1805. SALVIN against JAMES. [ 577 ] and in the plaintiffs' tenure; and they were duly interested in the premisses insured. In November, 1803, the defend. ants, gave notice to the plaintiffs that unless they agreed to pay 11. 18s. per cent. upon the said insurance as from the 25th of December, 1805, instead of 11. Is. per cent. which the plaintiffs paid upon the policy in the pleadings mentioned, the defendants would not continue the insurance. To which notice the plaintiffs returned for answer, that they would not give that sum, as they had made their premisses so secure. On the 7th of January, 1804, being within the period of 15 days after the expiration of the policy, the insured premisses were consumed by an accidental fire; and on the 18th of January the plaintiffs gave notice of the loss to the agent of the defendants at Durham, and wrote to the office. a letter, giving them a similar notice; and on the same day tendered to the defendants' agent the premium of 17. 185. per cent, the then rate of insurance used by the said office, for another year, and the duty; but the defendants by their agents, whose acts have been approved and ratified by the office, immediately declared that they did not consider the plaintiffs as insured at the time when the fire happened; whereupon no further steps were taken by the plaintiffs, and no money has been paid. When the loss happened, the plaintiffs had not paid or tendered the premium for another year. The question for the opinion of the Court was, Whether the plaintiffs were entitled to recover? If they were entitled, the verdict to stand; if not, a nonsuit to be entered. The only article of the printed proposals particularly referred to in the argument was the third, as follows: "On bespeaking policies, all persons are to make a deposit for the policy, stamp duty, and mark; and shall pay the premium to the next quarter-day, and from thence for one year more at least; and shall, as long as the managers agree to accept the same, make all future payments annually at the said office within 15 days after the day limited by their respective policies, upon forfeiture of the benefit thereof; and no insurance is to take place till the premium be actually paid by the insured, his, her, or their agent or agents." This case was argued in the course of the term by Richardson for the plaintiffs, and Pitcairn for the defend ants: ants: and the only question was, How far the advertisement. of the fire-office set forth in the case, which it was admitted was intended to obviate the effect of the opinion of the Court delivered in Tarleton v. Stainforth (a) varied this from the former case, supposing such advertisement to have been inserted as a new term in the printed proposals of the office? The material circumstance which differed the two cases, and which was relied on by the counsel for the fireoffice as absolving them from any responsibility, being that the insured having declined paying the advanced premium for the year ensuing, the managers of the fire-office had before the end of the year, and previous to the loss (which took place within 15 days after the termination of the year for which the insurance was made) given notice to the insured that they would not renew the insurance. 1805. SALVIN against JAMES. Lord ELLEN BOROUH, C. J. now delivered judgment. [578] After stating the pleadings: This question arises on the construction of the advertisement published by the Sun-Fire-Office, on the 10th July, 1794; and the point to be decided is, Whether this advertisement be an engagement by the office to indemnify all persons who may insure their property at that office for a year, for the space of 15 days after the determination of the period of their insurance, without any regard to an intention of continuing the insurance? or whether it must not be considered as having relation to the 3d article of their printed proposals, and as being to be construed with reference to that article? The terms of the advertisement being general, have furnished the argument that the right attached as soon as the policy was effected; that no condition being mentioned or referred to in the advertisement, the right does not depend on any thing ex post facto; and that it must be understood, not as an extension of the original policy, nor as an agreement to grant a new policy, which should have relation back to the determination of the old policy, but as an independent and absolute agreement to indemnity for the space of 15 days. And on this supposition the declaration is framed, by which it is alleged, that in consideration the (a) 3 Term Rep. 695, in which case the general question upon the con struction of the common printed proposals was fully argued. 1805. SALVIN against JAMES. [579] plaintiffs would insure for one year, the office undertook that the property of the plaintiffs should be considered as insured for 15 days beyond the time of the expiration of the policy. To this mode of construing the advertisement it has been objected, that all insurances by the office according to the first article of the printed proposals are to be "by poli cies signed and sealed by three or more of the trustees or acting managers, aud that the office rever professed to insure in any other way and in order to give effect to this term or condition on which the office professes to insure, that the Court ought not to construe the advertisement to be an engagement independent of the terms and stipulation contained in and referred to by the policy, if by fair and reasonable construction it may be referred to and connected with the policy. The mode of insuring at this office, both before and since that advetisement, has been the same, namely, by a policy under seal, referring to certain printed proposals; by the 3d article of which it is provided, that all persons bespeaking policies are to make a deposit for the policy, &c. and to pay the premium to the next quarter. day, and for one year more at the least; and shall" as long as the managers agree to accept the same, make all future payments annually at the office, within 15 days after the day limited by their respective policies, upon forfeiture of the benefit thereof;" and that no insurance should take place till the premium was actually paid. On the construction of a similar policy in the case of Tarleton v. Stuinforth, 5 Term Rep. 695, the Court held, That until the premium were paid, persons who had insured were not protected by this article during the 15 days; and that the intention of the parties, as it was to be collected from the policy and article, was, thatthe policy should have no effect until the premium was paid; the object of the provision being to avoid the expence of new stamps, &c. And in the course of the argument the case before us, it has been admitted that the advertisement was published in consequence of that decision, to obviate doubts which had arisen on acccount of it. And it is in effect a declaration by the office, that though the legal construction of the instruments did not bind them to make good losses happening during the 15 days, unless the premium were previously paid, yet that by the proposals they meant, the meant, and their intention always had been and was, to protect the parties during the 15 days, though a loss might happen before the payment of the premium: and if that be so, there can be no question but that the advertisement must be construed with reference to the article, and as if the article were qualified and corrected by the advertisement. The policy refers to the printed proposals; and the advertisement must either have the effect of annulling the 3d article, or of varying it, if they cannot wholly stand together; of which there can be no doubt; and that the true way of understanding the advertisement is as a correction of the article, and not as a substitution of a new provision in its place, will appear from this:-That the advertisement does not merely declare how persons insured shall be considered, but how they always have been considered; which must necessarily refer to and respect the engagements the office had before made, that is, the policies and proposals which before the time of the advertisement had been executed and published by the office. It is in fact a declaration on part of the office of the construction they at that time did, and always before had put upon their own instruments: it is no substitution of a new engagement different from what they had formerly made, in the place of such former engagement, but an exposition of the sense in which the instruments forming those engagements had been understood by themselves, and were to be understood by others. If this be so, it brings us to what will be the true construction of this 3d article, if it be read as varied by the advertisement; and if so varied, it would stand as if at the end of the article, after the words "no insuarance is to take place till the premium be actually paid by the insurer," &c. there had been added this sentence :-" But all persons insured at this office by policies taken out for one year, or for a longer term, are considered by the managers as insured for 15 days beyond the time of the expiration of their policies:" the effect of which would be to confine the words "no insurance is to take place till the premium be actually paid" (on which the Court relied in Tarleton v. Stainforth) to the premium to be paid on the original effecting of the policy, and to leave the article, as to the con tinuance of the insurance, just as if nothing had been said 1805. SALVIN against JAMES. [ 581 ] 1805. SALVIN against JAMES. [382] said in it as to the time when the insurance was to take place. Suppose then the article to be thus altered, it will still contain the clause of option in the managers to receive the premium, which, though it cannot be exercised during the 15 days, within which the assured may renew his as surance, so as to lease the assured liable to a loss within that period, as that would make the advertisement perfectly nugatory; for it would be in effect saying that they should be sured or not, according as the office should think fit to accept or refuse the premium for another year; yet as the option was most unquestionably intended to enable the office to determine the insurance, and to retain to them the power of refusing to renew it for another year, what is there, in case of their having made their option not to renew the assurance, which entitles an assured to an indemnity for the 15 days, who is in no condition to renew his insurance? The office had the power at any time during the year, of saying to the assured, we will not contract with you again; we will not receive from you the premium for another year; and by such declaration, the object would cease for which the 15 days were allowed; and as no premium would be in such case to be received, no indemnity could be claimed in respect of it. The consideration of the indemnity during the 15 days, is the premium which may be paid within that period; but when that cannot be any longer looked to, or expected, the right to the indemnity must determine also. The effect of the 3d article and advertisement are to give the parties an option for 15 days, to continue the contract or not; with this advantage on the part of the assured, that if a loss should happen during the 15 days, though he have not paid his premium, the office shall not after such loss determine the contract; but that it shall be considered as if it had been renewed: but this does not deprive them of the power of determining the contract at the end of the term, by making their option within a reasonable time before the end of the period for which the insurance was made. Where the premium is received, the effect of it is to give the assured an assurance for another year, to be computed from the expiration of the first policy, and not from the expiration of the following 15 days, which would be the case if the argument of the |