Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1897-03-19


doned We shall not, therefore further
consider that feature OF the case. The
prayer FOR an account should not have
been granted. An order OF reference Is
not awarded 10 enable n plaintiff TO his
case. until II has been ascertainod that
a plaintiff has right TO demand II.
"The law IS well stated In Barton's CHI.
Pr. Volume 2 at page 60: The settled
rule IN respect 20 orders Of reference Il
that before an application for one shall
be granted, II must appear with reason
able certainty that an order VIII be nee
essary. and IL will not be made upon the
suggestion that In some contingency one
viii be required; for it will not do 70
put the defendant 20 the trouble and eN-
pense OF rendering an account until 1t -
ascertained that the plaintiff has the
right TO demand f.; nor will reference
be made for the purpose of furnishing
evidence in support OF the allegations OF
a bill"
The opinion says that the lower court
erred in entering the decree for an ac-
count. and without passing upon any
other question, reverses il.
SuIphur-Mines Insurance Suit.
The case of the Sulphur Mines Com
pany against the Phoenix Insurance
Company was decided yesterday, and
the opinion was prepared by Judge
Keith. The case came up from me Law
and Equity Court Of the city or klch-
mond. and the Judgment Of this tribunal
was affirmed. The sulphur Mines COM
pany sued the insurance company upon
a policy Of insurance for 8. lS2.o3. as
damage sustained by it because or the
destruction by fire Of certain property
insured in the defendant company.
The policy contains the following pro-
vision: This policy Is null and Vold
II the property hereby insured, or any
part thereof. is mortgaged or otherwise
encountered. either prior or subsequent
Of date thereof, unless consent to same
IS endorsed hereon by properly-autho-
rized agent of this company"
In evidence brought out at the trlal
il appeared that the property was en-
numbered at the time Of insurance ana
Of the fire by a deed Of trust 10 Eugene
Kelly and Isaac Davenport, Jr., TO Sc
cure 300 coupon bonds Of the plaintit
company, valued at $1,000 each.
The Sulphur Mines Company nitro
duced evidence tending to show that us
officers and agents had never noticed
this provision in the policy until al'er
the loss: that It bad policies written III
p number Of other companies, only one
OF which objected to paying the loss
assessed. that the insurance was placed
by stakeholder and director OF the
plaintiff company, who states tnat ne
mad often insured property for railroads
and other large corporations IN conlpa-
MOS which he represented without ell
Grating the condition against encupl-
brances in the policy at all not ueein-
ing il necessary to state the amount III
volume of the several mortgages usuailE
resting upon such corporations, but ne
could not state that such was the haDll
of the defendant company.
SOME or THE TESTIMONY.
Mr. Moore. for the defence, testified
that ne was agent for the Phoenix COM
many when the policy sued on was Is
sued. and that he had no knoWledse ol
tba decd of trust when the policy -
sued and that his first intmauoh was
when the proofs Of loss were maze oul.
He also stated that in case Oh IA So
corporations, it was usual TO ask VIZ
Their or not there is a mortgage Oh 'ne
nronerty." lie further states that nc
had been informed at the UNI 'Ne
policy was issued that theie WaS d
deed NJ trust. it would have maze no
difference except that the loss Would
49, been made payable 10 the trustee
that all the facts would have been com
municated to the insurance COMPANY >
and II would have decided WheIher VI
not TO issue the policy. ..,o,,
Tba law requires that ''in any actloIi
AGAINST an insurance company Ioullueu
o.7 a policv issued after July j. DO no
foilure TO perform any condition oil INC
noIicv. nor violation OF any iestil
nroVisions thereof, shall DE Ndllu W
fence TO the action, unless apPeal9
that such provisions are printed III W.
as large or larger than that khoWH "a 10
long-primer, or written III lin Ia ''
policy" .,,..o, before u
.-.n,o6 Underwent for the defendant
..1,hat Judgment is before us Tor re-
view" saws Judge Keith, upon Ger
ti6cate Of evidence, and 1t Is 10 De con-
sidered under the law as a demurrer 10
80 o,idence. Every presumption Is IN
,1,or of it's correctness, ana IL cannon
- disturbed. unless error therein 10 lhe
,,retudice of the plaintiff in error De maze
10 appear upon the record.
THE Judgment was affirmed.
rIIett vs.. McGhee.
r. tho emit of Elicit against McGhee'
linton was rendered by Judge Johh
A. Buchanan. $780,, q, r,tororco
NcGhee sold lot Of land IN tloIenee,
80 w Borst, who executed TWO
,,otos 70 McGhoe payable at uliIel .H'
1ates an account Of the purchase price
-, interest in the land. Borst SUD
o-''',,tI,, sold and conveyed the lahd 10
% ,,,,,.uants A. J.. Elicit ana i. -.
T,'t,,nn who. with their wives executor
d, MORTGAGE upon IL to BorsI Inc uioi
80 was foreclosed Ia a SUIT III M
st9ta Of Alabama, the lahu SOU ~ %.
tbe proceeds were not suiiiclenI - 'N'''A'
the prior lien. .,,t+ aoairet
Then McGhee brought SUIT dsai ~
Rorst and the appellants 10 - - NJ.
o,,t ,rbe anpellants demurred and an
-oe,1 he bill and the Court rendered
100 against them for the amount
q" ,t,,,1d nv the appellee. From thtI ue
cree this appeal was allo"eu'
An interesting Will Case.
rrdge Cardwen prepared and del l'..,'.a
NJ NOS exhaustive and comp
eninion In the case Of Chea'haIl' g.
seainst Cover and others, nom inc T T
c,,it court of Chesterfield county -
was an appeal from decree Oh t'e ~
named. involving a constr uV'.O' n
drst clause Of the VIII OF Mis' an eol
Hatcher deceased, when I'@US 90
lows: ~ \, Cheatbam
a,,ine his life my mansion-house ana o0l
ecr r7 of land, including my mill ana inc
Land known as the Burford tract ana a'
his death to his surviving children.
A brief explanation of this case Is tha'
after Mrs. Hatchers death one child was was
horn TO +. NJ Cheatham, two OF ms
children died, and one married COVER
and She died, leaving a child. After TINS
Cheatham died, and action wss brousA'
IN recover for the Cover child ITS mo-
Tiers part OF the property. After pass
ing upon several points, and referring 10
many authorities on wills, the court say
I'VE are OF opinion that according 10 the
trne INTERPRETATION of the FIST clause OF
Mrs Arm f. Hatchers will, all Of the
children Of T. NJ Cbeatham, including
those born after the tcstdtriX's death
who were living at his Ct. NJ. Cheatbam' 81