To a declaration on a policy of fire insurance to recover a loss, the plea alleged, that the policy expressly provided, "that no suit or action of any kind against the defendant for the recovery of any claim upon, under or by virtue of the policy, should be sustainable in any court of law or chancery, unless such suit or action should be commenced within the term of twelve months next after the cause of action should accrue; and in case any such suit or action should be commenced against the defendant after the expiration of twelve months next after the cause of action should have accrued, the lapse of time should be taken and deemed as conclusive evidence against the validity of the claim so attempted to be enforced; and that the plaintiff did not commence his action against the defendant within twelve months next after his cause of action accrued to him." To this plea the plaintiff replied, "that within twelve months next after his said cause of action accrued to him, he commenced his certain suit or action for the recovery of his loss or damage by him sustained in consequence of the non-performance by the said defendant of the said several promises and undertakings in said declaration mentioned, in the names of Bourn Brown, trustees to this plaintiff, to wit, at the March term of this court, A.D. 1856; which said suit was by the defendant, under the act of Congress in such case made and provided, removed into the Circuit Court of the United States for the District of Rhode Island, at the June term thereof, A.D. 1856; and at said term the defendant pleaded, that the subject matter of said suit had been settled by an award of arbitrators, and that the defendant never promised as in the declaration in said case was alleged; and upon issue joined upon said plea a verdict was rendered for the plaintiff, and judgment was arrested in said cause upon the motion of the defendant, notwithstanding such verdict. And the plaintiff avers, that the said suit was commenced by himself and for his benefit, and was for the same cause of action for which this suit or action is brought and pending; and that he commenced this action as soon as he reasonably could after the judgment was arrested in said suit in the name of Bourn Brown, trustees as aforesaid, in said Circuit Court of the United States." Held, upon general demurrer to this replication, that it was no answer to the plea, because this suit was no continuation of the suit in the Circuit Court; nor did it appear from the pleadings that the clause of limitation in the policy was qualified, in case of arrest of judgment, as the general limitation was by the fourth section of the statute of James, and the eighth section of the Rhode Island general statute of limitations.
AMES, C.J.
There is no pretence that the present is a continuation of the former suit upon the same policy, commenced in this court and removed into the Circuit Court of the United States, in the sense in which the term continuation is used under general statutes of limitation. That suit was brought in the name of other plaintiffs; and after verdict for them, judgment was, for some cause not explained in the replication here demurred to, arrested upon motion of the defendant. Nor can we notice the variance adverted to in the argument of the plaintiff, between the clause of limitation as pleaded and as contained in the policy; since we have nothing to go upon for this clause except as it is pleaded and replied to. We have already decided in these very suits ( 5 R.I. 394) that the clause of limitation pleaded has force as a condition of the policy; and the replication shows no such qualifications of this condition as those contained in the fourth section of the statute of James, or the eighth section of our own general statute of limitations. The statute of limitation has no application, in any of its provisions, to the clause in question; and, indeed, the only argument against the clause is, that it sets up for the contract a different law of limitation from that which the statute imposes. We have held that the contracting parties have a right to do this in reference to a policy of fire insurance; and we know no right that we have, from considerations of general equity, to import into their contract qualifying terms, which they have not seen fit to adopt.
The demurrer to this replication is sustained, and the replication overruled.