
    Jesse Brown againt Hartford Insurance Company.
    Ia a poiiey of insurance,the clause “prior in date*’ re. er'polfcies°up-risk valent with prior in time.
    
    WRIT of error.
    This was an action of assumpsit, upon a policy of insu-ranee, upon goods on board the brigantine Ontario, from to New-York, or JYew-London; against dan-pjers of the sea, See.
    The plaintiff stated his interest — a loss by tempest — an abandonment; and a demand.
    The defendants pleaded, that it was provided in their policy, that “if the assured had made any other assurance upon the premises, prior in date to this policy, then the said assurers shall be answerable only for so much, as the amount of such prior assurance may be deficient, towards fully covering the premises héreby assured; and that the Hartford Insurance Company shall return the premium upon so much of the sum by them assured, as they shall be, by such prior assurance, exonerated from; and that in case of any assurance upon the said premises subsequent in date to this policy, the said Hartford Insurance Company shall, nevertheless, be answerable for the full extent of the sum by them subscribed hereto, without right to claim contribution from such subsequent assu-i ers; and shall accordingly be entitled to retain the premium by them received, in the same manner as if 7:0 subsequent assurance had been made:” and then a verred that the plaintiff, prior to the assurance made by the defendants, had procured insurance upon said goods to the amount of 20,000 dollars, (viz.) 15,000 dollars at Boston, on the 1st of February, 1805, and 5,000 dollars at Middletown, by the Middletown Insurance Company, by a policy dated the 7th day of March, 1805; (which p ilicy contained a clause similar to that above recited in the policy made by the defendants ;) which assurances were both made before and were prior to the date of the pi ilicy made by the defendants, (viz.) the one at Boston, on the 1st of February, 1805 ; the other at Middletown, on the 7th day of March, 1805, between the hours of nine and eleven in the forenoon; and that the assurance made by -the defendants was made afterwards, on the said 7th day of March, 1805, between the hours of seven and eight in the afternoon of said day: that the insurable in* terest of the plaintiff in said cargo amounted to the sunt of 22,050 dollars and 86 cents, and no more; and the defendants had paid to the plaintiff the sunt of 2,03 ) dollars and 86 cents, the amount of his interest’ beyond the sums insured by the former policies.
    To this plea there was a demurrer; and it was adjudged sufficient, by the superior court; upon which judgment this writ of error was brought.
    
      Dam and Homier, for the plaintiff.
    The sole question is, whether the policy made at Mid-dletown, the same day with that at Hartford, though, be - fore, is prior in date to the latter. Do those words mean before the moment, or act, of underwriting the policy; ®r do they mean, before the date, expressed or apparent, on the face of the policy ?
    
      The word “ date” has sometimes been taken to mean the act or minute of delivery ; but this is contrary t« the usual acceptation, in consequence of other words, showing the intent, ut res magis valeac, tjuam fiereat But when the word “ date” is not limited, or qualified, by something extrinsic, it always denotes the date expressed. Thus, when we speak of the date of a letter, a note, or a declaration, we always mean the date therein expressed. So the date is said to be the day, month and year -,
      
       and bearing date is of the same import.
    
    We are not, then, to look to the etymology of the word for its construction; for from the arbitrary use and fluctuation of language, the popular meaning of words differs much from that of the root from whence they are derived.
    
    
      Usus est jus, et norma loquendi:
      
       usage decides upoa the force of language.
    Deeds take effect not from their date, but from deli» very. Date and delivery are here used, not as synonymous, but in opposition to each other.
    From henceforth means from the making or delivery. Clayton's case. The statute of 27 Hen. VIII. concerning enrolments, expressed, that they must be made within six months after the date; if such writing have a date, the six months shall be computed, not from the delivery, but from the date.
    
      In an anonymous case,
      
       Holt, Ch. J. says, a date of a deed is express, or implied; the express date is the very day, and year, in which the deed was made; and this is ' ^ . always intended, when it is said, bearing date; the other is the implied date, which is the delivery.
    
    In Goddard's case, it is said, “ The date of a deed is not of the substance of a deed; for if it hath no date, or a false or impossible date, yet the deed is good. For there are but three things of the essence and substance of a deed ; that, is to say, writing, in paper or parchment; sealing; and delivering. And when a deed is delivered, it takes effect by the delivery, and not from the. date." Here again, Lord Coke distinguishes the date from the delivery. “ I. S. makes an obligation dated and delivered the 1st of May: on the 1st of June the obligee made a release bearing date 1st of March, but delivered the 1st of June, releasing all actions, ab origine mundi, until the date of the release. And all the justices were of opinion, that the obligation was not released.” Dru-ry’s case.
      
       Here, the date is settled to mean the expressed date.
    In Pugh v. Leeds,
      
       Lord Mansfield says, what is the date ? It is a memorandum of the day when the deed Was delivered. In Latin, it is datum; and datum tali die, is delivered on such a day.
    Then in point of law, there is no fraction of a day; it is an indivisible point. What is the day of the date. It is the day the deed is delivered. The date, therefore, and the day of the date, must be the same thing. It is impossible, in common sense, to distinguish the one from the other. Date does not mean the hour or j^je minute. but the day of delivery, and in law there is no'fraction d « day.
    
    
      As to the other point, that from should, in'all'cases, be construed to be exclusive, it is contrary to the common signification of language. And for courts of justice to determine words against the intention of parties, and against the generally received sense and acceptation of the words themselves, is laying a snare to entrap mankind.
    
    The multiplied contradictory determinations upon the words “from the date” would never have existed, had date been supposed to mean delivery; and the reasonrwhj date means the expressed date, is because it is aot necessary, in one instance out of a hundred, to distinguish the moment of delivery, but the day only.
    The construction contended for, by the plaintiff, is the most equitable, as it divides the loss equally among the insurers.
    
    It is not to be supposed, that the speaker will hurt himself; and if his words are construed in the sense ■which is strongest against him, it makes it for his interest to avoid intricate and ambiguous expressions.
    
    But if the reason on which the stipulation is founded is brought in to aid the construction, we ought to be certain that the true reason is known; and not be led to adopt vague and uncertain conjectures. If the words are clear, and present nothing absurd, they must have a controlling influence, without reference to the reason or motive inducing the contract. So the preamble to a statute may be called in to explain, but can not control the enacting clause, expressed in clear, and unambiguous terms.
      
    
    What was the reason of this stipulation ? The defendants were unwilling to assume risks already covered; and therefore, on principles of convenience and security, and to prevent litigation and expense, and the perils of oral testimony, they assumed the express date of policies as the standard by which their responsibility was to be tested. This is our conjecture; the reason is not, and cannot be certainly known.
    But had not the parties intended to have avoided this confusion, they would have used the word “prior” instead of the words “ prior in date.” As they have not, there is reason to suppose that they thought, with Lord Coke,
      
       that fractions in a day would be “ the mother of confusion and contention”
    
    The plaintiff does not contend, that a wagering policy would be good. But the case of double insurance is like that of sureties: the party has a double security, but founded upon one interest.
    
      Goodrich and T. S. Williams, for the defendants.
    What did the parties intend by this clause in the policy ? And is their intent to be pursued ?
    To determine what the parties intended, it is necessary to inquire what would have been their situation without this clause by the English law, from which we have borrowed ours. By that law, as at present understood, where there are insurers to more than the amount of the interest, the insured may collect the sum insured of the last underwriter, or the first, at his election ; and the person from whom he collects it may resort to the other underwriters, and compel them to contribute according to the sums by them insurecL-
    
      The evils from this mode are various. It gives t\\e assured a right to alter the situation of the assurer without his consent, by a subsequent insurance. It makes the underwriters insure the solvency of each other. It makes those who write on the same policy partners with each other. It compels them, as the case may be, to resort to foreign jurisdictions to procure contribution from those with whom the insured may have chosen to contract. But above all, it holds out, a temptation, and affords a shelter for fraud. Miller on Ins. 265.
    To prevent these evils, the underwriters in this country have generally inserted a clause in their policies similar to the one under consideration, by which they intended to avoid these inconveniences, and to cut up by the roots this doctrine of contribution. And the questions between us is, may not the words used be so construed as to give effect to this intent l
    
    The words used are u prior in date." Had they used the word “ prior" only, it is agreed, that there would have been no doubt as to the construction. Did they intend to limit it, by introducing the word “ date." What is the date ? Johnson, in his Dictionary, gives as one definition “ the time at which an event happened." It is said to be the very act of delivery of a deed, and is from datm. 3 Lev. 439. So, Lord Coke says, it means the time of execution or delivery, and takes effect from that time. 2 Co. 5. It is not of the substance of a deed. Yelv. 193. And when it is mistaken, the plaintiff may prove the time of actual delivery. 3 Lev. 348. Cm. MHz. 890.
    Lord Mansfield, indeed, says, that date means the day, not the hour or minute of delivery; and there is no fraction of a day. Coivp. 720. But these words are to be taken as relative to the case before him; and as only a general rule: — Because the same judge always held, that fictions were not to be urged, contrary to the justice of the case. 3 Burr. 1243, 3 Wils. 274. And in Combe v. Pitt, 3 Burr. 1434. he says, not only the day but the time of day may be averred to show which is prior ; u for the day is not like a mathematical point, which cannot he divided,” So long as there are hours and minutes, different transactions will be done at different hours of the same day. And there are many cases where at> inquiry is made as to the time of day when au act is done, as where there is a claim of the attaching creditor, or one creditor claiming by a deed, and one by an attachment of the same date. So, where there is an execution, and commission of bankruptcy, on the same day ; an inquiry may be had as to the priority of either. 8 Ves. jun. 82. So an action for words will lie upon the very day on which they were spoken. Styles, 72. So when a note and a release are executed on the same day, the party may aver which was first. Co. Lift. 46. Pow. on Powers, 532. And Drury’s case is nothing more than this. Cm. Eliz. 14. When there are two bottomry bonds, the one of the last date is to be preferred. Abbott, 112. But if there were two of the same date, is there any doubt but the last would be preferred, though the date was the same. Caines, the only writer who speaks of this clause in our policies, treats these words “ prior in date,” as synonymous to the word previous.. Lex Merc. Amer. 817.
    The term date means no more the apparent date than the real date. The true meaning is, when the thing Was done. If by “ prior in date” was meant only the apparent date, then the clause introduced with so much care into all our policies would be oí no avail; because the assured need oniy piocure a policy d.ued so as to meet his own risks, and its t fleet is destroyed. The real date must, therefore, in tjus case. ⅜⅛ m all others, when it differs from the apparent date, be as* certained by parol proof.
    But aside from the words made use of, in this clause of the policy, it is worthy of consideration whether the defendant would be liable. The plaintiff having-covered his interest is sure of an indemnity. Any attempt to do more is in nature of a wagering policy, and therefore void by our statute concerning gaming, and by the general principles of common law.
    The construction at present given to such insurances in England, must be founded upon their own customs, and is certainly contrary to every analogous case. It is contrary to the ordinances of almost every commercial nation, viz. to those of Antwerp, Genoa, Spain, France, Bilboa, Florence, Amsterdam, Hamburgh and Stockholm, % Mag.All. 65. 34. 172. 412. 134. 222. 267, 268. Indeed, that writer says, it is the universal custom, that the first insurance stands good, and the last returns the premium. 1 Mag. 90. Park, 288. So was the former custom in Great Britain, as proved by all the exchange. 1 Show. 132. And this Malyne calls the rare custom of insurance. Mill. 256. This is, indeed, changed by modern decisions. Marsh. 117. But our courts, it is believed, will hesitate, before they recognise those decisions in this state; and will adopt the maxim, that via antigua via eat tuta.
    
    
      
      
        Hatter v. Ash, 3 Lev. 438. Gilb. Law Ev. 210.456.
    
    
      
       1 Marsh. Ins. 241.
    
    
      
      
        Co. Litt. 6.
    
    
      
       1 Pow. on Cont. 378,
      
    
    
      
       1 Bl. Comm. 359. Comp. 704.
    
    
      
      
        Shep. Prec. 69-
    
    
      
       5 Co. 1.
    
    
      
       3 Salk. 120.
      
    
    
      
       2 Co. 5.
      
    
    
      
      
        Cre. Eliz. 14.
    
    
      
       Coup.704,
    
    
      
      
        Marsh. Ins. 115.
      
    
    
      
      
        Gilb. Law Ev. 213, 1 Pow. on Cont.395,
    
    
      
      
        Vattel, 385.
    
    
      
      4) Vattel 386.
    
    
      
      
         4 Term Rep. 793.
      
    
    
      
      
         5 Co. If-
      
    
   By the Court,

Griswold, J.

not sitting.

The only question presented by this record arises from the phrase “prior in date.” The day of the date of both policies being the same, it is contended that, as the law does not notice the fractions of a day, it is incompetent for the defendants to aver, or prove, the hour sf execution, to show priority of time.

It Is true, generally, that the law disregards the fractions of a day, because generally it is not important; but the rule is not universal. It is clearly otherwise, where the precise time is important for the attainment of justice. Contests of this kind frequently occur between - attaching creditors under our statute, and between opposing claimants under record titles. In these, arid many similar cases, priority of time in the same day is always an issuable fact.

It was evidently the intention of the contracting parties in these policies, to avoid the inconvenience of contribution, by making the insurers liable in the order of time. This was anciently the law in England; modern practice there had introduced a different rule. The parties intended, by inserting the clause in question, to abolish the modern, and restore the ancient, rule. This being their object* it is unreasonable to suppose that the parties, while thus attempting to alter the rule, should leave a portion of time, viz* a day, subject to the inconvenience of a rule they evidently intended to avoid. The fair inference is, that they altered the rule, not only generally, but universally ; and that their expressions, if not explicit, are to receive such construction as will effect the apparent object of the contracting parties.

We are, therefore, of opinion, that the expression “prior in date,” as used in these policies, is equivalent with prior in time; and that it was, of course, competent for the defendants to aver and prove the precise time of execution; and that there is nothing erroneous in the record before us.

Judgment affirmed.  