668
FEDERAL REPORTER.
ing to pay for making the record; but, as a general policy, its good effects, in making certain what has been done, are indisputable. The practice has existed as a part of the machinery of courts of record from "the time whereof the memory of man runneth not to the contrary," and its wisdom has been approved by the concurrent experience of ages. The "final record" of our courts corresponds with the "judgment record" of the common law. Section 750, Rev. St., enumerates what proceedings "only" shall be entered on the final record in equity and admiralty causes; but common-law cases are left to the general practice governing courts of equity. In questions of res retraxit, and often in collateral issues, matters settled in a suit of this kind frequently spring into an importance not to be foreseen at the time of their disposition. If the making of the re<;ord depended upon the fact of' the rendition of a judgment in the case, as is the practice of the state courts, it is nevertheless true that the dismissal of the case by consent of parties, under the direction of the court, at defendant's costs, was practically a judgment in favor of the plaintiff, at least for costs, and tq that extent it is a judgment of record, binding upon the parties. But I do not think the state law controls the national courts in a question of this character. This court is one of limited jurisdiction, and all the facts in a case necessary to give the court jurisdiction should be shown by the record. It should appear upon the face of the record that all the orders made by the court, and the judgment of the court for costs, which in the case at bar include as well the fees of the marshal, witnesses, auditor, and attorney, as of the clerk, were made in a case properly brought in its jurisdiction, and this will not appear if the pleadings of the stateconrt, together with the removal proceedings, are not, with the proceedings in this court, entered upon the record. The eighth clause of section 828, Rev. St., provides that the clerk's fee for making any record shall be 15 cents for each folio. The charge is therefore legal and proper. . It is ordered that the taxation of the costs, as made by the clerk, be sustained, and the motion. to retax denied.
VETTE
v.
CLINTON FIRE INS. Co.
(Oircuit Oourt, E. 1.
n. Missouri, E. n.
April 30, 1887.)
LIMITATION OF ACTIONS-AGREEMENT-VALIDITY.
The time within which suits ·upon a contract must be brought may be limited by agreement between the parties.
2. INSURANCE-CONSTRUCTION OIl' POLICY.
Where a provision is inserted in a policy of insurance for the benefit of the insurer, and there is a reasonable dO\lbt as to its meaning, that construction ought to be given it which is most favorable to the assured.
8.
SAME-POLICy-LIMI'fATION OF ACTION-GONsTRUCTION.
Where a policy of insurance provides that the loss, if any, should.be payable "sixty days after due notice and proof of the same shall have been made,
VETTE v.
CLINTON
FIRE
INS. CO.
669
*
At Law. This is an action upon a policy of fire insurance. The loss occurred February 23, 1886. Proof was made, and the amount of the loss fixed by agreement, March 12, 1886, at $500. Action was brought upon the policy September 14, 1886. Muench &- Cline. for plaintiff. Gi1:enCampbell, for defendant. THAYER, 'J., (orally.) In this case the action is upon a policy of fire insumnce, and the question to be decided arises upon a demurrer to the petition. The loss occurred on the twenty-third of February, 1886. Proofs of loss were furnished on the twelfth of March, 1886, and this suit was brought on the fourteenth of September, 1886. By the terms of the policy the loss is made payable "60 days after due notice and proofs of the same shall have been made by the assured, and received at the company's office, in accordance with the terms and provisions of the policy." The policy contained a further provision: "That no suit or action against the company for recovery of any claim, by virtue of this policy, shall be sustainable in any court of law or chancery until after an award shall have been obtained fixing the amount of such claim; nor unless such suit or action shall have been commenced within six months after the loss shall have occurred." lithe provision last rEiad is construed literally. and without rl:Jference to any other. provisions of the policy, it would follow that this action was barred on the twenty-third of August, 1886; but, if it is construed in connection with other provisions, a different result may be attained. The clause in question is a special statute of limitations, created by contract between the parties. and it has been held that such stipulations are valid. Riddlcsbargcr v. Hartford Ins. Co., 7 Wall. 389. But when does the period of limitation begin to run, in view of other stipulations in the policy? It would seem reasonable to so construe the stipulation as to give the assured the full term of six months in which to sue, after a right to sue has accrued, and this, I think, was the intent of the parties to the contract. The loss is not payable until 60 days after proofs are furnished, and by a further provision the assured is deprived of his right to sue until an award has been made fixing the amount of the claim. In the mean time, according to defendant's theory, the limitation prescribed by the policy is running against the demand, and barring plaintiff of his remedy, although the time has not arrived when it is po&sible for him to maintain an action. Ordinarily, a statute limitations does not begin to run until a right of action has accrued,that is to say, until the plaintiff has full liberty to sue, if he is so in-
670
clined; and I see no goOd reason for construing the special statute of limitations imported into this contract in such way as tomake'itoperative during a period wpen, by virtue of other stipulations of the contract, the right of action is suspended. There is another consideration the view above The stipulationin hmItmg rIght of action to SIX months after the loss occurs, IS a provision, inserted for the special benefit of the insurer. If, then, by comparing the stipulation with. other provisions policy, a doubt arises as to the time when the limitation begins to run, that construction ought to be given (if it be a reasonable construction) which is most favorable to the assured, against whom it was intended to Qperate. The view which the court has taken seems to be in harmony with the views expressed by other courts on the same question, vide.Steen v. Nwgara Fire 1m. Co., 89 N. Y. 315; Mayor, etc. v. Hamilton 1m. Co., 39 N. Y. 45; Ohandler v.St. PaUl Ins. 00.,21 Minn. 85; Spare v. Home Mut. 1m. Co., 17 Fed. Rep. 568; and May, Ins. § 479. The demurrer is overruled, and the defendant held to answer.
WEDEMEYER and others 'IJ. LANCASTER, Surveyor, etc. BATESON SAME. SIMMONS HARDWARE Co. 'IJ. SAME. J:(JirCJlit Oourt, B. D. Mi880uri, E. D. May 8, 1887.) 1. CuSTOMS D'!7'J'IES-ExCESSlVE DUTIES-PRACTICE.
fl.
Actions to recover excess of duties paid under protest are purely statutory.
2. SAME-PLEADING.
Where the petition shows, on its face, that the plaintiff has taken all the steps, antecedent to a suit, prescribed by sections 2931 and 3011, Rev. St. U. S., and furthermore contains a statement of all those matters required to be contained in a bill of particulars under section 8012, Rev. St. U. S., it is not demurrable on the ground that it does not state a good cause of action. The facts required to be stated in the bill of particulars need not be stated in the petition any more fully than they are required to be stated in the bill.
8. SAME.
4.
SAME.
Where the petition stated that the defendant, ODa given day, required the plaintiff, as importer, to pay a given sum, in excess of the lawful duties, on certain described goods, which were invoiced on a certain day, shipped from a certain place. on a certain steamer, and were entered in the custom-house on a given date, held, that it was not demurrable on the ground that it merely stated legal conclusions, and did not state any facts in an issuable form.
At Law. On demurrer to petitions. John M. Holme8, for plaintiff. Thomas P. Bashaw, Dist. Atty., for defendant. THAYER,J., (oraUy.) These are suits against the surveyor and acting collector ofimport duties at the port of St. Louis, to recover excessive duties all611ed to have been exacted by him on certain merchandise entered at this
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