text:
    No. 10,222.
    Succession of Louise Mathilde Lehmann.
    1. Enquiries touching the legality of an executor’s appointment cannot be raised by a purchaser of property of the succession at judicial sale, under an order of court apparently regular, and for the purpose of discharging debts of the deceased and costs of administration.
    2. While actually exercising the office of -executor, he must perform its duties, and the illegality of his appointment will not vitiate his acts.
    3. Purchasers at succession sales are not hound, at their peril, to enquire when the property is advertised by an executor, whether tho will appointing him, which is valid on it-face^ is voidable.

      4. "When a succession is in the hands of an executor and in process of liquidation, th.e interest of the heirs being merely contingent, they need not be consulted, or heard, before a* application for sale is made, as a condition precedent to the validity of the title of a purchaser.
    .L When the poceeds of a sale made by an executor to pay debts are not greatly disproportionate to the debts, the sale will not be annulled.
    6. Acts of procuration under private signature become authenticated when attached to and form parts of judicial proceedings, or are incorporated in an authentic act.

      APPEAL from tlie Civil District Court for the Parish of Orleans. Monroe, J.

      Frank X. Blotter, for the Testamentary Executor, Plaintiff and Appellant.
    1.Where there is satisfactory proof of existing debts approximating the appraised value of ; the property belonging to the estate, and the movables are totally inadequate to disehargo the debts, it is the duty of the executor to apply to the court for an order to sell the mova- . hies and immovables, to pay such debts. Particularly is such an application and order 'appropriate when the. universal legatee joins the executor and expressly requests and consents thereto. C. U. Arts. 1668, 1669, 3670, 1164, 1165 and 1166. O. P. Arts. 9S3, et seq.

    2- No attorneys for absent heirs need he appointed in a testate succession where there are no forced heirs andwhonall the estate after payment of debts, is. hequeated to a universal legatee. 12 La. 73; 15 La. 527; 2 Ann. 206; 3 Aim. 226.
    3/ A purchaser, in good faith, at a judicial sale of succession proporty, made under an order of a court of competent jurisdiction to pay debts is fully protected.by the decree ordering the sale, secures a perfect title, and lias no concern or interest in raising any question either as to the validity of the will, the reality of the debts, the rights'of heirs, or the regularity of any proceedings had in the succession preceding the order of sale. 8 La. 424: 18 La. 436; 15 La. 182. 2 Ann. 466; 15 Ann.250; 18 Ann. 485; 27Ann.563; 28 Aim. ' 755. 2 Peters: U. S. K. 168; 10 Peters, 445; 1 Wallace, 684.
    4. All informalities in probate proceedings for the sale of land are prescribed by five years, •and, therefore, all defects in the powers-of-attorney complained of by Mrs. Domecq, are- or soon will be, cured by proscription. 21 Ann. 584.
    5. In the exercise of its equitable powers, the court may well grant a reasonable delay to en. able the executor to have such powers-of-attorney duly authenticated.

      Alfred Grima for Defendant and Appellee:
    1. A will made by a minor, under sixteen years, is null. C. C. 1476; C. N\ 908; 1 Demolombe. Don. p. 439, sec. 410; 3 Marcadé, p. 395, sec, 493; 11 Laurent, par. 143, 146.
    2. The doctrine of the protection of purchasers in good faith, by the order of sale in matters of judicial sales, do'es not apply to t-liis case;,the illegalities in the title offered are set up before payment of price or entering in possession, and must ho adjudicated upon by the court. 36 Ann. 422, succession of Weber; 9 Ann. 560; 11 Ann. 109.
    3.- ‘An act of xirocuration for the sale of immovables in Louisiana, which procuration was acknowledged before one style an Alderma/n in Pennsylvania, and without a single wit- • ness to the act or acknowledgement, lias no effect as an authentic act m this State. C. C. 2234; 39 Ann. 1050, Leibe vs. Hebbersmith and cases cited.

      4.1 An act of procuration for the sale of immovables in Louisiana, executed before a notary in •« Germany, and without any witnesses to the same, has not the effect of an authentic act in Louisiana. C. O. 2234: 34 Ann. 84; Story Conf. of L., sec. 435. . .

      5. Tlie remark in tlie appellant’s brief that there will be five years on tho 17th of December, from the date of the most recent said procurations, is not a plea of prescription, and even if pleaded, prescription of five years could not confer title to an immovable.

      Jerome Meunier and Chus. h\ Claiborne on tho same side.
   Tlie opinion of tlie court was delivered by

Watkins, J.

Three of the purchasers of immovable property at succession sale, resist a ride taken upon them by the testamentary executor, to compel their compliance with the terms of adjudication and acceptance of title.

Their objections are: 1st. That the testament of tlie decedent is absolutely null, because she had not attained the full age of sixteen when it was made, “and, therefore, the appointment of the executor in said will, and all proceedings founded on same, as well as the, confirmation of said executor, are null and void: ” 2nd. That there are heirs of tho deceased who are absent from the State, and not represented therein, who have an interest in contesting the validity of said testament, and who are not'made parties to the proceedings ancillary to the sale. 3rd. That the’amount of property sold was considerably in excess of the debts of the succession and the sale was unwarranted and illegal.

In addition to the foregoing defenses which are common to all, tile-respondent, Mrs. Adele Domecq, urges that the piece of property which was adjudicated to her was previously purchased for the deceased testatrix through “certain judicial proceedings” in the Civil District Court, and the title was passed before a notary, in which the vendors were ostensibly represented by attorneys in fact whose procurations were not authentic in form, and did not furnish complete evidence of their sigy natures.

For all of these reasons they insist that the profferred titles are not good.

I.

In regard to the first objection the facts are these: .Louise Mathilde Lehman died, leaving a will in which she instituted Widow E. H. .Lehman her universal legatee, and appointed Paul Lacoste. testamentary executor. The will was duly probated and letters testamentary were issued to the testamentary executor. An inventory was taken, and the property appraised at $4500.

On showing to the court the existence of about $3000 of .debts due by the deceased,, in addition to the costs and-expenses of administration, a nd that- he had no funds to pay same, the executor represented that-a sile of'the movables, and so much of the immovables of the estate as would meet ifud pay the same, should be made, and the judge so ordered.

In the petition of the executor the universal legatee joined, alleging that she possessed no means with which to pay the debts and charges against the succession.

Conceding for the argument that the testament is null for want of capacity of the infant testatrix to brake it, this objection goes merety to the capacity of the testamentary executor.

Then, we have for answer this question : Can a purchaser of succession property at judicial sale, made under an order of court, on the joint petition of a testamentary executor and universal legatee, showing an apparent necessity therefor, in order to meet and discharge the debts of the deceased, and the cost and expense of administration, urge the nullity of the testament appointing the testamentary executor as a reason for her non-acceptance of the tendered title.

■ We think not; for it has been held that “enquiries touching the legality of a syndic’s appointment are-irrelevant” in an injunction suit by the heirs of an insolvent against an execution of a twelve months bond. Say the court: “ While actually exercising the office he must perform its duties, and the illegality of his appointment will not vitiate his acts. ’’ Cloutier vs. Lemée, Syndic, 33 Ann., 307.

It has been held to be' “ elementary that the mere illegality of the appointment of an administrator will not vitiate the acts done under it. ” Say the court: “ This is so true that the law will not allow a suspensive appeal from a decree appointing such officers; but it declares that such decree shall have immediate effect notwithstanding the appeal, and, therefore, regardless of the legality or illegality of the appointment.” Succession of Altemus, 32 Ann., 367; Succession of Dugart, 30 Ann. 268; 21 Ann. 543; 10 Ann. 670; 5 Ann. 156, 161; C. P., 1059, 580.

Not only is this general proposition sustained by ample authority, but it has been applied to this particular class of cases; for in Green vs. Baptist Church of Shreveport, 27 Ann. 563, the case was stated thus:

“ Plaintiff claims that her birth destroyed her father’s will; that^the executor became thereby without power to act, and that the sale made by him conveyed no title. It is in evidence that Robert Green died insolvent. It is admitted that the proceeds of the property went toward the payment of his debts.
Prima facie the title acquired by the purchaser was a good one. The» property liad been sold under’ an order of a competent court, made at the instance of one apparently qiithorized to apply for it. The records of tlie country showed that the executor was exercising the functions of his office at the time he asked for the order of sale.
“ Purchasers are not bound, at their peril, to inquire when property is advertised for sale by an executor, whether anything has occurred outside of court to destroy the will while he is acting. ”

It is equally true that the purchaser is not bound t.o institute enquiries into the validity of the will appointing the executor, nor into the capacity of the testatrix to make the will, when it is valid on its face.

In succession of Condon, 28 Ann. 755, the court said of a purchaser of succession property who was ruled to accept the proffered title :

“ It is well settled that under such circumstances the purchaser gets a good title, all incumbrances being transferred from the thing sold to the proceeds which are under the control of the court. Appellant lias, raised objéctions, and discussed matters in which he has no interest.”

The defendants in this suit occupy just the same situation. The testamentary executor was appointed in a testament which was apparently valid, and which was formally executed and probated. An order of sale was petitioned for by him, and the universal legatee named in the will, and same was granted by the judge, directing a sale of the property of the succession to pay its debts and charges. Thereunder a sale was made, and the property adjudicated to the defendants, in separate parcels. The alleged vice in the will might divest the title of the universal legatee to the residuum of the proceeds of sale, but the consequent illegality of the executor’s appointment cannot affect the title of property sold, and constitute the purchaser one in bad faith.

II.

In this case it is a fact conceded that the deceased left no forced heirs, and it is only contended that there are some collateral relations, who are absent from the State and unrepresented therein, and who were necessary parties to the proceedings antecedent to the sale.

It is not suggested that absent heirs have any higher rights than those who are present, or represented ; nor that collaterals have aDy higher rights, or are entitled to other notice that are forced heirs. They stand on a level.

We said in Succession of Hood, 33 Ann. 46. When a succession is in the hands and under the control of an executor, or an administrator, and is in process of liquidation, the interest of the heirs, minors or majors, being merely contingent, deduelo cere alieno, neither must bo consulted, or heard, before an application is made by the succession representative, as an.essential condition precedent, for the validity of an order of sale to pay debts.”

This doctrine is sanctioned in repeated decisions of our predecessors, and is settled law. 24 Ann. 530; 15 Ann. 675; 19 Ann. 528; 18 Ann. 496; 28 Ann. 269. Hence the mere absence of the collateral heirs of the decedent did not cifect the validity of the sale. If a sale of succession property could not be effected without the presence and concurrence of the collateral kindred of a deceased insolvent, the recourse of his creditors would he poor indeed.

III.

The third ground of defendant’s objection is not well taken. The proceeds’ of sale are not seriously disproportionate to the debts of the deceased, and the costs and expenses of administration. The total proceeds of sale are $5085, and the debts and charges are $3595 24. The excess of proceeds is $1490.

In the estimate of expenses of sale the cost of advertisement is not taken into account; iior are the future costs of final account and settlement. How was the executor to know that the property would bring at sale $600 over and above the appraisement, as it did ? He could not-Under the circumstances the excess is trivial, and does not vitiate the sale.

Succession of Dumestre, 40 Ann. 572, is not applicable. In that case the value of the property sold was $21,000, and the debts aggregated $10,000 or less. Minors had a half interest in the property. We viewed it as a partition proceeding in disguise, without the prescrided forms of law having been attended to, and that its covert purpose was to divest illegally, the title of the minors.

IV.

The complaint of the acts of procuration is not well founded. According to defendant’s own judicial admission in her answer, the decedent’s deeds were the offspring of certain judicial procedings through whicli her title was evolved. They certainly authenticated the powers of attorney, and same cannot now be questioned. 3 Ann. 268; 32 Ann. 264,

The judgment appealed from is erroneous. It is therefore ordered and decreed that the judgment appealed from be annulled and reversed ; aiid it is now ordered that plaintiffs rule be made absolute at defendant’s cost in both courts.


source: Caselaw Access Project

author: McEnery, J.

license: Public Domain

text:
    No. 10,298.
    Mrs. B. Hauch vs. J. Hernandez et al.
    ¿porcelain factory in the city of New Orleans took fire which communicated to an adjoining saw mill and destroyed it. Held that it was negligence on the part of the owner of the factory to leave the kiln unattended and unguarded from the time they ceased feeding the fires, when the heat was 3000 degrees Farenheit until the lciln cooled, which required IVoiq 12 to 15 hours.
    A porcelain factory or a furnace of any kind requiring a great degree of heat in its operation is dangerous to adjoining properties and requires a decree of care in its management, proportionate to the danger.
    APPEAL from the Civil District Court, for the Parish of Orleans, Voorhies, J.

      Henry L. Lazarus for Plaintiff and Appellee.

      H. Howard McGaleb for Defendant and Appellant.
    1. A suit tiled on the 24th of November. 1887, to recover damages for a guim-oftenee, alleged to have been suffered on the 25th of November, 1886, though not prescribed, is a stale claim (40 Ann. 65), subject to an unfavorable suspicion, requiring peculiarly strong and conclusive testimony to sustain it. 39 Ann. 685; 35 Ann. 1007 ; 5 Ann. 141; 7 Ann. 555; 14 Ami. 317; 2 Story's Bq. Jurisprudence, section 1520.
    2. Without fault there can b.e no liability for a (/‘««si-offence. Laurent, Tome 20 No. 464; 24 Ann. 1: 11 Ann. 711; 15 Wall. 539.
    3. In a suit brought by plaintiff to recover damages for the value of buildings destroyed by a fire which originated on the adjacent premises of defendants, the burden of proving negligence is upon the plaintiff, and in case of doubt defendant must be held blameless. ladubio reus absolvendus. 2 Troplong JGchauge et Louage No. 365; ATarcadé, Tome 6 III. ]>. 466'; Laurent, Tome 25, No. 306, et. seq.: Nicolet, Caen, 27 Aout, 1819, S. V. 2, 257; Lahume, Pau, 6 Juill., 1825, S. Y. 26, 2, 5; Promont, Nancy, 19 Juill.. 1825, S. Y. 26, 2, 179, I’hénix, Gourde Cassation. 18 Déo, 1827, S. Y. 28, 1. 44; Taruaud, Limoges. 23 Nov. 1838; S. V. 39, 2, 405.
    4. The fact that a fire originates in a neighboring house does not create a presumption of negligence or imprudence on the part of the owners or occupants : but on the contrary, it is presumed that every one is diligent and attentive in caring for and protecting his own property from injury and loss. Tncendium quod oritur in domo próxima trahitw’ ad levinsiman culpaminhabitantium, de qua vicinus non tenetur, pareeque chacun eat présmné diligent á conserve!* son bien, sea effets. ot d’ailleurs nee aflicto danda es apictio. Duran-ton. Tome 17, No. 105; Durand, Grenoble. 22 Janv., 1824, S. Y. 24, 2, 299; Toublant, Paris. 27 Janv., 1824. S. Y. 24. 2. 298; Feuillet, Cnur de Cassation, ler Juill.. 1834, S. Y. 34, 1, 559; Duviae, Poitiers. 10 Juin, 1819. S. Y. 24, 2, 301; Prim. Grenoble, 17 Janv., 1823, S. V. 24, 2. 297.
    5. The common law upon this subject coincides with the above principles deduced from the Louisiana Code, the French Code, commentators and Jurisprudence. Blackstone, book I IT. "228 n [9]; book I,M31; 37 Barb. 15:22 Barb. 619; 44 Barb. 424; D ATetc. 460; 8 John. 422; 18 Me. 37: 70 X. C. 596; 62 Ale. 289.
   Tho opinion of tlie Court was delivered by

McEnery, J.

Tlie plaintiff brought this suit against the defendants for $7000 damages, the value of a saw mill destroyed by fire, which originated in the porcelain works of defendant and' communicated to the property of plaintiff, which- was adjoining. The suit is brought under Articles 2315, 23H>, 2317 of tlie Civil Code. The plaintiff alleges gross negligence on the part of the defendants in the construction of the kiln, and surrounding the same by wood work, and that the defendants wore negligent in not having said kiln and the furnace sufficiently guarded by watchmen, skilled in their business. That the fire which destroyed her property was the result of gross and criminal negligence upon the part of defendants and their employees in neglecting to take the proper and legitimate precaution in the construction, maintenance and repair of said kiln and in conducting the same by skilled labor, by which negligence and fault of defendants she has been damaged to the amount of the sum claimed in her petition.

The facts as disclosed by the record are that, plaintiffs’ saw mill was destroyed by fire which was communicated to the same by a fire which originated in the porcelain works of defendants on the morning of the 25th of November, 1886, at 5 o’clock in the morning.

The City Council had authorized the defendants to construct and operate the porcelain factory. The. frame woodwork was about ten feet from the kiln.

The decree of heat necessary to bake the ware manufactured by defendants was 3000 degrees Parenheit. At the maximum heat for baking the porcelain the fires are stopped. It requires from twelve to fifteen hours for the kiln to cool. After the kiln had been cooled, the doors are taken down so as to get at the baked ware. The kiln requires constant attention until it has cooled in order to prevent a destruction of the kiln by the intense heat, arid the danger of fire to surrounding objects by radiation.

On the 24th the feeding of the fires ceased at 11 o’clock. At 3:30 a* m. of the 25th the doors were taken down and some bricks placed on the outside to cool. At 4 o’clock the watchmen left the factory. The foreman retired to his bed, where he remained until awakened by the firemen. The fire alarm was sounded a short time before 5 o’clock, and the firemen were on the ground about 5 o’clock.

The. kiln was well constructed, being laid inside with English fire brick and on the outside with the best of country brick. It had been reconstructed with the best of materials. The equipments for extinguishing (ires were about the premises, although the proof is that a part of this equipment was out of order.

The damage suffered by plaintiff is shown to be five thousand dollars. Eor this amount there was judgment for the plaintiff, from which the defendant appealed.

The defendants in the construction of their works seem to have done ¡til that, was requisite anil necessary for the protection of their own and their neighbors’ property. They were authorized to erect and operate the factory by the City Council of New Orleans. They were in the pursuit of a lawful occupation, and having adopted all proper and improved methods to prevent fire and to extinguish the same, they could not be held liable without proof of negligence, or omission on their part to use the improved methods in their premises, or the negligence on the part of their servants entrusted with the care and the management of the same.

A porcelain factory, or a furnace of any kind, is dangerous to adjoining properties, and a decree of care in its management is required in propation to the. danger it threatens.

The evidence is conclusive that the lire originated in the wood work near the kiln, not more than ten feet from it. It burnt through the sides, and rapidly enveloped the. factory, and set fire to the saw mill. It is evident that the ft re came from the kiln. There, is no other hypothesis, except incendiarism to account for it. This is only a conjecture and must give way to the circumstances which point directly to the origin of the fire from the kiln.

It is shown that the greatest care and watchfullness are required about the kiln from the time of ceasing feeding the fires, when the mouths of the furnaces are closed and the heat is at its intensity, until it is cooled. This is the danger point — and it continues, lessening by degrees until the fire is completely extinguished by gradual cooling.

Tlie fire feeding ceased at 11 o’clock, on the 24th, when the mouths of the furnaces were closed, and the doors wore taken clown at 3 or 3:30 on the morning of the 25th November, 1886, after which the watchmen left the factory. One of them was an inexperienced hand and had never been employed before that time in attending a furnace. His employment was only temporary, during the sickness of the regular fireman. In a very short time after these employees had left and the foreman retired to his room the building was on fire. When the firemen reached the building there was no one about the kiln; and there was no one up and about the factory. A mere statement oí these facts shows great negligence on the part of defendants, in failing to have the kiln and furnace watched and guarded by experienced employees from the time the firing ceased, until it cooled, and in taking the doors of the kiln down at a time when there must have been great heat within it. At this critical time it was abandoned by defendants employees. The defendants are responsible in damages for the injury’ sustained by plaintiff in the destruction of her saw mill. The evidence seaports the judgment ap-' pealed from. R. C. C. 2315, 2316, 2317.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 10,384.
    Mrs. W. W. Carre vs. City of New Orleans.
    A suit brought for the collection, of city taxes, after the adoption of Act 117 of 1884 and in which the right of action is excepted to, is considered as abandoned, when the city, proceeding extra judicially under the provisions of that act, advertises the property for the payment of taxes due thereon, and cannot serve as a basis for an injunction to arrest the advertisement and sale.
    It does not constitute Us pendens which implies the co-existence of identical suits. The proceeding under A ct 117 of 1884 is non-judicial proceeding', and not a suit.

      Res judicata does not result from judgments to which the person against whom the ideáis levelled was not a party. Neither is it such, when the thing demanded and passed upon is not the same.
    The exemption, accorded by Act 207 of the Constitution, does not apply to property employed fortlie manufacture of articles of wood which are nob ready for immediate use, such as cabins and plants, without further manipulation or labor on them.
    It extends to property employed for the manufacture of doors, sashes and blinds, which are considered as articles of wood within tlje meaning of the Constitution.
    In the absence of sufficient proof to establish the capital, machinery and property thus employed, the court cannot finally adjudicate on the controversy, and will remand the case.
    APPEAL from the Civil District Court, for the Parish of Orleans, Rujhior, J.
    II'. *S\ Benedict for Plaintiff and Ax>pellee.
    IP. II. £h»i,))i:'n'illr, Assistant City Attorney for,- Defendant and Appellant.
   'Phe (>x)inion of the Court was delivered by

Bermudez, C. J.

The purpose of this suit is to have it judicially declared, that certain property — a, wood factory — of the plaintiff, advertised for sale by the city for the taxes of 1882, said to.be due thereon, is exempt from taxation, under the provisions of Article 207 of the Constitution.

The x>retensious of the plaintiff form the basis of an application" for an injunction.

The grounds substantially set forth, are :

1st. That the property assessed and advertised for sale, was used ¡is a manufactory of articles of wood, wherein more than five hands are and were employed in 1382, and which was therefore exempt from taxation under the article cited.' (207)

'2d. That the city had entered suits for the same taxes, which had never hoc» decided.

3d. That the property in question has already been adjudged to he exempt from taxation.

The prayer is, that the assessment, the tax, etc.., be annulled and can-celled, and'that the injunction be perpetuated.

The answer was a general denial.

From an adverse judgment the city has appealed.

In our investigation we shall invert the grounds on which the suit rests.

I.

The plaintiff pleads that suits were brought by the city, for the same taxes, and that the same are undetermined.

No doubt, the record shows this to be the fact: but th^t circumstance cannot deprive the city from proceeding to the advertisement and sale of the property, as she has attempted to do, under the. authority of Act No. 119 of 1882, -“

The suits were brought after the passage and promulgation of this act,,') the object of which was, to carry out the provisions of Articles 210 and 218 of the Constitution, prohibiting judicial proceedings for the oollec.-/ tion of taxes.

In the absence of such legislation, the city would have had the right of suing for the taxes, for the constitutional articles were not self operative, as has been decided. City vs. Wood, 34 Ann. 732.

To those suits, the defendant pleaded expressly this act of 1882, in bar.

The exceptor had the right to have the exception fixed and determined.

By not availing herself of that right, and by bringing an action in which the validity of the defence is averred, the defendant (plaintiff here) has waived the same.

Had the exception been tried, it would have been sustained; but the defendant would have found herself thereby in no better predicament than she is in to-day.

The city had a right to acknowledge by a formal act the validity of the defence, and to relinquish the proceedings objected to.

Advertising under the provisions of the act of 1882, was a virtual recognition of the irregular and improper institution of the suits, and a formal abandonment of them.

The proceedings of the city, under the act, is not a judicial proceeding. It is essentially non-judicial.

If such be the case, how can the pendency of the suits be set up as Ms pendens, which is a jilea to a suit, a judicial proceeding, by reason of previously instituted similar one •?

Besides, the existence of such undetermined suits can form no basis for an injunction to arrest the sale of the property, the moment that the costs of the proceedings are not claimed along with the taxes.

z. It is, therefore, clear that the plea of lis pendens is devoid of merit, and is no foundation for the relief sought.

II.

The next plea is that of re.<s judienta, as resulting from two definitive judgments.

An examination of one of the cases in which it- is claimed that the property was declared to be exempt, shows: That the citj was not a party to it; that the, suit was brought against a State tax collector only; that the exemption asserted was from the State taxes of 1883, not the city taxes of 1882 now at issue, and that the judgment was one confirming a default, no defence whatever having been set up.

The proceedings in the remaining case establish that the legality of the city taxes for 1882 was not involved, but only that of those of 1883 and 1884, and that the judgment was one reducing an assessment.

If the judgment declared the property exempt from the taxes for those years, it did not go to the extent of including those for 1882, and does not constitute, any more than the first, res judioala.

III.

The vital question in the litigation, that of exemption vel non for 1882, now arises.

The article of the Constitution on which the claim for exemption rests, reads: (207)

“ There shall also be exempt from taxation and license, for a period of ten years * * * the capital, machinery and other property employed in the manufacture of * * * * furniture and other articles of wood * * *

The contention here is, that, whereas the property of jdaint.iff was employed in 1882 in the manufacture of articles of wood, it is exempt, and the taxes claimed for that year are not due.

It is established beyond all possible perad venture that exemptions are strieti juris.

Indeed, in order to be entitled to the immunity, the claimant must establish his pretension quite clearly. In sncli cases, doubt is fatal. When the sovereign exempts, he does so munificently and unequivocally. Dennis vs. R. R. Co., 34 Ann. 955.

It must be observed that the article relied on, specifies “property employed in the manufacture of * * furniture and other articles of wood. ”

In the case of Jones vs. Raines, 35 Ann. 998, in which an exemption was claimed, under the same constitutional provision, in favor of saw mills, but not recognized, this court critically analyzed the text and took occasion to say:

“The enumeration following the copulative conjunction ‘and,’ indicating the conclusion .of an enumeration of distinct subjects and the use of the word ‘other' qualifying the articles of wood contemplated, both contribute to give, a restrictive sense to the words ‘ articles of wood,' etc., and satisfy our minds that the articles of wood, contemplated, were such as furniture and other like articles. ”

In the subsequent case of Martin vs. New Orleans, 38 Ann. 398, in which a similar exemption was asserted, after referring to the rulings in City vs. LeBlanc & Beck, 34 Ann. 596, defining the manufacturers exempt under Article 206, we said :

“* * It is manifest that the property, of whatever nature, which is used in the saw mill business proper, that is, in the manufacture of raw materials, namely of lumber not ready for use, asare ‘furniture and other articles of wood’ is not exempt from taxation. The case is different, however, as to property which is used for the manufacture of articles of wood ready for the use of the consumer. ”

Accordingly, the court considered that sashes, doors and blinds were articles of wood within constitutional intendment, and exempted the property employed in manufacturing the same.

The articles of wood mentioned in the article-of the Constitution are, therefore, those which like furniture, were intended for separate use and are ready for use by the purchaser without further manipulation or labor on them, namely, which are complete in themselves.

It is evident that the cabins and planks manufactured by the plaintiff in 1882 are not articles of wood within legal intendment.

Had the framers of the Constitution designed all property employed in the manufacture of all and any article of wood to be exempt, they would not have used the word “other, ” but would have replaced it by either the word all or any, or would have left it out entirely.

In the case of Martin vs. City, 38 Ann. 397, this court has considered that sashes, doors and blinds, were articles of wood, and that property employed in manufacturing- them came within the compass of article 207 of the constitution, and was exempt.

The evidence does not establish to our satisfaction, what is the capital, machinery and property employed by the plaintiff in the manufacture of such articles of wood, and in default of sufficient information on the subject we cannot finally adjudicate upon this controversy.

The city had just cause to complain of the exemption of property employed in the manufacture of cabins and planks by the plaintiff.

We feel therefore bound to remand the case.

It is' therefore ordered and decreed that the judgment of fchelower court he reversed, so far as it perpetuates the injunction Issued to prevent the sale of such of plaintiff’s property as is employed in the manufacture of cabins and planks, and that it he contingently affirmed in other respects, the case being remanded to the lower court to ascertain the amount of capital and the value of machinery and property of plaintiff, as was employed in 1882 in the manufacture of sashes, doors and blinds, with instruction to exempt the same from the taxes of 1882.

It is further ordered that the plaintiff and appellee pay costs of appeal.


author: Poché, J.

text:
    No. 10,360.
    V. & A. Meyer & Co. et al. vs. The Queen Insurance Company.
    Id construing insurance, contracts in which there is .some ambiguity, courts should be guided by the rule that where two interpretations equally lair may be given, that which gives the greater indemnity shall prevail.
    tinder a policy which does not forbid repairs per se, but imposes the condition on the insured to obtain the written consent of the company before doing any act which may increase the risk insured against, courts will not conclude that rexiairs, though very extensive, and bordering on reconstruction, operate an increase of risk, but will weigh the degree of care used by the insured, while making such alterations, and all circumstances connected with the operations, and decido such case on the particular showing therein made.
    An addition or extension to an insured building does not of itself operate an increase of the risk. The improvements made to the building in connection with the extension may decrease the risk.
    APPEAL from the Civil District Court for the Parish of Orleans. Voorhie.s, J.

      Farrar, Jonas & Kruttsehnitt for Plaintiffs and Appellants :
    Suit on policy of lire insurance. Two defenses urged, i. e.:

    (1) False representation and concealment as to character of risk when policy was issued.
    (2) Material alterations during the term of the policy, whereby risk was materially increased or enhanced.

      XT.

    The character of the risk was not misrepresented:
    (а) Where two interpretations, equally fair, may bo given, that which gives greater indemnity will prevail. May on Insurance, sec. 174.
    (б) “Brick-shingled sugar house and purgeries” is , not a representation that purgeries are “brick-shingled, ” but only that sugar house is brick-shingled.
    (c) If purgeries be part of sugar house, this express segregation of them from the sugar house strengthens our contention,
    (d) The frame tower was built over purgeries.

      (<?) Application was filled up by agent of company; tlie latter is, therefore estopped from setting up misdescription, due to mistake of such agent. Ins. Co. vs. Wilkinson, 18 Wall. 222. Phoenix Ins. Co. vs. Allen (Sup. Ct. Indiana), 1QM.E. It. p. 85. Wood on Insurance, p. 49. May on Ins., sections 141 and 341, and many cases cited by the Indiana Court.
    Ill,
    Tlio alterations and repairs did not increase, but on the contrary dimished the risk.

      (a) The policy sued on is a liberal one, and does not prohibit all alterations and repairs, nor the presence of workmen; it prohibits increase of risk alone.
    (5) Changes were:
    (1) Replacing old walls with new.
    (2) Replacing shingled roofs with corrugated iron.
    (3) Replacing wooden shutters with glazed sash.
    (4) Destruction of frame shingled boiler slied, which existed at a point exposed to danger of fire from numerous plantation buildings.
    (5) Replacing of shingle covered boiler shed, by one covered with corrugated iron.
    All of these improved risk.

      (c) Change alleged to have increased risk is planking up part of cane shod and placing mill therein.
    (!) 'This not pleaded in avoidance, and it should have been pleaded under well settled principles of insurance law. Pino vs. Merchants’ Mut. Ins. Co., 19 Ann., 214.
    (2) Trifling, immaterial and no real increase of a risk covering many frame structures at at its very inception.

      (d) Opinion of witnesses as to increase of risk, utterly immaterial.
    (1) Defendant itself first raised the point, and plaintiff acquiesced in the ruling of the court excluding such evidence.
    (2) Wood on Ins. (2 Ed.) p. 581.

      (e) Changes were consented to.
    Testimony of W. A. Labatt and O. M. Eiseman. Story vs. Hopo Ins. Co., 37 Ann. 255.

      Harry H. Hall for Defendant and Appellee :
    1. A material misrepresentation, though honestly made, will avoid a policy. 90 H..Y. 450; 98 Pa. (St.) 41; 13 Phil. (Pa.) 139; 35 Ann. 1353; 50 Iowa 400; 34 Md. 582; Woods 555. Yide 23 Ann. 458; 1 Story 57.
    A misrepresentation which it is to ho presumed has induced the insurance, though it did not affect the risk in itself considered, violates the contract; the slightest fraud, though duly legal, defeats the insurance. 13 Ann. 246; 23 Ann. 459.
    Suppression of a material fact, material to the risk, and not within the knowledge of the insurer, vitiates the policy. Woods 597, 574.
    “ Whore there is a material misdescription of the premises, although resulting from inadvertence, a policy issued under such erroneous description is void. Thus, where an application for insurance described the building as a stone dweilinghouse, it appeared on proof that the building was in fact a stone building with a; wooden kitchen attached. Hold : that the application could not he deemed confined to the stone building exclusive of the wooden one. A kitchen constitutes part of the dweilinghouse. A policy of insurance must attach to the whole or it will not to any part of it, and consequently there was jio valid contract of insurance. ” 20 H. Y. 52; Wood Eire Ins. 540.
    “The insurer has a right to ho informed of every circumstance which may fairly influence him in taking or rejecting the risk or fixing the rate of premium, and it is settled beyond all question that the suppression of a material fact avoids the policy.”

      “Facts suoli that if the truth liad "been known they would have influenced the insurer in accepting or rejecting the risk or in fixing a higher rate of premium ("Woods 506, 525) — such misrepresentation vitiates policy. ” 2Peters 25; 3JBres. (S.C.) 522; "Wood, p. 505.
    In Prndhomme vs. S. Fire Insurance Company, 27 Ann. 695, the fact that the goods insured were left in a tavern instead of a store, as represented, vitiated the policy. The court says:
    “ "We still think the insurer not liable under the circumstances; for whether the building be a tavern (the word used in tlie policy) or a hotel (by which, it is designated in the record), there was such misrepresentation of a material fact as to avoid the policy, the premium, of insurance in such buildings being higher than that paid by the insured in this instance. ” 56 Iowa, Glodevs. Germania Ins. Co., p. 400.
    A statement that the encumbrance on a piece of property was $3000 when it was really $4000 vitiated the policy, although they acted in good faith. 90 H. Y., p. 450.
    A party represented that liis building was insured fora certain amount when iii reality it was more. Held: though party may have acted in good faith, yet same vitiated policy.
    2. The risk was materially increased by the demolition and reconstruction of the greater part of the sugar house, without the company’s consent thereto being endorsed upon the policy.
    In Wood on Fire Insurance, p. 609, itis said: “ Hot only does the removal of the building insured in whole or in part, audits replacement by a new one, destroy the policy, but any material alteration of the risk, whereby tlie risk is increased, has that effect. Flanders, p. 516, 518; 14 Allen 329v
    And at page 611 it is held: “The facts in this case show a deliberate and considerable alteration of the building, not incidental to the ordinary use of the property, prolonged for three weeks, and while it lasted increasing the risk. There is nothing in the words of this condition to warrant us in holding that the alteration which increased tlie risk for such a length of time did not void this policy. On the contrary, one probable object of the condition requiring the written consent of the president seems to us to have been to enable the insurers to charge an additional premium.”
    And again: “If tlie risk was increased at the time of the fire, contrary to the terms of the policy, the insurers were not liable, even if tlie acts which increased tlie risks did not cause the fire. 21 Pick. 162; 8 Kent (6th ed.) 374; 9 Gray 27.
    “Such increase of risk may avoid a policy, even should it contain no provision to that effect.” May 279; Berryman 623 : 5 Houst. (Del.) 301.
    “ Any increase of risk avoids.” S.658; 16Md.377; 12 Wis. 377.
    “If risk actually increased, immaterial whether loss occurred thereby.” Flanders 514; San-sum 655; 21 Pick. 162; 16 Gray 296; 14 Allen 329; 99 Mass. 160.
    “Increase of premium one-half per cent material.” S. Hep. 655; 17 Barb. 11.
    Parol testimony admissible as to increase of risk.” Flanders 521.
    “Effect of repairs.” Flanders 532.
    “ By the addition of third story, at time of loss, the building did not correspond with the description named in the policy, and the insurers were released.” Sansum659; Sillern vs. Thornton, 3 El. &B1. 868 ; 18 Jur. 718.
    In Flanders, at page 510, it is held: “ Where tlie stipulation of the policy is that a prohibited use shall, so far as such use continues, make the policy to cease and be of no force, the insurance is suspended during such uso. "When the use ceases then the policy is again in full force. But, on the other hand, if tlio stipulation is simply that a prohibited use shall vitiate the policy, such use renders the policy absolutely null and void. And thus, although the loss happens, it is in a mode not affected by tlie false warranty.”
    “ Risk diminished cannot be offset against risk increased.” Sansum G59 ; Woods 599; 22 V. Can Q. Bench 310; do. 13, page 99; 89 IVmi. 438.
   The opinion of the court was delivered by

Poché, J.

This action is on a policy of insurance on a sugar-house, which was totally destroyed by fire on January 4, 1887. The amount of insurance was $10,000, and the amount claimed is $8,802 84, as the proportion due by the defendant ; there being insurance on the same property in another company.

Plaintiffs appeal from a judgment which rejected their demand in full. The defense on appeal presents .three points, which are all three predicated on the following stipulations contained in the fifth, of certain conditions appended to the policj’'.

“ This policy shall become void, in case the assured shall have made any false representation, or concealed any fact material to the risk, * * * or in case the risk insured against be increased by any means whatever without the insured giving notice to the company and obtaining the written consent therefor endorsed on said policy.”

The grounds of defense are:

1st. That the building insured was described by the insured as “his brick shingled sugar-house and purgeries,” when in fact one of the purgeries was a two-story frame structure.

2nd. That without giving notice to the company, and without its knowledge or consent, the insured tore down and completely demolished a large portion of the sugar-house, which he rebuilt, making a new sugar-house, of new and different materials; that he destroyed the boiler-sheds, building new ones in their stead in a different place, and that he increased the size of the cane-slied. by some eigty feet in length, which works were not ordinary repairs, but new constructions, during the making of which, from the 8th of August to the 6th of October, 1886, the buildings were placed, and remained, under the control of numerous workmen, thereby materially increasing the risk insured against.

3rd. That without the knowledge or consent of the company, the insured converted the two-story frame structure described as a “purgery” into a sleeping apartment, in which was erected a stove, the pipe of which passed through the side or window of said building, in which sugar-house hands slept, and in which the fire alleged to have damaged the sugar-house originated, thus changing the use of said purgery in violation of a stipulation in section 5 above referred to, in which it was covenanted that the premises should not- be occupied or irsed for any other purpose than that stated in the policy. The policj was issued to Adolph Meyer, the owner of the property, and purported to cover the following risks: “3000 on his brick shingled sugar-house and purgeries; $4250 on his vacuum pans; $500 on his other machinery ancl appurtenances, exclusive of pumps, tanks and mill, pro rata, contained in above described buildings; $250 on his boiler-sheds; $2000 on his boilers while contained therein.”

1.

On the first ground of defence, it is in proof, and it is not denied by plaintiffs, that one of the purgeries was a wooden structure; but tbe question for discussion is to ascertain whether the insured had represented it as built of brick.

Our construction of the language used as hereinabove transcribed does not justify such a conclusion. In quoting the words, “bride shingled sugar-house and purgeries," defendant’s counsel inadvertently, but invariably puts a comma between the words “brick” and “shingled;” and thus punctuated, the sentence might be construed as’ meaning a “brick and shingled sugar-house” and “ briele piergeries.” Rut there is no such punctuation either in the application for insurance, or in the policy itself, which is before us in its original form.

And besides, in the item referring to the insurance on machinery and appurtenanees, the policy contains the statement that the same “are contained in above described buildings.”

The use of the word “buildings” in the plural, in referring to the “ brick shingled sugar house and purgeries, ” shows clearly'to our minds that the parties did not consider the “ sugar house” and the “purgeries” as a unit or as a single entity, forming together but one object or building, and thus as all covered by, or included in, the same description.

And in point of fact the diagram of the insured buildings shows that the two side purgeries as described were merely wings of the main building. The evidence shows, as all persons familiar with the peculiar construction of sugar houses know, that purgeries are not usually considered as parts of the sugar house proper, from which they are generally separated by a wall or other partition. A purgery is a room in which hogsheads full of sugar are placed in a standing or upright position for the purpose of being drained. To drain sugar is to separate the molasses contained in all sugars cooked or boiled in open kettles from the sugar itself. Through small holes or apertures made at the bottom of the hogshead, large enough for a liquid to run through, but nob large enough to pass sugar or solid matter, the molasses run into a reservoir, usually of cemented brick, over which the hogsheads, containing sugar, are placed on beams or rafters laid on the brick walls of the reservoir at a short distance from each other.

These buildings or apartments are not usually built as staunch as those portious of tlie sugar house which are .specially devoted to the extraction of the .juice from the cane, and to the boiling of it into sugar; and hence they are generally less exposed to destruction either from fire or from boiler explosions, as they are remote from places where intense Are is handled or tised and steam generated.

Hence it is that “purgeries” are usually mentioned as separate appurtenances in descriptions of sugar houses, especially in contracts of insurance, and for that reason tlie insured in this case, and the company itself, make a distinct and a separate mention of them. From all of which we conclude that the insured did not intend to represent, and the insurer did not understand, them to be described as brick structures.

Hence the case does not fall within the effect of the rule invoked by defendant’s counsel, as settled by the case of Chase vs. Hamilton Ins. Co., 20 N. Y. Reports, p. 52, in which it was held that tlie description of a “stone dwelling house” included the wooden kitchen, and that the latter should have been specially mentioned to avoid the effect of misrepresentation.

If even we had felt a doubt as to the correctness of our construction of the language used by the insured, and had hence concluded that the language was ambiguous, wo should have reached the same result, under the guidance of the wise rule culled from judicial inteipretations of similar language, and formulated by Mr. May in his valuable work on insurance.

Speaking of insurance contracts he says : “Having indemnity for its object, the contract is to be construed liberally to that end, and it is presumably the intention of the insurer that the insured shall understand that in case of loss he is to be protected to the full extent which any fair interpretation will give. The spirit of the rule is, that where two interpretations equally fair may be given, that which gives the greater indemnity shall prevail. ” May oil Insurance, sec, 174, p. 203.

We are, therefore, clear in our conviction that the policy was not avoided by any alleged misrepresentation on the part of the insured.

II.

On the second point of discussion the record shows that very extensive repairs and radical changes were made in, to and around the sugar house, and that for the purpose oí making the same, large numbers of workmen were employed about the buildings from the beginning of August to the middle of October, 1886.

A portion of the sugar house property, about 100 feet in length by 47 feet in width, was entirely replaced by a new structure of the same dimensions; the former boiler sheds, one of which was on either side of the sugar house, were torn down; and all the boilers wore concentrated on one and the same side and covered by a single shed. The cane shed was enlarged by 80 feet, and a portion of the former shed was enclosed by planks and converted into a mill and engine room.

The entire roof of the whole sugar house, including all accessory buildings, was renovated and altered from a shingle to a corrugated iron roof. The condition in the policy did not forbid repairs per se, but only incidentally in so far as they might tend to increase the risk. The repairs, alterations and reconstruction were made during the summer months, when the building was vacant and unoccupied or used for no purpose incident to the ordinary use of a sugar house. They were made at a time when no fires are needed or used for warming purposes ; and the whole labor and operations were throughout carried on under the supervision of the plantation manager or overseer. Hence we conclude that during that time the risk insured against Was not increased.

Now ast.o the changes and alterations made, we find that far from increasing the risk, they palpably and materially .decreased the same.

We have no hesitation to declare that, in our opinion, the sugar house, after the repairs, alterations and reconstruction complained of had been completed, was a far better risk for insurance against fire than it was at the time when the policy was issued.

An immense area of shingle roofs had made way for corrugated iron roofs, a style of materials thus used on account of its recognized safety, from fire.

Wooden windows and shutters had been replaced by glazed sash.

Old and dangerous boiler sheds had made way to a shingle shed, enclosed and covered with corrugated iron.

And we feel confident that the danger from fire to that portion of the cane 'she'd, which was used for a mill and engine room, had thereby decreased instead of being increased. An open squrce covered with shingle, resting on wooden x>osts, under which cane straw was unavoidably sx>rcnd about; under which work was done by x>romiscuous laborers, and requiring no sx>ocial skill, in close proximity to the engine boilers and to the fire furnaces and opened to winter winds, is certainly a more prominent danger point for fires than the same x>lace, under an iron roof, enclosed by x'lanks, resting on brick foundations, lit irp by means of glazed sash, and under the control of skilled laborers, such as engineers and their assistants. Surely counsel cannot be serious in arguing that such an alteration would increase the. risk of fire insurance.

As to the extension of the cane shed, we hold that the new shed, as it stood on the day of the fire, although larger than it was at the date of insurance, lout with an iron, instead of its former shingle, roof, was less exposed to fire than it was before.

We have carefully .studied all the authorities submitted to us by defendant’s counsel, and we are aware that some decisions are to the effect that an extension of the insured building is considered as an avoidance of the policy.

But we prefer to adopt the views of those courts which hold that the rule is not absolute, and that each case must be tested under its own peculiar circumstances, to be left to and weighed by the jury. May 011 Insurance, sections 222, 223, 224; Jolly’s Administrator vs. Baltimore Equitable Society, reported in Burnett’s Fire Insurance cases, p. 187.

We understand the correct view to he in the construction of insurance contracts, that the insurers must be protected against the recklessness or fradulent. practices of the insured, and that the true intent of both parties, tested in honest purposes and with fair intentions and proper motives on both sides, are to be sought and should be enforced.

We understand that the numerous conditions appended to the policy in this case, and .to insurance contracts generally, and usually printed in such small type, that the best and keenest eyes are needed to decipher them, are intended to screen the company against fraud and deception, hut not to entrap the guileless insured who honestly seeks protection from unforeseen and, above all, unexpected losses by fires, either accidental or incendiary. But surely courts would he recreant to their plainest duty, if defences, resting on such conditions seldom brought home to the insured in any other way than by small print very difficult to read, would meet with favor.

In this very case one of the conditions printed in most diminutive type, is to the effect that the policy is to become void, in case the insured building ‘‘ shall be or become vacant, or unoccupied.” Now, surely everybody, including the insurance company, knows that between the month of March at the latest, and. October, sugar-houses are not used, and "are therefore vacant and unoccupied. And yet such a clause was left in tins contract. It is hardly to be supposed that if this sugar-house liad been burned at any time between these months, snob a defence could have prevailed.

In view of such transactions wo somewhat share the indignation felt by the Supreme Court of Illinois, when it said: “Such conditions, printed, as they usually are, in the smallest type, and read with great difficulty, are hut traps when the attention is not called to them.” 62 Ill. 460, Jones vs. Insurance Company.

III.

There is no more force in the third contention of the defendant, which is to the effect that the risk was increased ky converting and using one of the buildings described as a purgery as a sleeping apartment for sugar-house employes, with the luxury of a stove.

It is in proof, and it appears from the application of the insured, that the sugar-house was worked exclusively by steam, and that vacuum pans were used in boiling the sugar.

Now it is well known, as is shown by the evidence, that in such sugar-houses purgeries are not used as such, the sugar being drained by means of centrifugals. Hence it follows that in the present case the word “purgeries ” was simply used as descriptive, and not as a representation that the buildings described as “purgeries” were absolutely to be used as such.

It is in proof that the three apartments named “ purgeries” had been originally built for such purpose, but that such use thereof had been abandoned long before the date of this insurance.

Blit, be that as it may, it is in proof that in many sugar-houses, and particularly in the one now under discussion, in the vacant loft above the purgery proper, sleeping commodities were adapted for sugar-house hands, who do night work, some of whom are awaked at midnight, others retiring for rest at that time.

The evidence shows that such use of one of the so-called purgeries had prevailed for several years before the lire, and that the obnoxious stove had been placed, therein since the year 1882. After a thorough review of the many defences very ably discussed by counsel for the defendant, we reach the conclusion that the case is with plaintiffs, and that they are entitled to recover on their policy.

■But we are in accord with defendant’s counsel that the amount of their claim is not supported for more than $6556.

His calculations on that point are correct, and they find ample sanction in the evidence which it is unnecessary to detail in this opinion.

It is, therefore, ordered that the judgment appealed from be annulled, avoided and reversed; and it is now ordered, adjudged and decreed that plaintiffs do have and recover judgment against the defendant company in the sum of six thousand five hundred and ftfty-six dollars, with legal interest from January 4, 1887, until paid, and for costs of suit in both courts.

On Arreication for Rehearing.

Tlie charge in support of this application is that the decision of the court is grounded on manifest errors of fact, and on a lack of appreciation of the law which should control the case.

The charge is very grave, and coming from counsel to court, it might pierliaps be deemed harsh.

But it is made with such naive candor and it is pressed with such courteous and respectful earnestness that it brought trouble to our consciences, lest perhaps the case had received more impartial consideration at the hands of complaining counsel, who was fresh from the heat and excitement of combat, than it had found at the hands of live, cool-headed and disinterested judges who had, or at least should have, quietly followed up the'battle, without favor or prejudice.

Hence we deemed it our duty to re-examine the case in full, and -we feel much relief in being confirmed in the conclusion that the judgment previously rendered by us, is just and righteous, and that it need not be disturbed.

As stated in the first opinion, we did find some decisions which favored the views taken of the law of the case by defendant’s counsel, but we thought it wiser to follow the rules laid down by other equally respectable authorities, which commended themselves to our favorable consideration. We therefore reaffirm the conclusions of law by which we were guided in our deliberations.

Counsel complains of our failure to notice the point which ho had made in his first brief, concerning the misrepresentation in Meyer’s application for insurance, by omitting to mention the existence of a tower reaching high above the roof of the sugar-house, and built of wood. It is in proof that such a tower did exist, and that it had been constructed in the year 1882.

But turning to defendant’s answer, we find that no point was therein made on that score. The complaint there was that the obnoxious tower had been constructed since the date of the x>olicy, or after January, 1886.

Hence "wo paid no attention to the tower as an element of defence. Pino vs. Ins. Co., 19 Ann. 233. The allegation of the answer on that point is in the following words:

“ That by the erection of a tower 40 foot high, 22x22 feet, rising 20 feet above the roof of the sugar-house, and by the erection of sky-lights thereon, the risk was materially increased.” * *

But the evidence in the record, which is quoted in the brief on the application for rehearing, shows that the tower had been in existence since 1882. It certainly fails to support the allegation that its construction had operated an increase of the risk. In dealing with the feature, of the case our only embarrassment is to determine which destruction is the most effective, that of the allegation by the proof, or that of the. present contention of the defendant by the allegations in its own pleadings. But one thing is certain, and it is that the parties litigant must he bound by their pleadings.

The pleadings are to the judicial mind wliat the compass is to the navigator, they mnstalways he consulted and never lost sight of, although counsel, in their seal, may drift far away from their moorings.

It is not our province, nor is this the place, to deliver a lecture on the rules of practice, but we are constrained to say that an attempt to improve defective or obscure pleadings, for the first time, in an application for rehearing is rather tardy and cannot be countenanced.

Conceding that wo erred, as a question of fact, in finding that the entire roof of the sugar house, including that of the new engine room had heen changed from shingle to corrugated iron, that fact is immaterial either on the question of misrepresentation, or on that of the alleged increase of the risk, the only two lines of defence. In the application for insurance the whole sugar house is described as shingled roof; and it is shown that after the repairs and alterations complained of had been made, the largest part of the building, 303 feet in length, was roofed with corrugated iron.

We are thorougly satisfied that our decree has done Ml justice, and hence wo must decline to reopen the case.

Rehearing refused.


text:
    No. 10,381.
    Succession of Mrs. Hester E. S. Dickey.—On Final Account. Mary E. Burns et al., Opponents.
    Tiie question involved in this esse is one, of fact.
    Where a physician was summoned to Atlanta to attend his aunt, not in a professional capacity, hut as an adviser in business matters, and on his arrival lie rendered valuable professional services which wore accepted by the aunt, he is entitled to compensation, lint not having-boon summoned professionally in the first instance, he cannot in estimating his services, claim for loss of home practice.
    APPEAL from the Civil District Court for the Parish of Orleans. Bilis, J.

      Walter J). Denegre for Opponents and Appellants.

      Mice c& Armstrong for Appellees.
   The ox>inion of the Court was delivered by

McEnery, J.

Dr. Thomas C. Stellwagen, nephew of the deceased Mrs. Diclcey, was placed as a creditor on the final account of the executor for “professional services and traveling expenses to, at and from Atlanta — $1900. ”

Mrs. Mary E. Burns and other heirs and legatees of the deceased opposed this item in the a.ccount on the ground that said Stellwagen was not a creditor of the succession, and that said succession owed him nothing, as stated in the account, and that said item on said account be rejected. There was judgment below allowing the claim and homologating the account, from which the opx>onents have appealed.

The claim of Dr. Stellwagen is for medical attention and traveling expenses. He rendered very valuable services to the deceased in attention to her bnssiness affairs, but these can form in this account no basis for the allowance of the $1900, as the claim is for i>rofessional services and necessary traveling expenses. Had he been summoned to the bod side of the deceased to render professional services, he would unquestionably be entitled to greater renumeration than a local practitioner because of the distance traveled, the abandonment of home practice and other attendant circumstances that would add to the value of his services. But in the instant case Dr. Stellwagen was not summoned as a. physician to give medical attention to the deceased. He was a licensed physician, but also a dentist, and made this latter profession his business. As a practitioner of medicine he practiced in his own family and sometimes among his friends.

In his testimony he says: “I received a telegram from Esther D. Gibney, a member -of her family, stating that my ‘ aunt Mrs. Dickey is dangerously ill; come at once to Atlanta, Georgia. ’ I dropped my practice, and immediately had a personal interview with one of my aunt’s nephews, and upon his statement that it was impossible for him to go, I telegraphed to others of her nieces and nephew, urging that some one should go at once to Atlanta. These all likewise refused, and I found myself compelled to accept the alternative oí the immediate departure, or to desert my aunt in her hour of financial and physical need to the care of those not related by blood. ”

This statement shows that Dr. Stellwagen did not consider that lie was summoned as a physician, but as a relative and a favorite of the deceased, in whom she had great confidence. He had no general practice as a physician. It was limited only to his family and friends. He had not been called as a physician, and. therefore, there can he no estimate made based upon the loss or abandonment of home practice.

The deceased had in attendance on her during her illness able and experienced physicians of Atlanta. She does not seem to have wanted for medical attention. There is no evidence that she became dissatisfied with her physicians and needed the services of Dr. Stellwagen in addition. But when he arrived in Atlanta, he not only attended to business matters for the deceased, hut gave untiring and affectionate attention to her as a physician and nurse. His wife also rendered valuable services. No claim is made for attention given to business matters. The deceased having accepted, and undoubtedly having been relieved mentally and physically by his professional services after his arrival in Atlanta, he is entitled to he paid for these services. As he carried his wife with him to nurse the deceased, her services ought to enter into the computation of those rendered by him. Twenty dollars per day, we think, would bo a proper allowance for their services, to date from the day after arrival in Atlanta until the death of Mrs. Dickey in Weden, Penn. This embraces a period of nine days, amounting to $180. There is no evidence in the record upon which to base an exact estimate of traveling expenses, but as his expenses are included in Ills claim of professional services, we think it but just, under the peculiar circumstances of this case, to allow them, which we fix at two hundred and twenty dollars for himself and wife, which includes all expenses, for sleeper, meals, etc.

We are of the opinion that the claim on the account ought to have been allowed to the amount of $400.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from be amended so as to allow Dr. Stellwagen the sum of four hundred dollars for professional services and traveling expenses, and in other respects it be affirmed, appellee to pay costs of appeal.


text:
    No. 10,490.
    The State Ex Rel. Leon Beaucoudray, for the Use of Etc., vs. Judges of the Court of Appeals, et al.
    A mandamus will not issue to tJio Court of Appeals to try a case, on its merits, involving five hundred dollars, when said court, in the legal exercise of its discretion, finds that the claim is inflated in order to give it jurisdiction over the facts, and that the record contains no statement, no hill, or assignment of errors.

      REPLICATION for Mandamus.

      Fergus Hernán and B. II. Downing for tlie relator.

      Buck, Dinkelspiel cC- Hart, for tlie respondents.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an application for a mandamus.

The relator complains that the Court of Appeals, considering- that the sum claimed by him, viz, $500, in a certain suit, was inflated, dismissed his appeal, refusing to pass upon the law and facts involved in tlie controversy. He contends that said court ought to have passed upon both? as the amount claimed is exactly $500.

The judges of the Court of Appeals have entered an appearance, referring- this court to the reasons assigned by them for dismissing- the appeal.

It would have been preferable lor their honors to have answered the petition, by substantially giving the motives for which the relief sought, should be declined, even had they deemed it advisable, to append to their return, their written oxiinion, .as part of it, to amplify the same, rather than to subject this court to search for and formulate an answer, from the argumentative reasons assigned to dismiss the appeal.

It appears that the relator had brought suit as tutor before the Civil District Court for the Parish of Orleans to recover from tlie defendant a sum of five hundred dollars damages, resulting from an alleged illegal seizure and sale of certain effects belonging to his ward. The items forming the amount being:

The value of the goods seized and sold...........................$150

Damages consequent on the seizure............................... 150

Attorneys’ fees.................................................'200

Total....................................................$500

When the case came up, the Court of Appeals, which had jurisdiction over the controversy, as the amount claimed exceeded one hundred dollars ($100), concluded that, as the record was not in a condition to present questions of law for solution, and as the demand was evidently fictitious and magnified so as to give it jurisdiction over the facts, when in reality it had none, dismissed the appeal.

Tlie judges of tlio Court of Appeals, having exercised a legal discretion cannot be compelled by mandamus to try the case differently from what they have.

By the amendment re-enacting Article 148 of the Constitution (Act 125 of 1882), the lower limit of the jurisdiction of that court was reduced from two to one hundred dollars. Under the second paragraph of the article, it has jurisdiction on questions of law alone, in cases involving less than five hundred dollars, exclusive of interest, and, upon the law and the facts “ in other cases. ”

It is apparent that, as the controversy involved nominally $500 exactly, which is more than less than $500, 'it had jurisdiction over the facts and the law, and, under the ruling in State ex rel. Cazentre vs. Judges, recently decided, 41 Ann., p. 955, they had the power to dismiss the appeal, because the amount claimed by the relator, here, had been inflated so as to make the case examinable on the facts and law, on appeal.

It is likewise clear, after finding that by reason of the inflation, it could not pass on the facts, the Court of Appeals was not bound to pass upon the case as involving questions of law, because of material deficiencies in the record before it.

Appellants to that court must shape their records, so as to present; either questions of law exclusively in cases involving less than $500, or both, questions of law and facts, “in other cases. ”

They must take the risk when they rank a case in the last category, that if the demand is fictitious, the court will dismiss the appeal, without passing on questions of law, unless they are presented by the record, in the shape and form in which they should be set forth, in order that the same may bo considered and determined.

The judges of the Court of Appeals thus viewed the matter, for they say that they declined to pass upon the facts, as the claim was inflated, and refused to determine any question of law, as the record contained no statement, bill, or assignment of errors.

The relator has not undertaken to show that the ruling was arbitrar;/. As we have no authority to inquire into the correctness of the reasons assigned by the judges of the Court of Appeals and as the decree made by them is one which they liad the power to render finally, wo cannot grant the relator any relief.

It is therefore adjudged and decreed that the restraining order herein made be rescinded and the application for a mandamus be refused with costs.


author: POché, J.

text:
    No. 10,388.
    The Barber Asphalt Paving Company vs. The City of New Orleans et als.
    Debts and oilier incorporeal rights, wlien treated as property for the purposes of taxation, can be assessed only at the domicil or place of residence of the creditor, without regard to the domicil of the debtor. The principle applies to corporations as well as to natural persons. Hence debts due. to a foreign corporation by residents of this State, cannot be taxed in this State.
    APPEAL from the Civil District Court for the Parish of Orleans. VoorltieÑ, J.

      Leo vi/ and Blair for Plaintiff and Appellee :
    i.'
    l: Two grounds for the relief sought were presented in the court below : a. Plaintiff had no pi-operty covered by the words of the assessment; b. If debts due it were within the, words of the assessment, such properly was not taxable in this State.
    2. Either of these grounds is sufficient to.support the judgment appealed from. It does not appear which of tho two prevailed in tho lower court.
    3. As the amount involved does not exceed $2000 this Court cannot consider tho first of these grounds.
    4. Hence this Court should not entertain jurisdiction of this appeal. Otherwise plaintiff might be entirely deprived of all benefit, of a valid objection which is sufficient to entitle it to the relief prayed for and which, perhaps, was the only issue decided in the court below. * x
    II.
    1. A corporation is a citizen and resident of tho-State which created it and under whose laws it was organized. Ang. and Ames on Corporations (10 Ed.), § 194 ; Railroad Co. vs. Koontz, 104H. S. p. 11 ; County of Yuba vs. Pioneer Gold Mining Co., 32 Eed. Rep. 183.
    2. u By doing business away from their legal resideuee they (corporations) do not change citizenship, hut simply extend tho field of their operations. They reside at home, hut do business abroad.” Railroad Co. vs. ICoontz, 104 IT. S. p. 11.
    3. A debt is an incorporeal right which has no actual situ$, hut follows the domicil of* the owner.
    4. The taxing powers of a Stafe are limited to persons and property within and subject to its jurisdiction. They do not extend, therefore, to incorporeal lights owned by a citizen of another State. Meyer of ol. vs. Pleasants. Sheriff, etc., 41 Ann. (Sou. Rep.); Murray vs. Charleston, 90 U". S. 432 j Klrtland vs. Hotchkiss, 100 IT. S 496; State Tax on Foreign Held Bonds, 15 "Wall, 300 ; City of Baltimore vs. Hussey, 9 Atlantic Reporter, 19; Oliver vs. Washington Mills, 11 Allen, 282; Cooley on Taxation, x>P-14, 15; 270.
    5. Hence, debts due the plaintiff Company, a corporation created and organized under the laws of the State of West Virginia, and a citizen of that State, are not taxable in this State.
    O. Article 236 of the Constitution of this Stale does not bring foreign corporations within the taxing jurisdiction of the State, even if it were comxietent for any State to confer on itself the power to tax persons not citizens of, or properly not actually within, this State. It does not expressly so provide, and it is not necessary to give it such an effect to aocoml>lish the obvious x>urx>ose of the provision.

      7. Engaging* in business awl being suable in a S.tate do not make a corporation a citizen of tliat State. JBailroad Co. vs. ICoonte, 104 XI. S. p. 11.
    8. The residence oí' the debtors is entirely immaterial in determining* the taxability of debts. Hence, if any debts due foreign corporal ions are taxable in this State, all their credits, dioses in action, and other incorporeal rights, wherever the obligors may be, are so taxable!

      T. MoG. llyman, Assistant City Attorney, for Defendant and Appellant:
   The opinion of the Court was delivered by

POché, J.

Plaintiff, in this snit, contests the right of the State and city to levy and enforce a tax on- “money loaned on interest, credits and bills receivable for money loaned or advanced,” owned by the plaintiff corporation in the city of New Orleans. Its ground of resistance is that as a foreign corporation it is not liable to taxation in this State for that Mud of property or rights, which can be assessed only at the domicil of the owner.

This appeal is from a judgment in favor of plaintiff.

The suggestion of appellee’s counsel that the matter in dispute is less than the lower limit of our jurisdiction^ is not well founded.

The contention involves the legality of the tax assessed against plaintiff’s property, and not the correctness or legality of the assessment. If under the law, plaintiff’s property as hereinabove described is not liable to taxation in Louisiana, the tax sought to be enforced would undoubtedly be illegal, and it follows that the legality of the tax being involved, the amount thereof is not the proper test of jurisdiction on appeal. Constitution Art. 81, Meyer et al. vs. Pleasant, 41 Ann. Southern Reporter, Vol. 6, No. 10, p. 258.

On the merits, we think that the case is with plaintiff, and that the conclusions of the District Judge are correct.

The record shows that plaintiff is a foreign corporation, domiciled in the State of West Virginia, and that the property sought to be taxed consists exclusively of debts due the corporation by citizens of this State for paving work previously done.

In the case of Meyer vs. Pleasant, hereinabove referred to, it was held, in harmony with settled jurisprudence, that the situs of a debt as property is at the domicil of the creditor, and it was decided that a judgment rendered in the Parish of Union in favor of, and owned at the time by, the Meyers, was not liable to taxation in that parish, for the reason that the owners of the judgment were residents of the City of New Orleans, and not of the Parish of Union.

If the rule applies to residents of different parishes, a fortiori will it protect citizens or residents of other States.

The principle seems to be conceded by the city attorney in so far as natural persons are concerned, bat lie denies its application in the case of corporations.

His contention is predicated mainly on the revenue act of 1888, which levies an annual tax on all property situated within the State, including rights and credits similar to the effects assessed to plaintiff, and on the provisions of article 236 of the State Constitution which provides that, “no foreign corporation shall do any business in this State without, having one or more known places of business, and an authorized agent or agents in the State upon whom process may he served.”

The record shows that plaintiff has complied with that constitutional requirement, and hence it is argued for the city, that as an effect of the article the plaintiff lias assumed “the duties and obligations of a citizen of the State, a natural person.”

Under well settled jurisprudence and with the sanction of the Supreme Court of the United States, through several decisions, there is no longer any question as to the right of a State to exact of foreign corporations conditions similar to those contained in oiu- article 236, before they can do business within any part of the State, and in that connection it has been held by tliat exalted tribunal that corporations are not citizens within the meaning of that clause of the Constitution of the United States, which declares that “ the citizeus of each State shall be entitled to all the privileges and immunities of citizens in the several States.” Paul vs. Virginia, 8 Wall. 168; Liverpool Insurance Company vs. Massachusetts, 10 Wall, 566; Lafayette Insurance Company vs. French, 18 Howard 404; Doyle vs. Insurance Company 94, U. S. 535.

But we find nothing in those opinions or in the Article 236, of our Constitution, on which the'argument of counsel for the City can find the slightest support, when he contends that a compliance with the Article by a foreign corporation assimilates it, in duties and obligations, to a citizen of the State.

The discussion of the case does not involve the question of citizenship, but merely that of domicil.

And on that subject it is beyond question the right of a corporation, as well as of a natural person, to have a legal domicil. And that domicil is in the State where it was incorporated. With the leave of other States a corporation can extend its operations to other States, but it does not thereby acquire a new domicil in every State in which it does business. It retains the domicil of its birth, and, like natural persons, it is at that domicil that its obligations for, and its liability to, taxation for debts or other incorpovoiijl rights, winch it owns, must- be tested and settled. Railroad Company vs. Koontz, 104 U. S. p. 11; County of Yuba vs. Pioneer Gold Mine, 32 Federal Reporter, 183.

Nothing in the language of our Article 236 can suggest the slightest intention on the part of the framers of the Constitution to affect or alter the right of a foreign corporation to have and maintain its domicil in another State or to declare that by having- one or more known places of business and an authorized agent or agents in this State, a foreign corporation thereby ceases to be a “foreign corporation..” On the contrary, the very essence of the provision, which has for object to secure the service of process, which could not otherwise be accomplished, shows the clear and unmistakable intention to provide for “foreign corporations,” which are contemplated to remain “foreign corporations,” and not to become home or resident corporations. Viewing the question from every standpoint and in every possible light, we fail to see any reasons which could justify, or discover any principle of law or any judicial utterance which could sanction, the distinction contended for between corporations and natural persons, on tlie question of their respective rights of domicil and of the legal effects flowing therefrom. Our conclusion is that the tax levied against the plaintiff corporation cannot be sustained; and that the assessment should be cancelled. It is therefore ordered that the judgment appealed from be affirmed with costs.


text:
    No. 10,223.
    Leonide Lacroix vs. P. Nodal & Co.
    A party, avowedly not the owmn- of a trade-mark for the use of which he had been sued under the allegation that it was an imitation of another trade-mark, lias no standing' in court to sue for damages,as a vindication of such trade-mark, after the dismissal of plaintiff’s ac“ tion on his own motion.
    APPEAL from the Civil District Court, for the Parish of Orleans, KU/Mor J.

      Farrar, Jams <li Kmllse.hnitt for Plaintiff'and Appellee :
    r.
    A warrantor is only a defendant in a restricted sense of the term, i. e. in such a sense as to enable him to resist by all legal moans or defense a judgment against the defendant, which, by reason of the recourse against him, would affect his interest; but no judgment can bo rendered, against tlio warrantor, oxcopt one in favoi of defendant for such amount as lie may bo liable for under libs warranty. Suo Stoolo vs. Smith. i)fcli Ann. p. 172.
    II.
    A petition praying for a judgment against defendants, recognising the, tittle of plaintiffs to such goods as they may hereafter acquire, and forbidding plaintiffs from slandering the title of defendants to sell such goods as they may here,after acquire from a third person, exhibits no cause of action, and a reconventiomil demand is of course subject to the same mlLS'
    II r.
    Answers to interrogatories on facts and articles form part of the pleadings and of the record. They bind a party as fully as. and are really part of, the answer itself. Whiting vs. Ivey, 3 Ann. 649; Walker vs. Villavaso. 18 Anu. 716; HcLear & Kendall vs. Succession of Hansickor, 29 Ann. 546.

      E. T. Elomiifíc for Defendants aud Appellants.
   The opinion of the Court was delivered by

Poché, J.

Defendants appeal from a judgment which dismissed their «‘.conventional demand on the ground that it disclosed no cause of action.

Plaintiff’s action was based on an alleged infringement of Ms trade-in arle for cigarette paper, which defendants were charged to have imitated in selling a spurious article bearing such trade-mark; in consequence of which lie prayed for damages in tiie sum of ten thousand dollars and for an injunction. To his petition he annexed interrogatories on facts and articles intended to bring out the substantial facts alleged in Ills pleadings.

In their answers to the questions thus propounded to them, the defendants denied emphatically that they had sold cigarette paper corresponding in all respects with that covered by plaintiff’s trade-mark, and which had not been manufactured by him. For answer to the suit they liled a general denial, followed by a special denial, that the cigarette paper which they had sold was an imitation of that manufactured by plaintiff.

They then aver that two other named parties were the owners of the trade-mark under which they were selling, and they call said parties in warranty. They conclude with a prayer to be decreed entitled to sell the paper bearing the trade-mark of tlieir warrantors, which t-liey annex to their answer, and claiming in reconvention damages against plaintiff for having, by his suit, slandered their business, and impeded their legal and'free use of their warrantors’ trade-mark.

The warrantors pleaded before service of process, affirming their title to the trade-mark annexed to defendants’ answer, and praying that defendants he quieted in their right to re-sell cigarette paper hearing their said trade-mark. At this juncture plaintiff discontinued Iris suit, hut defendants, hacked by their warrantors, insisted for'a trial of their re-conventional demand, which the court dismissed on plaintiffs suggestion that at that stage of the proceedings it disclosed no cause of action. From the foregoing statement of the pleadings it appears to our satisfaction as follows:

■ That defendants were not the owners of the trade-mark which they sought to vindicate, and that therefore they had no canse or reason to judicially claim any other right than that of using it in their dealings under the authority of their warrantors. But that right was conceded and f.uly recognized by the discontinuance of plaintiff’s action which was the only obstacle in their way. That left them without any grievance or complaint which they could judicially assert, and therefore the case was thus stripped of all litigious contention. The ends of justice were fulfilled and the mission of the court was thus accomplished.

IVe therefore conclude that there is no error in the disposition made of the case by the District Court.

Judgment affirmed.


author: Fenner, J.

text:
    No. 10,397.
    Agricole Armant, Testamentary Executor, vs. New Orleans and Carrollton Railroad Company.
    1. Tho dccrco of a court of competent jurisdiction appointing a testamentary executor who has duly qualified stands as prima facie valid; and an exception to the capacity of the executor, not putting at issue tint regularity of his appointment and qualification, hut based on grounds extraneous to the. probate proceeding, throws on flic exceptor the burden of proving them, and, in absence of prooí', the exception, is properly overruled.
    2. Dividends declared on stock in corporations, like irregular deposits in. banks, are payable on demand, and until demand and refusal, prescription does not begin to run against tlie l>crson entitled.
    3. Where the stock of an expiring corporation is merged, into the stock of a new one, organized as its successor, acquiring its franchises and assumiug its obligations, a provision inserted in the charter of the new company forfeiting dividends not claimed within three years from the time when declared, is not binding upon the old stockholders except from the time when, expressly or by implication, they consent thereto by assuming the quality of stockholders in the new company. An old stockholder who has been ignorant of liis rights and of the transfer and who claims his dividends as soon as informed of their existence, cannot be affected by such provision except in futuro.

    APPEAL from the Civil District Court for the Parish of Orleans. Rkjhior, J,

      T. J. Semines cD Legendre for Plaintiff and Appellee :
    A debtor cannot inquire into the validity or invalidity of bis creditor’s will. Heirs and creditors alone can attack contracts and donations made to their xmojudice. The debtor of an estate cannot object to an administration of it on the ground that it owes no debts. Heirs alone can urge that objection. A decree appointing an administrator or executor cannot be attacked collaterally. 28 Ann. 807; 30 Ann. 269.
    A precarious possession cannot serve as the basis of prescription acquirendi cama.. To acquire property by prescription one must possess as owner. C. O. 3510.
    Prescription against an action to recover dividends on stocks runs only from demand on the corporation for payment of same. 34 Ann. 576; 30 Anil.486; 32 Ann.483; 20 ^nn. 381 ; 23 Ann. 300; 11 Pennsylvania 417.
    The act of incorporation of the How Orleans and Carrollton Railroad Company, granted by the Legislature in 1833, and accepted by the stockholders thereof, is a contract.
    Rights acquired under it cannot bo impaired or destroyed. 32 Ann. 1069: Morawetz on Corporations, sections 53, 196,191; Angelí on Corporations, sections 333, 335; Field on Corporations, sections 75, 76.
    Under Article 3 of the Charter of 1882 the New Orleans and Carrollton Railroad Company, defendant herein, expressly assumed the debts, contracts and obligations oí' the company organized in 1833.

      John M. .Bonner for Defendant and Appellant:
    Where a succession has been fully administered-and whore there are no debts to be paid a dative testamentary executor should not be appointed twenty-eight years after the death of the testator to bring suit, but the action should be brought in the names of the heirs.
    An action to recover di\ idends on certificates of stock issued by a corporation is a personal action and is prescribed by ten years. R. C. C. 3544; 32 A nn. 488; 34 Ann. 825.
    The charter of a eorporetion constitutes a contract between the corporation and its stockholders, and an art-iclo of the charter providing that dividends not called for in three years shall revert, to the company is valid and binding* on the stockholders.
   The opinion of the court was delivered hy

Fenner, J.

An exception was filed to the right of plaintiff to stand in judgment as testamentary executor on the grounds that the will under which he was appointed is invalid; that, if invalid, it is not shown that it has not been completely executed; and that, as there are no debts due by the succession, in this State, there is no necessity for an executor or administrator.

Tiie exception does not deny that the plaintiff has been regularly appointed and qualified as executor under the decree of a court of competent jurisdiction. Such a decree must be treated as prima facie valid; and even il' it were conceded, argv,mentí gratia, that defendant, a. mere debtor of the succession,- could attack it in this collateral way. yet as the grounds of the attack are matters extraneous to the probate proceeding, the burden of proof would lie on him, and he has offered no evidence whatever on the subject.

On the Merits.

The suit is brought, to recover dividends for many years on thirty-six shares of stock in the defendant company.

The ownership of the stock by the decedent is fully proved, and it is also proved that the dividends have been declared, have never been paid, and stand as due on the books of the company.

The prescription of three and of ten years is pleaded.

Dividends on stock are, like irregular deposits of money in a bank, payable only on demand, and until demand and refusal, prescription does not begin to run against, the person entitled. De St. Romes vs. Levee, 20 Ann. 381; Brown vs. Pike, 34 Ann. 576; State vs. R. R. Co., 6 Gill (Md.) 363; R. R. Co. vs. Hickman, 28 Penn. St. 329; Bank vs. Gray, 2 S. W. Rep. (Ky.) 329.

The defendant finally invokes the provision of its charter passed iu 1882 declaring: “Any dividend not called for within three years from the date of its being made payable shall revert to the company. ”

Defendant is, in effect, the successor of a former corporation bearing the same name whose charter expired in 1883. The stock of the new company was issued to the old company and distributed amongst its stockholders in lieu of their stock in the latter, and the new company assumed all the debts and obligations of the old of whatsoever nature.

The provision above quoted was not contained in the charter of the old company, and, of course, the new company could not destroy, abridge or forfeit rights acquired by the stockholders of the old, without their consent. The provision, therefore, cannot affect dividends which had accrued under the old organization and which the new company bound itself to pay. .

It is claimed, ho wove, that as concerns the dividends declared by the new company, the provision must be enforced.

Wo consider that the provision is binding on all stockholders of the old company who consented to the merging of their stock into the stock of the new company, from the time of such consent, whether given expressly or by implication from acts adopting the change.

Wo hold that by bringing this action for dividends declared by tlie new company, thejilaintiff, and those represented by him, give such consent, and will be bound hereafter by all valid provisions of the charter. But it fully appearing that they were ignorant of the existence of their lights and of all the proceedings had, until shortly before the institution of tliis suit, we. cannot hold that this consent shall rotroact in such manner as to operate a forfeiture of rights of the existence of which they were ignorant.

Judgment allirmod.