Louisiana capitolian., 1880-03-27

Mutual Insurance Company, W. VIM. $. Pike,
involving law points which will prove interest
Ing to attorneys and the public generally. This
case has been attracting much attention for
some time back, and will doubtless be read with
interest:
SUPREME CouRr-SrArE OF LOUISIANA.
Southern Mutnal Insurance Co., VA Willinm s.
Pike.
Opinion of the Court.
This action IN for m account, with prayer Tor
judgment. against the Defendant for oI,e.tenth
(his viric portiou) OF whatever may bc shown To
be due the plaintiff IN cash. and for tho delivery
Of its books, notes, etc. The plcadings and facts
are fully sct forth IN our opinion, rendered when
the cnso was laHt before ila The plGp of pre-.
scription WIS then ovctrulcd, and the tausc was
rcmanded with the order that within sixty days
from notice of this Judgment the Defendant shall
render a,l account of The administration Of his
father as President and Treasurer ottle Plaintiffs
Company. from February lst, 1880, aud In default
of compliance that the plaintiff he allowed to
propccntc ,ts suit to final Judgment The Dotrn'
,lant ohoyed the order by tlansclibing from the
books tho entries mndo therein from the datc
mentioned above TO December 9th, 1864 When
his father ceased performing any functions a8
Prcsidcnt or Treasurer of the Company, dcc'al.
ing that ne has no knowledge of the Compa,,y's
affairs, and In rendering the account las been
merely copyist, He then pleads tho prcsciip.
tion of ten years to the entire CLAIMS and to
ench and every itcm thereof. und to every item
Of the account This plea was sustained. 1t il
objected to this plea that our decree On the case,
| M IL was before us then, ~ har thereto and
forms the thing adjndged quoad this pleM this is
a misconceptions The plea of prescription first
| made was to the action for IN account. It's sub
| stance and meaning was that, by inaction during
| had
right, or faculty of calling on the Defendant for
M account Of any kind. We ovcrrulcd the plea
| thereby ndiudging that the power and right to
demand an account still existed, and in further.
ance of its exercise ordered TINT one be rendered
The order has been obeyed now the plea Of pre-.
scliption IN made to the plea of indebtedness
evidenced by the account in 10 each item thereof
| that was put on the books ten years before the
institution of this suit II may we'll be tlat ono
shall be compellablc to furnish or render an w..
count OF past transactions with another, and yet
sufficient time may have elapsed to give him i'm.
| munity from liability because Of them.
This company was located at Baton Rouge.
The last meeting of its directors was held there
February LIT, 1862. The statement made then
by the elder Pike, as its Prcsdcntand Treasurer,
is the basis Of tho suit He kept that place per.
gagged In the business of Bunling IN this city
continuously from that time until his death in
January, 1875.
During his life no suit was instituted against
| him. Tho latest entry in the books was in 1854.
| This suit was instituted In 1871.
The prescription pleaded by the Defendant ~
ono of the heirs of his father, cannot be success.
fully opposed to the demand for any specific oh.
.jrcis, such ~ the books, papers, seal etc, and
il is conceded that 1t does not. But the cash or
money in hand in 1854 and the liability for non.
collection of tho notes and premiums on policies
is on a different footing. By the conversion Of
the former and by the failure to collect the latter
debt was created and the prescription Hberandi
ca'tsn is applicable thereto
Ii cannot be seriously eOntcnded that Pike re
Ceivcd the money as special deposit 1t was
not expected that he should return IL in kind or
distribute the identical money among those who
might be entitled to It. From the moment when
the business OF the company stOppcd--whcn he
ceased to conduct it in any of the capacities he
had assuned-the liability for the money became
a personal obligation. which was enforceable
against him. This is equally true Of the notes.
II 1t was his duty to collect them and he failed
to perform it, whereby they were lostto the com
pany his liability attached, and his creditors
must enforce 1t in time at their peril.
The difficulty in the case and the difference
between the counsel lies not so much in the
principles of law applicable to the case, as in
the effect which certain facts have on the appli.
| cation 0i those principles. thus IT. II, Tor the
Plaintiff contendcd that the elder Pike was actrl.
ally President and Treasurer Of the Company up
| to the day of his deatll--that the company was
in existence, and he was the continuing manda.
tory OF the stockholders and hence that prcscrip-
ton could not run while he held this relation to
! them. The Defendant, ON the other hand,
points to the indisputable fact that Pike never
undertook or transacted any business in insu'
rance after February, 1862 That shortly there
after he removed to this place. closing the office
of the company, and that the last entry in the
| books il in 1864. His attitude to the company
and to the stockholders was not that of an acting
officer of living organization. Even If his de-
carations were admissible in evidence, they did
| imply, much less avow, that he was continuing
the discharge of any official function. On the
contrary, their pnrport was that i he had in.
CURED liability to any for official acts in the
past, he would discharge it. He treated the
company as defunct, and 80 did all those who
were interested in it.
We hold that the elder Pixies liability attach.
ed in ls6l-that his son and heir cannot prescribe
the demand for specific property, but he can op.
pose the prescription lerandi ca,tsi to the claim
for money and to that of indebtedness for failure
to collect the notes and the premiums on policies
which it is alleged he should have collected.
He lived twelve years after the business of the
company had ceased No judicial demand was
made during that time for the recovery Of the
debt created by his alleged laches, and his heir
is protected from that demand by lapse of time.
Judgment affirmed.
| WHITE j., COncurs In the decree.