Opinion of the Court, by CURTIS, J.

the expiration of that time. Under such circumstances it is but reasonable to suppose that the assured was to be protected during the thirty-five days. He had reason to consider that to be the true meaning and intent of this policy, and if the defendants desired a different construction, they should have inserted in their policy the provision that a failure to pay on the first day of September or of March forfeited the policy.

Forfeitures are only enforced when it is clearly shown that they were meant by the actual agreement of the parties. Nothing in the present case shows that the parties agreed that there was to be any forfeiture before the expiration of the thirty-five days. If a life insurance company, with a view of attracting the public and promoting its own business, chooses to extend the period for the payment of semi-annual premiums through a period of thirty-five days, and to employ language tending to indicate that the risk is extended through the same period, or which might bear that construction, it is not just that its reasonable intendment should be defeated by an interpretation in favor of the insurers. When still further the insurers, as in the present instance, place prominently upon the face of the policy at its head the words "non-forfeiting life policy," it is difficult for the courts to enforce harsh forfeitures, into which the unwary may have been innocently lured. Verba ambigua fortius accipiuntur contra proferen tum (Jackson v. Topping, 1 Wend. 394; Linden . Hepburn, 3 Sand. 670; Baxter . Lansing, 7 Paige, 353; Marvin c. Stone, 2 Cow. 781).

In this aspect of the case, the defendants would have been liable if the premium payable within thirtyfive days from March 1st, 1874, had not been paid. It was, however, paid to the defendants on the twentyfourth day of March following, by the brother of the deceased, under written instructions from the deceased conveyed to him from Virginia two or three days pre

Opinion of the Court, by CURtis, J.

vious. The brother paid it on the twenty-fourth of March, the same day after he received by telegraph the intelligence of the decease of the assured.

The case as submitted shows no undue delay on the part of the person who made the payment, in view of the time in which he had to comply with the terms of the policy.

It is claimed on the part of the defendants that this payment under the circumstances was unfair, and that the right to make it was personal to the assured, and could not be delegated, and that it ceased with his death.

The payment was by the instruction of the deceased, and reached the insurers after his death, as it might have done if the deceased had forwarded it by post or by a public carrier. There was no bad faith in complying with his request.

There is not much force in the claim that the right to make the payment was personal, and could not be delegated, and closed with his death. The language of the policy imposes no restriction as to who may make the payment, and is entitled to the same construction in favor of the assured as has been applied to the thirty-five days clause, and comes within the same principle. In the case of Want v. Blunt (12 East, 183) Lord Ellenborough based his ruling that the right to pay was personal to the assured on the provision of the policy that the party whose life is insured should himself pay during his life. But the present policy can not be affected by decisions which, though apparently adverse to the plaintiff, will upon a careful examination be found to turn upon different language and restrictions. In Howell v. The Knickerbocker Life Ins. Co. (44 N. Y., 281) it is said in reference to a policy providing that the assured shall duly pay" the premium, that such act could have been performed by any other person as well, and that "its payment did

Statement of the Case.

not necessarily depend upon his continued capacity or existence."

The case of Tarleton v. Stanforth (5 T. R., 695) cited by the defendants on the argument, as well as various other cases, and some of them seemingly favoring the defendants' position, will be found on examination to turn upon admissions or policies differing from the one before us.

In view of the form of the policy, and the construction put upon that class of instruments by our courts, the language of which is that of the insurers, I think the defendants are liable for the amount of the insurance, and the plaintiff is entitled to a judgment therefor, with his costs.

MONELL, Ch. J., and SPEIR, J., concurred.

DUNCAN MCCOLL, ET AL., PLAINTIFFS AND RESPONDENTS, v. THE SUN MUTUAL INSURANCE COMPANY, DEFENDANT AND APPEL

LANT.

MARINE INSURANCE-POLICY, CONDITIONS OF TOTAL LOSS.

The facts in this case show the vessel upon a reef at Cow Bay on the coast of Cape Breton, a dangerous coast, at a season when there was the greatest probability of gales and destructive seas, and the vessel on the rocks under a high and precipitous cliff, and confirm the oral testimony that she could not have been taken off, and was a total loss, subject only to a chance that she might survive the winter tempests and waves. This mere chance (which was sold at public auction) did not forbid the conclusion that under this policy the loss was total.

Statemert of the Case.

If the facts had been submitted to the jury, a finding contrary to this conclusion of the court would have been against a decided preponderance of the testimony.

DEVIATION.

The bark " Lindo, was insured for the voyage, "at and from
Miramichi, to a port in Cape Breton, and at and thence to New
York."

The vessel sailed from Miramichi November 24th, 1864, bound
for Big Glace Bay, a port in Cape Breton, having cleared
at the Custom House in Newcastle (within which district
Miramichi lies) for the port of Big Glace Bay, under a
certificate from the collector to that effect, consigned to the
agent of the Clyde Mines, at Big Glace Bay, to load coal
at that port for New York under a writzen charter dated
November 18th, 1864, by which the owner agreed with
Halls & Creed, agents of the mines, that the said vessel
should receive on board a full cargo of coal in bulk, which
the charterers agree to furnish "at Clyde Mines, Big Glace
Bay, C. B.," and being so laden, to sail to New York, for three
dollars and seventy-five cents, gold, per ton. By the charter it
was also stipulated that "if on the arrival at Big Glace Bay, the
captain does not consider it safe to remain and load, then he is
to be at liberty to proceed elsewhere, and this charter to
be considered cancelled." On the evening of November 25th,
the vessel having passed the North Cape of Cape Breton, and
at ten o'clock P. M. Sydney light, then bearing west about three
miles, the captain concluded to put into Sydney, a port in Cape
Breton, and lying off and on till morning entered that port
and anchored there November 26th. There was no storm or
stress of weather which required him to put into Sydney.
There the vessel remained sixteen days, until December 12th,
when she sailed for Cow Bay, a third port in Cape Breton, and
while loading there with coal for New York, a sudden storm
drove her upon the rocks, constituting the alleged loss.
Held, That the act of the master taking the vessel from Sydney, to
Cow Bay (a second port of Cape Breton) was a deviation from
the voyage for which she was insured.

The master had a right to select a port of Cape Breton, but his
right and the rights of the bark were exhausted by the use
of one port. He could not enter one for the purpose of select-
ing another, or afterwards proceed to another port from the
one first entered.

If the man of the first port was a part of the voyage, then the

Statement of the Case.

act of seeking and taking another was a deviation. If the first port was not a part of the voyage, then the act of seeking it was a deviation in itself. By the policy, it was also warranted, that the vessel was commanded by a captain holding a certificate from The American Shipmasters' Association. The bark was not so commanded, but this fact was made known to the insurers by the insured, and the policy made and delivered, and the premium paid upou the condition that this vessel was a foreign vessel, and it should not or would not apply. Held, that the insurers dispensed with such a certificate, and waived the same.

Before SEDGWICK and SPEIR, JJ.

Decided May 3, 1875.

Appeal from judgment for plaintiff on verdict direcd by the court.

The action was upon a policy of marine insurance which insured the bark "Lindo," "at and from Miramichi to a port in Cape Breton, at and thence to New York, with privilege of carrying coal exceeding her tonnage."

The bark sailed from Miramichi, on November 23, 1864, for Cape Breton. There were several ports in Cape Breton, viz.: Cow Bay, Little and Big Glace Bays, Schooner Pond, Bridgeport, and Lingan, which were upon open roadsteads. Vessels loaded with coal at these ports; but during the winter months, it was dangerous to vessels to lie there, while waiting to load. Strong evidence was given to show that, at such time, it was the custom of trade and navigation that vessels proceeded to the port North Sydney, where the harbor was safe, and waited until they could be immediately loaded at the unsafe ports with coal, and then went, were loaded and departed on the voyage.

The "Lindo" was chartered at Miramichi, to take a cargo of coal at Big Glace Bay. The charter party had the provision, that "if on arrival at Big Glace Bay, the captain does not consider it safe to remain and load