The opinion of the court was delivered by
Strong, J.— It is so apparent from the whole declaration, that the amendment which the court below allowed was that of mere clerical mistake of the pleader, and that it was not intended to substitute a different cause of action, that we cannot doubt the correctness of the decision which permitted it. The policy declared upon was averred to be an insurance from the 12th day of September 1856, for one year; and the fire was alleged to have taken *302place on the 19th of May 1856, within that year. The mistake in the date seems, therefore, to have been one of those errors which the statute of amendments was designed to cure.
And if the amendment was properly allowed, then the refusal to permit a continuance of the cause was a thing discretionary with the court, and the exercise of that discretion cannot be reviewed by us: Tassey v. Church, 4 W. & S. 141. The defendants below were not entitled to a continuance, unless surprised by the amendment. It does not appear that they even alleged surprise, and if they did, the court only could determine whether the allegation was well founded.
It is difficult to perceive why Edward Browning was not a competent witness for the plaintiffs below. He was their landlord. They were indebted to him, and gave him an order on the defendants for the rent due. The order was not accepted, though notice of it was given to the defendants. Browning held it, when called to testify, and released the defendants from all liability on account of it. It is argued that this showed him to be a part owner of the claim upon the policy, and therefore that he was incompetent. But a simple draft, drawn by a creditor upon his debtor, in favour of a third person, whether accepted or not, does not make such third person a part owner of the creditor’s claim, either in. law or equity. It is not even in equity a partial assignment of the claim, unless it be drawn upon the particular fund in the debtor’s hands, or unless the draft designates the claim out of which payment is to be made: Mrs. Greenfield’s Estate, 12 Harris 240. The order in favour of Browning was not drawn upon the debt alleged to be due from the insurance company; it does not appear to have referred to it; it was not even accepted, and consequently it gave to the payee no ownership of the claim either in whole or in part. He stood, therefore, as a mere general creditor of the assured, and was competent.
The sixth and seventh assignments of error raise the only debate-able question in the case. They relate to the instruction which the court gave to the jury, respecting the meaning of the policy of insurance. The policy contained this clause: “ Gunpowder, camphene, spirit gas, pine oil, spirituous liquors, or any similar inflammable liquid, or lucifer or friction matches, or fireworks, are expressly prohibited from being deposited, used, kept, or sold in any building insured, or containing any goods or merchandise insured by this policy, unless by special consent in writing on the policy-from the secretary. Any violation of this prohibition shall render the policy absolutely void.” Upon the trial some evidence was given that friction matches had been used to some extent, by the workmen employed in the building, contrary to the orders of the plaintiff, the assured. The court below instructed the jury in substance, that the use of matches and camphene contemplated in that *303condition of the policy above quoted, must be a use by the author-' ity, express or implied, of the insured; that what was going on habitually in the premises they were bound to know, and would be presumed to know; that if they knew, or as prudent men ought to have known, that these things were used, then their order not to use them would not help them; that use meant known and permitted use, and that habitual-use would be presumed to be known and permitted, unless the insured took measures to enforce the prohibition.
Was this a correct construction of the contract of the parties? We think it was. It is undoubtedly true, that in a fire policy, no less than in a marine one, compliance with an absolute promise in the policy in reference to the risk, is necessary, to hold the insurers to their liability. It is also true, that express warranties must be strictly complied with; yet the construction of the language employed is determined by usage and common acceptation: Bean v. Stupart, 1 Douglas 10. In Glen v. Lewis, 20 Eng. Law & Eq. 364, where it was stipulated in the policy that if there should be used on the premises insured any steam-engine, stove, &c., the policy should be void, Baron Pakke observes, that these conditions are to be construed fairly between the parties, and their meaning be ascertained by adopting the ordinary rules of construction. In New York Equitable Insurance Co. v. Langdon, the policy contained the stipulation that if the building insured should be used for storing therein hazardous or extra hazardous goods, the policy should be of no effect. Among the memorandum articles classed as hazardous, were oil and spirituous liquors. These articles had been kept in quantity in the cellar of the building; and from the casks there stored, smaller vessels had been replenished for a retail trade. Such use, keeping or storage, was held not to be a violation of the condition. Under a similar policy, keeping spirituous liquors in the building insured, in quantity sufficient for the boarders in the house, was held in Rafferty v. New Brunswick Fire Insurance Co., 3 Harrison 480, not to be a breach of the condition. So, in 29 Maine 97, where cotton in bales was among the articles enumerated hazardous, keeping a sufBcient quantity for sale was ruled not to forfeit a policy upon a stock of goods in a store. So, having upon -the premises the prohibited article, for the purpose of making repairs, as oil and spirits of turpentine, for painting, 3 Com. B. 123, or tar, burned in the building for tarring it, 1 Moody & Malk. 90, does not avoid the policy. These cases, it is true, are constructions of a prohibition against keeping or storing the hazardous articles in the insured property, but they all assert the doctrine that the words of the condition or warranty are to be construed according to common usage and! popular acceptation. What, then, must the parties have understood as the thing prohibited by the policy now before us ? Not the use of a friction match in the building containing the goods *304insured, for that was precisely one of the perils insured against, namely, the use of matches by an incendiary. And if simple use of matches was fatal to the policy, then it might have been avoided by the act of the secretary of the underwriters himself, if he had gone upon the premises and used a match thereon. Surely, it should not be claimed that this was the intention of the contracting parties. If, then, mere use of matches was not the thing against which they stipulated, it would seem to follow that it was use permitted by the assured, and such was the instruction to the jury. They were told that the use contemplated by the condition was one by the authority express or implied of the insured; that if the plaintiffs knew, or as prudent men ought to have known, that matches were used, mere orders would not help them, — nothing short of an enforced prohibition would answer, and that if the use was habitual, the law imputed to the assured knowledge and permission. This was the tenor of the charge, and we think it correct. In Dobson v. Southby, 1 Moody & Malk. 90, where it was stipulated in the policy that “ no fire was kept, and no hazardous goods were deposited” on the premises, and the loss had happened in consequence of making a fire thereon, and burning a tar-barrel, for the purpose of repairs, Lord Tentekden said, “ I think that the condition must be understood as forbidding only the habitual use of fire, or the ordinary deposit of hazardous goods, not their occasional introduction, as in this case, for a temporary purpose connected with the occupation of the premises.” This is certainly going quite as far as the court bélow have gone in this case, now before us.
Such being, in our opinion, the true construction of the condition, it is quite apparent that it was material for the plaintiffs below to show that the use of matches and camphene in the building, if any there had been, was not permissive, but had been prohibited by them. The question to the witnesses, what were the orders as to the use of camphene, fluid and matches, in that building, was therefore properly allowed.
Judgment affirmed.