. llitchie, Esq., on the part of the plaintiffs, and the Hon. Wm. Young and Wm. Sutherland, £?([., on the part of the defendants. On the 20th day of Aprd, 1860, the Court gave their decision in favor of the defendants by making the rule jiisi for a new trial absolute. The points of the case were elaborately discussed by Mr. Justice Bliss and Mr. Justice Wilkins whose decisions are as follows : 1- Bliss, J. This was an action on a policy of insurance against fire made with the defendants by S. Cunard & Co. on buildings and goods, thcj properly of the plaintiffs in whom the declaration averred the interest to be. The policy contained among other things tins proviso : " that if the assured or their assigns should hereafter make any other insurance on the same pro- perty, and should not, with all reasonable diligence, give notice thereof to this company, and have the same endorsed on this instrument, or otherwise acknowledged by them m writing, this policy shall cease and be of no further effect." The defendants pleaded that after making the policy the plaintiffs made another insurance on the same property in the Liverpool and London Insurauce Company, and did not give notice thereof to defendants nor have the same endorsed on the defendants' policy, or acknowledged by the defend- ants in writing. The defendants at the trial moved for a nonsuit upon this point being established in proof, but the learned Judge declined to nonsuit, and in his direction to the jury told them that there had not been any such double insurance as made the first policy void. The same objection was raised in the argument of this ease before the Court. The facts of the case are briefly as follows : Cunard & Co., to whom the plaintiffs were indebted jtisured the property in question in 1854 in the defendants' office, and continued the same insurance, though not for the same amount, down to the year 1857, charging always the premium of insurance to the plaintiflffi. On the 2nd December, 1857, they renewed the policy for £1000 from that date to the 2nd June, 1858, and charged the premium as heretofore to the plaintiffs. The plaintiffs not having received from Cunard and Co. any account of such charge, and being, as they say, wholly ignorant of such insurance, applied to the agent of the Liverpool and London Insurance ^l*'| ..iAtf, -i f Company here, «,d on th» 18th January 1858 ,«• , , . , "uumnce on tho ™,e property forilonn f ' ''■""' '''"' "'" '"'■" «■' on the ,amo. The lal Lit aLfcl, • r' ^T """ ■»'''' "'» P-™"'". the company ,h,il gi,„ notice of '„!?,!" ""™ ""'""■■'' P'^^'^y ^Mi »h»n anc^ard, bo „„de cl 1? „ I™"™'" »l«.ly „„K,e or which randun, of ,„eh other in<,u,a„„rm dc " , '""'"'"•^' ™ "■"' " '"O"."- with Un» co™pany.-o.ho™ir:„rh ;r/ ''71''°™,' "" "" ""'"^^ ^f»'«' 'h»t on such notice hein. «iv n Tl „nv ^ « T"^ ' '"»"■''"''• '"'"vor. ^I'-il I.C optional „i.H thc^:!; „y .„T '."^fX '"," «- "' "- ^"cy, it ■Oium for the unexpired Sorm thereof ifT„ ,, '^ 1°^' """""'S "'O Pre- No notice of the'pohcy with the Knlr"^ " ''"""■ "'• P«l and London Co npa^yffl after tt T^ "'" «'™ '° ">« ^ivor- May, 1858, when the propel t lie r" ^ '"'' ^'"'^ "" *» ^5* next day n.,ic„ waa given by fhe „hS ! T *°^"'' ''^ «'^- 0» *o I-ondon Ccnpany of the losT and ,t I ''" "^'"" "^ "'" I^i™Tool and Co. who were then infer neZfi'" """ t™ '° "" "'^"'^ •^"""<' "'1 And the proof, of the ,orwe« tZ72T '"'°'"' "'"' ""= '"»' ™"P-y- ?o... and London Company. We f f of ™° T"'^' ""' '" ">» ^i'- the fir»t tiu,e, made known to tiT^l j '™"'' '""'"•»"'"' ™ "-en, for 'earned of .he insurance Tade y C^lt Co f '"t,'"'""*' '~' ''^ «-' . nd iher..upo„ abandoned the claim whtlT.KuT "" '" ""' ^'"^ °«oo, I--K.0I n„d London Company ™d the i^ ""* '" "'° '"" "" *' .ho present action wa. subscVentty brlu* "™""^ "^ "'*™ "P"" *- t).o '— *::e7byt^^^^^^ ■•» *e case is. whethe, Pany by the policy of the IStlV,™ 1 fs 8^ ^""r? ""' ''™''»«" °™- 1" the defendants until after the loss 1„',1 f ,, " "t "° "°'™ "» »™" tl.o condition which ..quired that "otic! "T"° ''"^' "^ " ""^'"^ -( of the first policy was ie„Jtheh?c "' '''"^"'■"\ -«™™eh as no notice fto plaintiffs can he .4] ," t"e mad ^f"^' ■' *"' ^""'^ *° »1--'I. necessary under the eonditL, „^h7« I fJ ITT ™'* ^^^^^ '' the defendants. "otendants pohey to give notice of it to poS:t'ei;:tmrB:;h4"crT ^r'^"-^-- ^n English ttat any such cist, on which tjl? 'I ^T °"'^- ''•" ""■ ^ "^o «en,s to have first spru, /„„ on n!r '"T" '"^ '"''™- "^^ »»««»« UnitoaSta.es; and the efiJctoHt m^r. ,'""""" "«""* "'^ '» *'«' the present case, has been in e™"nl r™""*"™" '^ """^ " the Courts of that country uT^^T, t "''^"' °' '^™-- » » .nay at aU times gladlyla. ou^Trett " ^ ^j^^^ I rnsm^m^**^-^ ^-^mm-i^mammmr.^ f-M .■<»>«a*ssi^-w*T.i' ^araw pre- tu asaist our own, knowing the very high character for professional learning and eminent abilities which the Judges of those Courts deservedly bear. In no case could we with more propriety resort to them th^n the present, for the policy on which this question arises is made with a company incorporated and having its local existence in that country. The question identical in all respects with that now under our consideration, and arising out of circumstances precisely the same, appears first to have come before the Supreme Court of Massachusetts in Jackson v. the Massachusetts Mutual Fire Insurance Company, in 23 Pick. 418, and was there disposed of very briefly in the judgment of Dewy, C. J. He says that an insurance which shall operate to avoid the policy of the defendants as a violation of its rule, must be a valid and legal policy, and effectual and binding upon the as- surers : here it was wholly nugatory, and of no effect, because notice of the first was not given to the last office. Stacey v. Franklin Fire Insurance Company, 2 Watts. & Sergt. 507, ap- pears to be a similar decision to that first cited, but I have not been fortunate enough to see the case itself. The same question — the same at least as I take it in principle — came before the Supreme Court of the United States in Carpenter v. the Providence Washington Insurance Company, 16 Peters, 495, and reported also in 14 Curtis, 380. The policy on which the action was brought contained the veiy same con- dition respecting notice to be given of any prior or subsequent insurance as that in the ^tna Company's policy. Before the policy in that case had been effected, there had been a prior one made with the American Insurance Com- pany, which was again renewed after that effected with the Providence Wash- ington Company ; but neither the prior policy, nor its renewal, were commu- nicated to the latter office until after the loss. An action had been brought on the renewed policy against the American Insurance Company, which was successfully resisted on the ground that there was a material misrepresentation of the cost and value of the property insured. Upon the trial of the action against the Providence Washington Company, the want of notice of the other policy was set up as a defence. It was, however, contended on tl.3 part of the plaintiff* that though that policy was good on the face of it, yet if it was procured by such a material misrepresentation as that above mentioned, it was to be deemed utterly null and void, and therefore that no notice of it need be given. The Court at the trial refused to instruct the jury so, but on the con- trary instructed them that if the policy was at the time it was made treated by all the parties thereto as a subsisting and valid policy, and had never in fpxjt been avoided, but was still held by the assured as valid, then notice of it ought to have been given to the defendants, and if not, the palicy declared on was void. The instructions were reviewed and confirmed in the judgment of WMpip m^t ifetoi. the Supi-eiue Court of tli.; Uiiito»J Sit»t. i • . Hicy procural „y n.™pL-,.„,a,i„^ w , ' ;™ P-My give,,, n. ly voidaWe. ™l till „v„iL ,,„ ,1, " „T " , '"""-'^ '■""' '"' '■"'■"■". l™t m,™- question, l,e c,,n,i„„e,, .• i, 1 ,1^' j" "" " ""'"'"'"" l"'"'-^" '""• parties, i.„t ,,„„ , ,„,;^„„ „:i t; L,:r.;:L"™ ;■" '"■""' ''^ "'^ reascaWe doubt that notice of „ voidnl,l7n„l- ''I """■"' '''■'•■•' ''■""' "I' "iter,, wlti„-n the word, and ,„ea ,1,,! .f ,'^ T' ""' "''"" '° "'" ""'I"- aoed we are „„t prepared to ^o2^ 'Zn" T '", "'" ""'"^- " '"■ and have held that a poliev existi ! ,„rt i^ '"" " '"" ^""'' f-"'"" «'«'«. utte,-ly void „p„„ ta very faee 1 T, ",t ' 'i- " ' "' ""■ """"™'' «■>'' ""' .ffor,Ied l,y such ex.,i„«ie fact, it , i 1 I n ■"■ "'""' "'""»'' ''•'• 'f». tion a nullity. He then e.xnl .i',, \ f u " '""'' '" "» '■-"> »'%'" "-"f ince,,. »'il-..la.i„„that„o,ice,of oh . ,!° r''T;T" ".' '^ *" "''>«"•"- "n.lcrwrite,.., ,ui,,ht ,« „,,,„ .o j t ,1 ,; 'l ' '"■ f™' """-'y ^ *". .ho at what premiun,, and whether the™ J ""y^Hht to ,„,„, „, „„ „„,, the in.„.ed i„ the p.cmiJrwil 1 .'r"'''°;'-'''"'' ™''"'""'"'' ■•""■«' "^ »trc„uo.,. exenion [o pre,erve tT p" I™ 'I" F^' ''"''""• """' """^ rateable pr„,.,r,i„„ which Aey won d have' ,ol ^^ "'"^ "''*' ''""" "'« thinks if thee elau», are constn^ed' tl 1 '" ""^ ''^ '"''■ ^uJ he will have the effect of diJcZ^ t^e I'btr '"'' ""''"'™« >*"-^' '' *aining their "peration, to c^fwht^r t"™' "■■ """'' ''«™'' "■• °f ™- ally known to the underwriter uZ T "' ™' ''™''*' "-^ ?»'»»- as they .ay, we .e no^rwh, ITse cir ' " '" '!"'' ~"^'^™«- stipulation., of the Hicy, they oul „„7 ! "^ " ''"'"™ P« »f the terpretationaccordirg J heifteZ'dl'""' •"'■''" ""'' ™^™»'"^ i"" " we are of opinion That the,^ i ™ e^t t'Z 'y;"" ^"^ "« -"d- tra,7. there is strong ground to ZLT!^ ! '"''™'""'»»- On the con- any prior or subsequerHtie^ w" e d" ■ , " ""■'"''^'™» -» '» »°«- «' then e.is«ng ;„ pit of a f wiZt anT !" ''''' " "" """^ »' ?"''«» and effect, or whither they „il be ™n '"'""?, "I'" '^"^ "iffnal validity bability to discern any e»„M di., ! Z ™^"''''- ^"' ^ """^^ 4 which wo an, called on rdecide ™"°" ''*^^" *'» °"^ -<< *»* upon The whole of these remarks of Mr i .• d aa to the ether. Mi«.p:3»«L";h^;t7 7' '""'^ ^^""^'^ ^ "■« °- •n. The Tl,i. I Mr. Justice Story seems purposely to go beyond the ^iarticukr case then be- tbro hiiij, and to extend to and include all caxes whoro the policy was not void upon its fc;;e, but wa« liable to be made so by extrinsic circumstuuoes. And indeed the decision, if there was tio sUeh general language to make it appli- cable to ail SOS that came within that principle, would necessarily extend to them, for that is the very ground on which the decision rests. It is very clear then to nio that this case distinctly overrules Jackson v. the IVIassachusetts Mutual Firo Tnsurunco Cojupany, 23 Pick. 418, and being the judgment of the highest Court in the United States, we must take it to hav ■ settled the (question. It is tnie that j\Ir. Justice Story does not expressly, in so many wonls, overrule the ease in 23 Pick., which I take him to refer to ; and ho does certainly intimate that the eircumstaucesj in that were distinguishable from those of the case whicii ho was then deciding. But one cannot read his re- marks without perceiving that his decision does overrule the other, and that ho was conscious that it did so, for in conclusion he says, "if the result to which we have anived differs from that of those learned State Courts, we may regret it, but it cannot be permitted to alter our judgment." There is another case from the Supreme Coui-t of New York, to which we were referred at the argumeni — thct of Bigler v. the New York Central In- surance Company, 20 Barbour, 035. There the same state of circumstances existed as in the case before this Couit, and the same question arose upon them as here. Subsequent to the policy with the defendants, the plaintiff effected a policy with the Globe Com- pany, but gave no notice to them of the policy with the defendants ; nor did he give notice to the defendaiits of the Globe policy. Mason, J., by whom the opinion of the Court was delivered, says : " The clauses in the pohcy of the Globe Company (requiring notice) reheved that company from liability on theu" contract of insurance (as notice of the prior policy had not been given to them), no action could be maintpined on it, if they saw fit to set up the defei;ce." The Globe policy was not void upon its face, but as soon as the fact was alleged and provon it relieved that company from any liability upon their contract. The real question therefore presented for oar adjudication, is whether this pohcy in the Globe Company can be set up by the defendants to avoid their contract of insurance with the plaiatiiFs ; in other words, whether an insurance that shall operate to avoid the defendant's policy under the clause (requiring notice of any subsequent insurance), must not be a valid policy — one that is binding on the insurers. He then refers to the case of Carpenter V. the Providence Washington Insurance Company, 16 Peters, which I have so fully stated, aud says it determines the question in favor of the defendants. That cose holds, that under suoh % condition notice of subsequent void or voidable policies must be given to the underwriters, uni«8s the policy is void 8 upon ItBface, without any referenoe wliateve- to oxtrinMit f'uctii. .Mr. ./i:»- tioc Muson therefore irc:ita that case a» eHtablishing a prinr'nle which decide* any ccse that comes withiii it, an I h ive already said it iiiu«t do, and not aa being .:onfined to the circumatanceK of tlie caae itself. It settles, ho thinks, the very identical point befjro us, ad It appeartj also to me to do. Mr. J is- tiee Mason tLon goes on to state that the Globe policy was not either void or voidable on its face, it was merely voidable by the underwriters upon duo proof of the factn. The plaintiff, he says, held on to that policy until after the destruction of the property insured, and brought an aetiou upon the pol- icy against the Globe Company, thereby affirming the validity of the policj which that company settled by giving their not^s. The plainiiff having effected this po'icy in the Globe Company, and held it as valid, deriving all the benefit of an insurance contract from it, were bound to give notice to the defendant under the clause of their f ;licy, althourrh the policy was voidable if the '.e Company saw fit to set up the dofencer The case falls within tlio very 7i\.:aB and meaning of iho stipulation ia the defend- ants' policy. He adds : " i am aware that the case of Jackson v. the Mas- sachusetts Mutual Fire Ir "-irance Company, 23 Pick. 418, and btacey v. the Franklin Fire Insurance Co-^ipany, 2 Vv atts. and Serg. 544, h'>\ a d-fforent doctrine, but these cases, so far as they conflict with the views «•"!..' expressed, are not to be followed." Now this caso.is in every resfo*, ou all fours with that before us, even to the circumstance of the plaintiff having treated the subsequent policy as valid by calling upon the company for payment under it, after the loss had taken place, though I do not myself consider that a circum- stance of very great moment, further than as c-aclusively showing that the subsequent po'icy was meant and was treated as a valid subsisting policy. The question, therefore, which hag arisen in the preser^t caL . I must consider under these late decisions, and especially under the more authoritative one in tho Supreme Court of the United States, to have been fully settled in that country But without referring to any of these case?, and looking to this question as a new one in which these lights were watting to guide us, I confess that I should arrive at the same conclusion. This clause in the policy, as well t.; the whole instrument, 1° to be construed according to the pLin ordinary mean- ing of the language in which it is oxpressed. We arc not to go out of its ordinary meaning to find "jiother of a more enlarged or more restricted nature, unless we can clearly gather from the mstruraent itself that such was the in- tention of the parties thereto. It seems both the simplest and the safest course to give them the credit of meaning just what they say; no doubt there are exceptions, which require us to depart, from a literal Meaning, but this can only be dene when wc are satisfied that the words themselves do cot express i hS *"•%■ thoir insnii'ng. Now, tukiii^ tlio wordrt of tlio (;onking subsequently a valid insurauee — that wouUl sub- ject them, it might be, to an intricate ([uestion of both law and fact. They Huy simply tlu't he shall not make such insurance, resting the fulfilment or breach of the condition on the fact alone. And 1 cannot see the ground that would authorise us to introduce another word which would qualify their lan- guage, or give a different meaning to this condition. When tho plaintiffs entered into tho subsequent policy with the Liverpool and London Company they meant to effect a valid and binding one — they thought they had done so ; it was on iis face a good and valid "One, and was held and acted upon by the plaintiffs as valid in all respect for, after the loss, they called ujwn that com- pany to pay the amount insured by it. If the policy n>ade with tho ^tna Company had not then been made known to or discovered by the Liverpool and London Company, the latter would in all probability have paid the loss, tis the iEtna might have paid it, if ii,he other insurance had not then been made known to them. Surely, under tliese circumstances, this was an insurance made by the plaintiffs within ';he condition of their policy with the defendants, within, not merely the letter, but the very spirit and intention of it, and which ought to have been communicated to those underwriters. If the object and intention of tlio condition was, as the high authorities of the Court of the United States which I have '-eferred to inform us, to check tvei -insurances, so that the assured should retain himself nii interest in the propeity, whi. . would excite him to cai-e ard vigilance In the preservation of it — and T will add, would remove the temptation to destroy which may arise where inKuranccs havo been effected beyond its value — then the application of the condition to such a case as the present if; clear. For the effect would be the same, whe- ther the assured had entered into a second which could not h-^ avoided, or into on? which he meant and believed to be valid. It is tnie that in this case the pluniii& may not have Itnown of the flrst policy, and might not therefore In- 2 im^M i wimw 10 ' j3^ I f' tend to nisure the property tv/ice, but the condition harein cannot be contra- verted by such an accidental circumstance as that ; its meaning and intention must be just what it would be in the ordinary cases of insurance ; and as in those it would be necessary to communicate a subsequent insurance like the present, so the plaintiffs, under the condition, were bound to do it. By the printed conditions annexed to the policy the ^^tna Company resented to itself the right to cancel the policy in ease any subsequent piliey should be made, which, with their own, would, in their opinion, amount to an over-insurance — in which case they were to pay back the premium for the unexpired time. When the plaintiffs effected the subhoquent insurance this contingency hap- pened, a,nd whether the latter insurance were a valid policy or not the defend- ants ought to have been made acquainted with it. Tlie very fact f such another insurance having been made, might, not improbably, induce them to exercise this right, even if they had known that the subsequent policy which was made was voidable, and therefore it was incumbent on the plaintiffs to communicate the fact. The condition then in its terms and meaning ap- pears to me free from doubt ; and as there has been a breach ef this con- dition, the plaintiffs cannot recover under the policy. There was another ob- jection taken by the defendants to which I may briefly advert, though after the opinion which I have expressed on the first point this is now of the less mo- ment. The policy of insurance stipulated by the seventeenth ar+icle of the con- ditions annexed thereto, that no action should be brought thereon unless with- in twelve months after the loss should occur. The defendants by their third plea set out this condition, and then formally pleaded that the action had not been brought within such twelve months. To this the plaintiffs replied, that without any delay after the loss occurred they made their claim under the policy, and that a negotiation for the adjust- ment of it was therefore commenced between the defendants, by their agent, and the plaintiffs, which was still o^m and undetermined when the twelve months expired, and that the said lapse of twelve months arose from this negotiation, and not from any intention of the plaintiffs to abandon their claim. If it were intended, as from the argument I take it to have been, that the question of a waiver by the defendants of this condition by such negotiation was raised by these pleadings, I must say that T cannot accede to that propo- sition. The facts tbjit there was a negotiation, and that from that cause alone the delay of the plaintiffs in not bringing the action within twelve months arose, are put in issue by the replication, an«l the affirmative of these fac*« has been found by the jury, but that is not the point or the gist of the case : it is whether, on their part, the defendants thereby waived their right to iEsist 11 upon this coudit'.on j that is not to be inferred even by the Court upon th» finding of the fact Bet out in the replication, but it was itself a fact — the fact — the unportant one which should have been submitted expressly to the jury, and by them expressly found, before the plaintiffs can avail themselves of it. The finding of the facts, as stated in the replication, by no means necessarily establishes the fact of waiver by the defendants. They may be perfectly true, and yet there may have been nothing like a waiver, and it seems impossible even to say tliat a waiver has been found by the jury ; and to say the least of it, I doubt whetlier, under tlie evidence in this case, a jury could have come to such a conclusion if they would have })een warranted in doing so. But at all events the ^rnivcr, as I have said, was the substantial fact, the facts as proved may or nay not be evidence of it. The replication then seems to be, not an informal one, which would I'e cured by the verdict, for the verdict still leaves that matter doubtful. It must be considered rather as an immaterial issue, in which case a venire de novo would have to be awarded. But as I have said this is a matter of less consequence, a.s upon the first point I am o*' opinion that the plaintiffs cannot maintain an action upon their policy. Judges DoDD and Desbaurks gave their unqualified assent to the decision of Judge Bliss, as recited above. WiLKiNS, J, The main question of law raised in this case was put to the Jury by the Judge who tried the cause favorably to the plaintiffs, expressly on the sanction alone of Jackson et al. v. The Massachusetts Mutual Fire Insurance Company, which was a decision of the Supreme Court of Massa- chusetts, reported in 23d Pickering. It of course could have no authority with us as a judicial precedent, and it has become necessary to test its prin- ciples, the counsel for defendants liaving impugned them, and having also directed our attention to other decisions in che United States Courts, whieh are said to be opposed to this. The policy of these defendants is made not merely voidable but absolutely void, in the proved event of another insurance, not notified to the company and endorsed on the instrament in question. To its particular terms it is not necessary for me to advert, as they have already been noticed. It is proper, however, to observe that the policy does not con- tuin.certain words which, if inserted, would have materially affected the point under consideration. The words are not, " in case the assured shall knowing- ly have already, or shall hereafter knowingly make any other insurance, &c."; nor is the language, '' tiny oihev effective oxvalid insurance," On the contrary by the express words, and I think obvious intent, the mere fact of anoth'jf insurance effected but not notified, and not mentioned in, or endorsed on the policy, renders the msurance, on proo^ of that extraneous 12 il cirfeurastMiice, ipso facto, void. There is no limitation in terms, or by neces- sary intendment, attached to the proviso, and I am not aware of any principle of law which would justify us in implying it. The general rule undoubtedly is> that conditions in written instruments are to be construed strictly. After such notice given as tliis condition requires, it would have been competent to the assurers giving notice to the assured to cancel the policy and refund the premiums. It was in order to enable them to exercise this di.«cretion, in rela- tion to what they might d«em an over-insurance, that this general condition was introduced into all their policies. Here the facts show tliat during the continuance of their risk they had not this privilege. The terms of the con- dition in the report under consideration were, we must assume, purposely made general and unqualified. The assurers obviously intended to protect themselves by a condition of unlimited application, and did not design tliat it should be affected by the circumstances of any particular case. What reason have we to infer that they intended, when they framed the condition, that It should be rendered inoperative in the case of a person insured by them effect- ing insurance in another oflBce, — void by the terms of its policy in conse- quence of another insurance, — that is, void contingently in case of the proved existence of an extrinsic fact, which might or might not become known to that oflSce ? Whether this latter policy would or would not become void in effect, would, manifestly, depend on the contingency whether the fact of an insurance elsewhere should or should not come to the knowledge of the assurers that executed it. If, tc refer to the circumstances of the two insurances before us, the Liverpool and London Company had paid in ignor- ance of this extrinsic fact, or in waiver of it, there would have been in fact a double insurance, and it might be an over-insurance, as regards the defend- ants, and their protecting policy would have been thus contravened. It is obseiTable, in this case there was a period during which loth the assuring companies deemed their risks to exist, and yei neither had knowledge of insurance by the other. We are not at liberty to adjudicate on this case merely in view of the par- ticular facts that the plaintiff when they effected the insurance at the English office were ignorant of the insurance effected by their agent with the defend- c^its. We are required to construe and declare the legal effect of this proviso as our construction may affect any possible case that can arise under it. We have to enquire what the true meaning of it is in point of law, looking at the words and regarding the situation and circumstances of the contracting parties, as well as tb general policy of insurance companies, so far as it may reasonably be supposed to have suggested to this company the particular con- ffition. We must have regard also to the particular policy of these defend- wts BO far as it may be gathered from the language of the instrument before us. I 'I iiiiiiiMiiiiiiwiii#iiiii mm 1:3 by neces- princ'ple [louhtedly y^. After ipetcnt to efuntl the n, in rela- condition iring the [" the con- purposely X) protect ^n til at it lat reason 11, that :t 3m effect- in conse- le proved known to e void in act of an ;e of the the two in ignor- 3n in fact e defend- d. It is assuring Pledge of Viewed in these lights, and the worc^s used, which are unequivocal, being interpreted according to their familiar sense, we are constrained to say that the omission, on the part of the plaintifis, to notify to defendants the insurance effected at the office of the Liverpool iwid London Company, was in contra- vention of the proviso under consideratioa, and that the defendants had, by that proviso, guarded themselves against; liability in the case that has occurred. The Massachusetts decision alone influenced my mind, at the trial, to in- struct the jury as I did. It was not possible for me then to consider it with that careful attention which it has since been my duty to bestow upon it ; but after having deliberately reviewed ii., in connection with the other cases 'cited at the argument, I Lave come to the conclusion that it is unsupported by principle. This I am bound to say, although I have the highest respect for the learning which has ever distinguished the Court that pronounced it,— I think that it, in effect, limited and qualified the proviso in question in that case in a manner, and to an extent, that was never contemplated by the par- ties to the policy. Entertaining these views of the question thus considered, it becomes un- necessary to decide the other points that wore raised at the argument. The rule must, in my opinion, be made absolute. the par- '■ English B defend- s proviso it. , looking ntracting iS it may ular con- 3 defend- efore us. wmm