*1009On 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 *1010application 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.