[Columbian Insurance Company vs. Lawrence.] Fredericksburg, February 16, 1824. To the President, Directors, and Company, of the Columbian Insurance Company of Alexandria. Gentlemen,-We regret that we have now to inform you of the total destruction of our mill by fire, on the night of the 14th inst., which was insured in your office, the particulars of which we will forward you as soon as we can prepare the necessary documents, as laid down in the conditions accompanying the policy. LAWRENCE & POINDEXTER. The affidavit of the said Lawrence & Poindexter, with the certificate of Murray Forbes, was annexed. We hereby certify, that by the burning of our mill, situate on an island in the county of Stafford, about one mile from the town of Fredericksburg, and state of Virginia, called the Elba mill, four stories high, the walls of stone and covered with wood, on which seven thousand dollars were insured by us in the office of the Co lumbian Insurance Company of Alexandria, on the 9th day of April last, per policy No. 279, and which was destroyed by fire on the night of Saturday last, the 14th inst., we lost, or were damaged at least twelve thousand dollars, exclusive of the contents of said mill. We are entirely ignorant of the circumstances which occasioned the fire, and we further certify that we have no other insurance, directly or indirectly, on the aforesaid property, except the above mentioned. JOSEPH W. LAWRENCE. THOS. POINDEXTER, Jun. *Commonwealth of Virginia, Stafford County, to wit: Joseph W. Lawrence and Thomas Poindexter this day [*30 personally appeared before me, a justice of the peace for the said county, and made oath, in due form, that the above certificate contains the truth to the best of their knowledge and belief. MURRAY FORBES. I, Murray Forbes, a magistrate duly commissioned, in and for the county of Stafford, and state of Virginia, do hereby certify that I am acquainted with Joseph W. Lawrence and Thomas Poindexter; that the fire originated in their mill burnt on the night of the 14th inst. by accident, or without fraud or design on their part, as far as I know or believe; and that the damage or loss they sustained by the said fire is at least ten thousand dollars. And I further certify, that the said mill was not within thirty yards of any other building, except a cornhouse, which was about twenty yards off. MURRAY FORBES. The affidavits of Thomas Sedden and James Vasse, were anexed. I, Thomas Sedden, of the town of Fredericksburg, in the county of Spottsylvania, and state of Virginia, do hereby certify, that I am [Columbian Insurance Company vs. Lawrence.] well acquainted with the mill called and known by the name of the Elba mill, owned and occupied by Joseph W. Lawrence and Thomas Poindexter, situate on an island in the county of Stafford, about one mile from the town of Fredericksburg; that the said mill was built of stone four stories high and covered with wood; that between ten and eleven o'clock on Saturday night, the 14th inst., I was alarmed by the cry of fire, which I soon ascertained to be the mill aforesaid; that I have since viewed the ruins, and am of opinion that it would require at least ten thousand dollars to rebuild the same, and restore the proprietors in the situation they were in previous to the said fire; that I have no knowledge or idea how the fire originated. THOMAS SEdden. Commonwealth of Virginia, Stafford County, to wit: Thomas Sedden this day personally appeared before me, one of the commonwealth's justices of the peace of the county aforesaid, and made oath to the truth of the foregoing certificate, signed by his hand. MURRAY FORBES. *31] I, James Vasse, of the town of Falmouth, in the county of Staf ford, and state of Virginia, do hereby certify, that I am well acquainted with the mill called and known by the name of the Elba mill, owned and occupied by Joseph W. Lawrence and Thomas Poindexter, situate on an island in the county of Stafford, and about one mile from the town of Fredericksburg; that the said mill was built of stone four stories high and covered with shingles; that between the hours of ten and eleven o'clock on Saturday night, the 14th current, I was alarmed by the cry of fire, which I soon ascertained to be the mill aforesaid; that I have since viewed the ruins, and I am of opinion that it will require the sum of ten thousand dollars, or thereabout, to restore the proprietors to the situation they were in previous to the said fire; farther, that I have no knowledge whatever how the fire originated. JAMES VASSE. Commonwealth of Virginia, Stafford County, to wit: James Vasse this day personally appeared before me, one of the commonwealth's justices of the peace of the county aforesaid, and made oath to the truth of the foregoing certificate, signed by his hand. MURRAY FORBES. The plaintiff also gave in evidence the following extracts from the minutes of the proceedings of the insurance company in relation to the claim of payment for the loss. Friday, 20th February, 1824.-Lawrence & Poindexter. Claim made by them this day by their attorney, Anthony Buck, with the policy and certificates of loss by fire, on policy No. 279. On the application of Anthony Buck, leave is given to Joseph W. Lawrence and Thomas Poindexter to assign to William J. Roberts' policy No. 279, effected in this office, without prejudice to any defence which this office may have against the payment of the sum [Columbian Insurance Company vs. Lawrence.] insured, or to the claim of John H. Ladd & Co. under their attachment heretofore served on the president of this company. Saturday, 13th March, 1824.-Ordered, That the *secretary address a letter to John Scott, to require the title of Lawrence & Poindexter to the Elba mill. [*32 Thursday, 1st April, 1824.-The following papers were this day received, to wit: A letter from John Scott, Esq., Fredericksburg, covering copies of a deed from William and George Winchester to Joseph Howard and Joseph Lawrence; an agreement between Joseph Howard and Joseph Lawrence; and an agreement between Joseph Lawrence and Thomas Poindexter, Jun. Friday, 16th April, 1824.-In the case of Lawrence & Poindexter, Ordered, that a copy of the mortgage to the banks, proof of the execution of the contract between Lawrence and Poindexter on the day it bears date, and a copy of the notes in the bank be required. The Thursday, 22d April, 1824.-Lawrence & Poindexter. following papers were presented by R. I. Taylor, Esq. enclosed to him by Mr. John Scott, Fredericksburg :-Deed of trust from Joseph Howard and Mary his wife, and Joseph W. Lawrence, to William J. Roberts, for the benefit of the banks, dated 13th May, 1814. An agreement between Joseph W. Lawrence and Thomas Poindexter, dated 28th November, 1822. A copy of a note drawn by Howard & Lawrence, dated 10th March, 1824, to the Farmers Bank of Virginia, at Fredericksburg, for one thousand eight hundred dollars. A copy of another note, dated 5th March, 1824, drawn by the same, to the Bank of Virginia, at Fredericksburg, for four thousand one hundred and eighty-seven dollars. Saturday, 26th June, 1824.-Walter Jones esquire's opinion having been submitted to a called board this day, on motion of Mr. Mandeville, it was resolved that the claim of Lawrence & Poindexter be resisted, and that the secretary furnish them with a copy of this resolution. Wednesday, 11th November, 1824.-Will the board now enter into a compromise with John Scott, Esq. for the claim of Lawrence & Poindexter on this office, it being perfectly understood that an agreement to enter into a compromise is not to be considered as an admission of the claim? Yes. Thursday, 18th November, 1824.-The board having duly [*33 considered the case of Lawrence & Poindexter, decline making any compromise at this time, and the secretary is directed to inform Mr. Scott of their determination. Friday, 10th December, 1824.-A communication from John Scott, Esq. of Fredericksburg, was received; whereupon it was ordered that a board be called for to-morrow at twelve o'clock, to receive said John Scott's proposals for an arrangement in the case of Lawrence & Poindexter. Saturday, 11th December, 1824.-On application of John Scott [Columbian Insurance Company vs. Lawrence.] Esq., it is agreed to receive propositions for an arrangement between John Scott and this office, in the case of Lawrence & Poindexter, without prejudice to either of the parties concerned. John Scott, Esq. has this day proposed to settle his claim against this office by receiving from them fifty cents in the dollar in full for said claim. Will the board now agree to pay said Scott fifty cents? They will not. The opinion of Walter Jones, Esq., counsel of the defendants, referred to in the minutes, was as follows. "Claim of Lawrence & Poindexter, stated by the Columbian Insurance Company of Alexandria. "An equitable title in general is doubtless an insurable interest against fire; but it seems that the interest in this case was so incumbered with liens and precedent conditions, as to make the legal estate not worth the calling for on the part of the insured; whilst, on the other hand, their circumstances were such as in all probability to make any suit against them, for a specific execution of the contract, or for compensation for damages, fruitless and unproductive; so that, to any practical effect or purpose, the insured were unable to call for the legal estate by performing the contract of sale, and, consequently, the vendor had no motive to throw the legal estate upon them by a compulsory execution of such contract. How the insurance may be affected by such a state of facts, is a question entirely at large, and undetermined by authority; and if there were any insurable interest, it might be matter of serious doubt, under the peculiar circumstances of the property and the parties, to what *degree the general terms in which the description of the estate *34] to be insured is given, (unlimited by any specification of the quality of the estate, or of the value and quantity of the interest) involved misrepresentation or concealment. "Whether in the description of a stone building covered with wood the gables be necessarily understood to be a part of the masonry, is a question of art belonging to architects or house-builders, and depending upon the common use and understanding of the terms connected with that art. How upon these principles would a contract to build a house of brick or stone covered with wood be understood? would the undertakers be bound to run up the gables with brick or stone? If that question be answered in the affirmative, (as I am informed, and indeed have no doubt it should be,) then the omission in this case, to disclose the fact of timber gables, is a concealment of a material fact; and the unqualified description given of a stone mill, a material misrepresentation which avoids the policy. W. JONES." The plaintiff also examined witnesses relative to the proceedings of the board, from which, as well as from the facts stated in the minutes, he claimed to infer, that if there was a defect in the preliminary proof, the same had been waived by the representatives of the insurance company. This evidence, so far as it was by the Court considered to affect or influence the law and merits of the [Columbian Insurance Company vs. Lawrence.] case, is sufficiently set out in the opinion of the Court. After this and other testimony to the same effect had been given, on the part of the plaintiff, the defendants' counsel objected to the admissibility, competency, and sufficiency of the same, and of all or any of the facts thereby proved; admitting the same to be true as above stated; to entitle the plaintiffs to recover for the loss stated in the declaration and proved by the evidence; and the grounds of the said objections were specifically stated as follows: 1. That the interest claimed by the plaintiffs in the property insured, as disclosed by such evidence, was not at "the respective times of effecting the insurance, and of the happening of the loss, an insurable interest and property. [*35 2. That it was not such an interest as is described in the original offer of the plaintiffs' agent for insurance, and in the policy, nor such as is averred in the declaration. 3. That the said documents, produced as preliminary proof of loss, do not import a fulfilment, on the part of the plaintiffs, with the terms and conditions upon which the loss is declared to be payable by the ninth of the said printed proposals, or rules annexed to the policy. And the counsel for the defendants thereupon prayed the opinion and direction of the Court to the jury, that the said evidence was not admissible, competent, and sufficient to be left to the jury as proof of the plaintiffs' title to recover for such loss in this action. Which instruction the Court refused to give, being of opinion, 1. That the interest of the plaintiffs in the property insured, as disclosed by the said evidence, is a sufficient insurable interest to support the policy, and the averment of interest in the plaintiffs' declaration in this action. 2. That it is such an interest as is described in the original offer for insurance, and in the policy and in the declaration; and, 3. That, although the said certificate of Murray Forbes is not such a certificate as is required by the said ninth rule annexed to the said policy, yet the evidence aforesaid is admissible, competent, and sufficient to be left to the jury, and from which they may infer that the defendants waived the objection to the said certificate, and to the other preliminary proof aforesaid. The counsel for the defendants below took a bill of exceptions to the refusal and opinion of the Court. The defendants then gave evidence of the nature and particulars of the property insured, that, in a policy of insurance upon the same property, by the Mutual Insurance Society of Virginia; Lawrence. & Poindexter had described the property differently, stating it to be "covered with wood; gable ends of the roof of wood ;" that Lawrence & Poindexter *were insolvent; and that the property had greatly depreciated in value; that the title to the property was embarrassed, and litigated in chancery; that the property thus encumbered was not worth the purchase, and that the assured [*36 |