The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1850-07-17
Common Pleas.

"a
brought to recover - 7t0 the amount Of policy OF
insurance made BY the defendants 70 Edward Media
hon ana Unsigned by him for the bsus6t Of his eredi.
tors and subsequently, sold 20 the present plaiptifs
lnsuraDces IN various offices 20 the amount OF SIS 900
| are involved In che present issue.
Mr. = Cutting addressed the jury on tho part of
! the defendants and Mr. G oConor summed up Tor the
Thc Judge asked the Jury II il was their wish To have
/ The case submitted TO them 1t being oclocs
! The majority Of the jury expressed their desire 10
f,lish the case but d- y 81 lright having explained
the Court Chat owing anxiety Of mind dor1es-
ITO mstters, vac Impossible for hm to give the case
further consideration chat gentleman allowed
TO thdrew snd IL by consent was submitted 20 the
| rem, ming eleven Jurors
GHE ~ DGE 5 CHARGE.
the Imposition he had made OF various pouts Of Law
duing tne progress OF the trial iJ TO pre-
sent stey the question Of fact SO thoroughly bad it
been suiumes IN BY the counsel on beth sides that
what the Court had say would be to CONNIE nd che
sas to 5r eonsiaerstSn q The sEy to me end tha
not committed any error. that it nigte be conclusive
between the parties The business OF Insurance is
As the common burthens of the community APP
poruoned emong members AZ large so tba contrSc OF
insurance tends ~ soDe degree, TO apporslon the
losses wch occur by misfortune smong classes OF per-
sons who voluntarily assume the risk aud thus mig
fortunes which would Dc ruuous 20 indiv iuais, By
subdivision smong many tall Eighty upon the whole
The contract Of H. therefoe TO b regarded
with especial favor contract eminentiY assiu
ing 20 individuals who subjected TO losses aud yet
ezpgri' hows contract which upon the whole
sr are able by small pre-
collected froL rlaay, 20 make up the losses
tared by few Regarding tho contract % insurancs
With ayor the lega prnripss applicable TO arr such
we'll ctlc ulattd 10 and promo IT, sni
as the administrators Of the law osght &c make
such application Of hecs ptincple tho lsots in
any rase as shall have o like tendency This Is proper
ly dene by The application Ct the proper rys prioo
pies snd IN Such mapner that on ths one hLnd int
vidusl rest quietly Ia the assurance thai. ~ mis-
fortune shah visit thpri they shah not Be fle3 or De-
tested ny evasion, oFtrok. aaiarne-s ia
IN the otherhand that those sho farosss aud fair
deauLF have undrrtaen to indemnify against mifor
tunes may have The Ike assurance that they shall not
% p'fh Ecu ~ rruer w any Pfeludo ASieP eh'utA
ton, Unfair deiiug BY those whniD they insure and
especially that they shall be protected against any
fraud, or attempt 70 deiraud them 1910 o paymens
to which they not properly liable Tine bane6cit
effects OF che business o" insurance dep"nd therefore,
N an eminent degree upon reciprocal consh.Lco '"e
this rests in the like maouer good faith. Good
faith, therefore, beeoes essential othe subsistence OF
the contract o. insnianee ana he VINO SEEKS tee'y
cry is hound n honesty and fair dailns N bis inter
ccurse with the company with whom he has effected
ma inkurkuce Ana gentlemen you WI otai "a ntHd
that In respects the party insured holds the 10
sursrce company Tat disadvantage he bias the in
eured property In his own hands In regard 70 ITS de-
tells and its mapageme ct and disposition, he has the
control and according 20 the ususl cours9 OF busi
the company know very little On the subject,
except what they learn nom the assured or ha
agents lie has also 10 general ali the books. papers
and vouchers In his and under his control,
end not cnly the possession and control bot they
kept and made w lnder his direction and
the means of detecting even frauds, are very IN
J perfectly az the command % che company Zee
| sides this thu Representation Of the insured ale
very much relied and from sort OF necessity which
! rance company 20 protect thcmselseu without muen
rcionce on the party himself This necessity OF re
quirBg good faith Ia tser dealings has led 70 the in
corporation, in the policy itself q tho's ccnd,t.on'
which intended 60 eonre full and frank d.clo
sure, by the party insured, OF everything whch u
concrfNs The Insurance company 10 know ana espo-
pecisy 60 prevent the practice Of spy fraud ot impo
ticn 20 accom- hsh urjust recovery 30 Tar nv "
material 10 the under confederation. these oenai
lions require that the maze on eject
ipg the insurance should be true; that WHEN los'
occafr, The assured party shall forthwith give to tbs
company notice Of the loss 20 the end that they maj
be put upon their guard and may take such measures
10 investigate the oi IRE and the extent Of ds
mage - they nny deem prudent az well A. that heI
should see 20 the al position Of the property remain
Ing: that possible thrr.aiter the assured
snn urnish his proof Of loss, With detailed state
81 the nature OF the will admit With cash value
Of the articles nsurpd the manner the buildings ver'
ocouPro snd nov the hre oris'psted anG " nc ~
sprod sbsi he guilty ~ any fraud or false swearing IN
regard 10 The matter Of proof of loss his claim e. re
cover for the loss Be il more or lee, Is forfeited
These conditons-reasonsbl and proper cootiions-
cannot prevent man whose dealings are lair and
whose claims ere homestead eoaestly exhibited from
protect com pany against claims that frsudulent
" or fals'iy made up or dishonestly pursued The
dltions As understood tho csunssi 10 his address
he sisesims any allegation that che Ore itseli was
cured or caused by ar Mcmahon 4 man cannot re-
oover for loss from ara produced from BIS o~n
fraud or collision; but DO not understand counsel Go
claim this that he has oven attempted o prove 10
Ibe execution q The policy upon which tho action -
more OF less "a mage On the night OF the 9Th April.
1875, IL not disputed But question ". hoTevcr
rseed and the court Is asked to charge upon II and
Which s to be disposed Of independently OF the quea
lion arising on tbe abstract merits Of the claim and
which, the defendants correct ia tlolr view Il
claim that sdrsrI mswaSoS T. sSs real sf0 party Il
interest and undoubtedly II 60 the suit sbouid be
brought IN biz name. suit must be brought IN The
~ the real party In interest aud elso can
bring and suoo' ssiuily prosecute &c action But
scuutnen there 10 no proof that Mcmahon s the real
pas-y IN interest he assigned the claim, and n seem.
60 me that there T. nothing In the evidence that ic
pivea The plaintiffs Of The power to prosecute TIL,
suit But on the merits the defendanis Object that
the representations uaie upon eectng the insUrsnos
should be true and thst Mons whrn be insured
dii not only not disclose that Oh. building ans
70 appears be did according % the representation
emrisd IN the description Of the promises conla ned
IN the policy give the company O. understand thai
the building vas occupied by him exclusively lTh'
learned Judge here referred 20 the conditions q the
F0licyj The dcfudsnts said be. contend that there
ras delay IN makisF Sut the claim Ths court 70
corniscs the Law TO be that h there unreasonable
possible Tor Mcmahon TO make " sooner " does MOI
s'prive ths plaintiffs n their claim We have No
sufficient ptoof eves " counsel had made the claim
g. Justify the belief that Edsard Mcmahon has beer
guilty oi any maud collision IN this matter, or that
toe claim bling grossly exaggerated u ~ material fo
you. rnuemtn, 20 inquire what the aotus
amount Of loss' ~ exaggerated. was the overstste
ment honestly msfsvere the errors unintenti0Dsl
o. vas there intentional msstatsmenti what was
the encupt OF for assuring that II vas tsrlJ
and honestly msGe yet N the actual loss did not
amount ~ The whole n the Insurance the plaintiffs
can in DO eveRt. recover more than ratsabls pro
portion o. the Si7h0 insured by these deiendauta IN
the ratio Witch the whole loss bears 20 the whols
amount Of the insurance II thcte any sxaggcra-
ton Or over estimate of the amount Of loss in The pre-
liminary proofs wss II honestly aud uniBtsbtonaly
made or was done by design II " concetsc
that there errors; but " Il my duty - tell you
feutl'ns Of the jury hat mere errort. accident
ally occurring in an honest endsavcr o. state Tbs
trub 30 not defeat the plaintis claim; " he gave
the inform alton frding 60 the best means IN BIZ
powtr " docs not defeat the claim THE provision o
the policy only refers ~ intentional uisreprsseBtG
ton II here an Intentional Insertion OF a olau
for property vhi-h not 10 truth, the premises
such inaertion r.7 fraud Mchahon vas plsini'
Evllty 81 false swearing and he entitled 10 "a
vcrable consderAtlun and. by the terms Of the con
dition the claim upon the policy gone, aud th
plaintiffs are not entitled 70 recover THE iearng
judge here referred 70 The inventory Of the goods