¶1This term, delivered the opinion of the court, to the following effect:
¶2We have formed our judgments on the first exception stated against the plaintiff’s recovery. It is unnecessary, and perhaps improper, to say any thing of the second exception, in the present stage of this ease.
¶3The clause in the policy, that the loss shall not be demanded till within three months after proof made, appears highly material. The parties have mutually stipulated, that no duty shall arise till within a certain period after notice given of the loss, and the commencement of a suit before that time has elapsed, is premature. Two reasons may be suggested for this delay: 1st, The underwriters have thereby an opportunity of investigating the justice of the plaintiff’s claim; and 2dly, an intervalis allowed them for making up the money, if his pretensions are well founded. Intimation of the loss should be lodged in the office where the insurance was effected; and such is said to be the practice of merchants. Mai. Lex,' Mercat. 115
¶4It is possible, that the original intention of the agreement to enter the amicable action, was to try the merits of the question, as to the plaintiff’s right of recovery for the supposed loss on the policy. But no waiver of any part of the defendant’s legal defence is expressed therein; and therefore, judging from the words of the instrument, if the second point is insisted on, we are constrained to say, that judgment be entered for the defendant.