Brown v. Hartford Insurance Co.

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. [67] 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.