DECEIT. tary of an insu rance company for misrepresentation. (s) Commencement, ante, 13.] For that whereas heretofore and before the Against a secre- committing of the grievances by the defendant hereinafter mentioned, to wit, on &c., a certain publication had been printed and published, purporting to be a copy of a certain deed, bearing date the day and year aforesaid, and purporting to contain, amongst other things, a recital of the said deed, that the public having derived great benefit from the establishment of a society known by the name or style of the Norwich Union Society, formed for the purpose of the insurance of houses, buildings, goods, merchandizes and effects from loss or damage by fire; and that it appeared from mature consideration, that many advantages and great benefits might arise and be secured to great numbers of persons in particular situations in life and circumstances of fortune, from the establishment of a society to be composed of such persons as should be qualified and willing to become mutual contributors for equitable insurances on lives and survivorships, upon premiums proportionable to the chance of death attending the age of the life to be insured, and to the time for which such insurance was to be continued: and for granting and selling annuities for life or lives to any person or persons for a gross sum in hand paid; that it was then further stated by the said indenture, that they, the said parties, whose names and seals were thereunto subscribed and affixed, being willing and desirous to procure every of them to themselves respectively, or to their several and respective executors, administrators or assigns, and to insure to others who should unite themselves with them, the advantages and benefits that might arise and be had from establishing themselves into a society for effecting equitable insurances on lives and survivorships, &c., did thereby consent, promise, agree, undertake and covenant, every of them for themselves respectively, to and with all and every the others of them, to become by mutual contributions insurers on lives and survivorships, and grantors of annuities, and to become members of, and to enter and erect themselves into a society by the name of the Norwich Union Society or Union Office, for insurances on lives, &c. upon such terms, premiums and conditions, and with and under such constitutions, laws, rules and regulations as should be thereafter in the said indenture expressed, declared and provided for, and for such time and term to continue members thereof as should be signified in the policies of insurance to be made out and delivered to every of them respectively at the time, and in the manner thereinafter for that purpose mentioned; and that for the better forming, fixing and establishing the said society, and governing and regulating the same, and the proceedings thereof, and the more effectually to make provision for producing and securing to them the several good and beneficial ends and purposes thereby intended, that they, the subscribers to the said indenture consented, and severally covenanted, promised, agreed and undertook, every of them for themselves respectively, to and with all and every of the others of them, to observe, perform, abide by, conform to, fulfil and keep all and singular the articles, clauses, provisions, agreements, &c. thereinafter mentioned and contained, and amongst others the following, that is to say, [Here several provisions and rules were set out, (s) See the form, Pontifex v. Bignold, 9 Dowl. 860. the material parts of which may be sufficiently collected from the breaches.] And the plaintiff further saith that afterwards, to wit, on the day and year first aforesaid, a certain society was constituted for the purpose aforesaid, and falsely pretended and assumed to be constituted and conducted according to the deed so recited and set forth in the said publication; and before the committing of the grievances hereinafter mentioned, to wit, on &c., he the said defendant, then being and acting as secretary of the said society, did issue, circulate and distribute for and in the name of the society so falsely pretending, &c. and then called and known by the name of the Norwich Union Life Insurance Society, a certain prospectus or printed statement of the funds and regulations of the said society, and of the bonuses that had been declared, the amount of premium deposited by the members at various periods since the formation of the said society up to the year 1829, which said prospectus, &c. contained, among other things, the statements following; that is to say, that the first addition to the sums insured in the said society was made on the 28th June, 1816, when a bonus of twenty per cent. was declared on the amount of premiums deposited by the members insured previous to July, 1815; that the second addition, assigned on the 28th July, 1823, was twenty-four per cent. upon all premiums deposited prior to July, 1822; and that the third addition was declared on the 29th August last, and was twenty-five per cent. on all premiums deposited prior to July, 1829, making a total addition of £69 per cent. on all insurances effected prior to 1815, and of £49 per cent. prior to 1822. And the plaintiff says that afterwards, and before the committing of the several grievances by the defendant hereinafter mentioned, to wit, on the 9th of July, 1831, he the said plaintiff, then being desirous of effecting an insurance with the said company, &c. did apply to the defendant so being secretary, &c., for information about the same, and did inquire of the defendant, and request him the defendant to inform him the plaintiff, whether the above recited articles, provisoes, powers, conditions, laws, constitutions, ordinances, regulations and agreements contained in the said deed of settlement, as set forth in the said publication, had been duly performed, complied with, observed, kept and fulfilled, and whether the above recited statements concerning the funds and pecuniary affairs and prosperity and bonuses of the said society, so contained in the said prospectus or printed statement of the funds and regulations of the said society as aforesaid, were true and correct; nevertheless the defendant well knowing the premises, and that the above recited articles, &c. had not nor had any of them been duly complied with, &c. and that the said recited statements, &c. were not, nor were any or either of them strictly true and correct, but contriving, and fraudulently intending craftily and subtly to deceive and injure the plaintiff in this behalf, on the day and year last aforesaid, falsely, fraudulently and deceitfully, in answer to the said inquiries so put to him by the plaintiff as aforesaid, did represent and affirm that the above recited articles, &c. had and each and every of them had been duly performed, &c. and that the above recited statements, &c. were, and each and every of them was strictly true and correct; by means and in consequence of which representation, &c. so made and given by the defendant to the said plaintiff as aforesaid, the plaintiff not knowing to the contrary, but believing thereupon that the said society was in the DECEIT. DECEIT. condition and in the circumstances and state so described, &c. by the defendant, and that its affairs were duly, lawfully and regularly administered and conducted, according to and in conformity with the several above recited articles, &c., afterwards, to wit, on the 11th July, 1831, made and entered into a certain policy of insurance with the said society, on his the plaintiff's life, upon the terms therein mentioned [profert], and paid thereon, according to the terms of the said policy, to the said society when the same became due, divers sums of money, to wit, &c.; whereas in truth and in fact the said defendant well knew at the time of making the said representations and affirmations, that the said recited articles, &c. had not been nor were any of them performed, &c. in this, to wit, that the said trustees had not nor did choose new trustees to supply such vacancies in their number as had from time to time occurred by death, resignation or otherwise, but on the contrary thereof, &c. [Breaches of the other rules were then alleged, with regard to the holding of meetings by the directors for the various purposes of the society.] And it was further stated, that the securities taken by the society were not taken in the names of the trustees or any four of them, but that securities to a large amount were taken in the name of the defendant as secretary; that the defendant so being secretary had omitted to see that the orders of the directors, with regard to the funds of the society, had been carried out, and that he did not once in two years, between the months of June and September, prepare an account of the state of the society's funds, &c.; that no general meeting of the members of the society was called, as by the deed was required; but on the contrary thereof, although no such meeting was called, and although the funds of the society were not more than sufficient to pay the claims made, or liable to be made, upon the society, yet afterwards, and before the committing of the grievances, &c., to wit, on the 29th August, 1830, a certain dividend of supposed surplus was declared, &c. without reserving one-fifth part of such surplus to be funded for the purpose of accumulating, and forming a permanent capital to answer the demands that might be made upon the society, in case of any extraordinary mortality amongst the members, &c. And whereas in truth and in fact the said above recited statements concerning the funds and pecuniary affairs and prosperity of the said society, so contained in the said prospectus, &c. were not each or any of them strictly true, and in this, to wit, that the third addition to the sums insured, which was declared on the 29th of August, 1830, of £25 per cent. on all premiums, &c. was in truth a false and fraudulent addition, &c.; by means whereof, and of the said false and fraudulent misrepresentation and deceit of the defendant, the plaintiff says that he has been defrauded and deceived in making and effecting the said policy, and in making the said payments of the said premiums from time to time, and the said policy of insurance is of much less value to the said plaintiff, than if the said representations of the defendant had been true in substance and in fact, to wit, £1000 of less value, and by means whereof the said plaintiff is likely to lose the whole benefit of his said policy of insurance, and of the said sums of money so from time to time paid by him as aforesaid to the said society as premiums for the same, to the damage of the plaintiff of £3000, &c. FOR NEGLIGENCE IN DRIVING CARRIAGES. Commencement, ante, 13.] For that whereas the plaintiff heretofore, to wit, on &c., was lawfully possessed (x) of a certain carriage, to wit, [a chaise] to wit, of the value of £——, and of a certain horse, [or " divers, to wit, horses,"] then drawing the same, and in which said carriage the plaintiff was then riding in and along a certain public and common highway; and the defendant was also then possessed of a certain other carriage, and of a certain other horse, [or "divers, to wit, horses,"] drawing the same, and which said carriage and horses of the defendant were then under the care, government and direction of a certain then servant of the defendant, who was then driving the same in and along the said highway. Nevertheless the defendant then by his said servant so carelessly and improperly drove, governed and directed his said carriage and horses, that by and through the carelessness, negligence and improper conduct of the defendant by his said servant in that behalf, [one of the hind wheels of] the said carriage of the defendant then ran and struck with great force and violence upon and against the said carriage of the plaintiff, and thereby then crushed, broke to pieces, damaged and destroyed the same, [and one of the wheels, and the splinter bar, and the shafts thereof,] and the said carriage of the plaintiff thereby then became and was rendered of no use or value to the plaintiff, and thereby the plaintiff was then cast out and thrown with great force and violence from (u) See forms, 8 Went. Index, 47; 2 New Rep. 117, 446; 6 Car. & P. 501; and see the forms, ante, 486, of declarations against coach proprietors for overloading and improper driving; see also ante, vol. i. 141 to 144. The general rule of law respecting negligence is, that although there may have been negligence on the part of the plaintiff, yet, unless he might by the exercise of ordinary care have avoided the consequences of the defendant's negligence, he is entitled to recover; Davies v. Mann, 10 M. & W. 546. The law or usage of the road is not always the criterion of negligence; therefore, where the defendant's carriage was on the wrong side of the road, and in attempting to pass on the near instead of the off side, plaintiff sustained damage, it was held a question for the jury, to decide whether there was negligence, without regard to the law of the road; 2 D. & R. 255; 5 Esp. 273, 35, 44. But though the rule of the road is not uniformly to be adhered to, if by departing from it an injury can be avoided, yet in cases where partics meet on a sudden, and an injury result, the party on the wrong side should be held answerable, unless it appear clearly that the party on the right side had ample means and opportunity to avoid it; 3 Car, & P. 544. Where the defendant was driving on the wrong side of the road, which was of considerable breadth, and the plaintiff's servant, who was on horseback, without any reason crossed over to the side on which the defendant was driving, and on endeavouring to pass his horse was killed, Lord Kenyon, C. J., held, that it was putting himself voluntarily into danger, and that the injury was of his own seeking; but the jury found a VOL. II. verdict for the plaintiff, which the Court of (x) This is sufficient, though the plaintiff M M FOR IN DRIVING Against the owner of a coach for the negli gence of his servant in driv ing the same against plaintiff's chaise. (u) NEGLIGENT Against the and off his said carriage to and upon the ground there, and by means of the several premises the plaintiff was then greatly bruised, hurt and wounded, and became and was sick, sore, lame and disordered, and so remained and continued for a long time, to wit, hitherto, during all which time the plaintiff suffered great pain, and was hindered and prevented from performing and transacting his lawful affairs and business by him during that time to be done and transacted; and also by means of the premises was forced and obliged to pay, lay out and expend, and hath necessarily paid, laid out and expended divers sums of money, in the whole amounting to a large sum of money, to wit, the sum of [£10,] in and about the endeavouring to be healed and cured of his said wounds, hurt and bruises occasioned as aforesaid; and also by means of the premises the plaintiff hath paid, laid out and expended divers large sums of money, amounting in the whole to a large sum of money, to wit, the sum of £- in and about the repairing of the said chaise so damaged as aforesaid. [In the original declaration, in 2 Chitty on Pleading, 5th edit. 711, there was a second count more general; but since the pleading rules, Hil. T. 4 W. 4, reg. 5, more than one count on the same transaction is not admissible. Commencement, ante, 13.] For that whereas the plaintiff, before and at owner of a ship the time of the committing of the grievance by the defendant as hereinafter for negligence in the navigation next mentioned, was lawfully possessed of a certain [barge or vessel,] to of it, whereby wit, of the value of £, then lawfully being in the river [Thames,] and plaintiff's barge was damaged. the defendant was also then possessed of a certain other [barge or vessel] (y) in the river aforesaid, and then had the care, direction and management of the same; Yet the defendant not regarding his duty in that behalf, whilst the said [barge or vessel] of the plaintiff so was in the said river, to wit, on &c., took so little and such bad care of his said [barge or vessel] in the direction and management of the same, that the same, by and through the carelessness, misdirection and mismanagement of the defendant and his mariners and servants in that behalf, then with great force and violence ran foul of and struck against the said [barge or vessel] of the plaintiff, and thereby then greatly broke, damaged and injured the same, and thereby divers goods and chattels, to wit, &c. [specify them, either according to the exact description or as in trover,] of the plaintiff, to wit, of the value of £—, then being on board of the said [barge or vessel] of the plaintiff, then be (y) See the forms, 8 Wentw. Index, 46, 47; 5 T. R.649; 2 New Rep. 446; 1 B. & P. 472; 8 T. R. 188; Morg. 432, 434; 1 Rich. C. P. 478; Lil. Ent. 38, 180. In an action against the party himself, who has occasioned an injury by improperly driving a carriage, the remedy is trespass, or case; see last note, and the cases there cited; and the same observation applies to negligence in the navigation of a ship; see the cases referred to on this subject, ante, vol. i. p. 141 to 144. The injury may be stated to have been occasioned by the negligence of the defendant himself, though in fact he were not present. This action will not in general lie against the owners or master, if a pilot was on board who had the management of the vessel; see 6 Geo. 4, c. 125, s. 63; 3 Stark. 12; 7 Taunt. 258; 1 Moore, 4; Holt, C. N. P. 359, S. C.; Lucey v. Ingram, 6 M. & W. 302; see the cases in 6 B. & C. 657; 5 B. & C. 156; 2 Bingh. 219; and those collected in 2 Chitty's Commercial Law, 59; as to the evidence of such management, see 7 Taunt. 258, 309. A pilot steering a vessel is liable for an injury occasioned by his own misconduct, though a superior officer be on board; Peake's Rep. 107; 15 East, 384. What owner is liable, 2 New Rep. 182; 1 East, 110; 6 T. R. 659. What remedy in Court of Admiralty, 5 Rob. Rep. 345; 2 Chitty's Gen. Prac. 515; see the rule as to the mode of navigation where ships meet, 3 C. & P. 528. |