text:
    No. 9912.
    Thomas Mix vs. His Creditors.
    The plea of lis pendens is a declinatory exception, and cannot be permitted in an answer to the merits; and if incorporated in an answer, it is thereby waived and loses its efficacy as an exception.
    An exception to the jurisdiction of the court rations personae is likewise a declinatory exception, and must be pleaded in limine litis and before answering the merits.
    The terms and stipulations contained in act of mortgage consented, as a collateral security for an anticipated indebtedness for advances to be made in aid of the cultivation of the crop of cotton, must control the destination of the proceeds thereof; and same cannot be otherwise imputed or applied without the consent of the debtor and mortgagor.
    APPEAL from the Fifteenth District Court, Parish of Pointe Coupée. Yoist, J.

      Olivier O. Prevosty for Plaintiff and Appellee.

      James Vignes, Jr. and Martin Voorliies contra.

   The opinion cf the Court was delivered by

Watkins, J.

Thomas Mix made a cessio bonorum in March, 1885, and obtained the usual order staying all proceedings against his person and property.

He filed schedules of his property and lists of creditors, privileged and ordinary. At the meeting of his creditors he was chosen his own syndic. He was duly qualified, and on the 10th of October, 1885, obtained an order for the sale of the immovables, and the property was advertised to be sold on the 7th of January, 1886. An order was subsequently obtained by ordinary creditors, postponing the sale, and thereafter the present rule was taken by the plaintiffs, who are ordinary creditors of Mix, the insolvent, figuring on his schedule, against P. G. Gibert, the syndic, and recorder of mortgages of-the parish of Pointe Coupee, for the erasure and cancellation of his (Gibert’s) special mortgage inscribed against the immovable property surrendered by the insolvent and advertised for sale, as above related.

The defendant, Gibert, is a recognized creditor of Mix, and appears on the schedule as a creditor with mortgage on the property referred to.

The ground on which the plaintiffs in rule demand the cancellation and erasure of Gibert’s mortgage is that it has been paid; that the property surrendered is not sufficient to pay fifty cents on the dollar of the insolvent’s debts that'are due them, and that they are interested in the property, thus apparently encumbered, selling for the best attainable price.

They further represent that unless this mortgage inscription be erased, it will prejudicially affect its sale value to their prejudice and by diminishing the assets of the insolvent’s estate applicable to ordinary debts.

The amount of Gibert’s mortgage debt is $5000, while the estimated value of the property is only $3000.

I.

To this proceeding defendant filed an appearance, which he considered an exception, but which plaintiffs ask the court to treat as an answer.

It is of the following purport, viz: That in the rule to show cause, Gibert appears, stating: “Now comes P. G. Gibert, one of the defendants in the rule taken by E, Marqueze & Co., ordering him to show cause, on the first Monday in April, 1886, why the inscription of his inortgage against Thomas Mix, insolvent, should not be erased and the same declared extinguished, and who, for answer thereto, excepts, on the following grounds, namely:

“1st. The respondent is a citizen of the Republic of Prance, and has brought suit in the United States Circuit Court, entitled, P. G. Gibert vs. Thomas Mix, syndic, to establish the validity of his debt and mortgage, and which is still pending in said court.

“ 2d. That said mortgage is good and valid, as it was given to secure payment of two promissory notes and advances made to said Thomas Mix iu 1884, which are still due and unpaid.

“3d. That proceedings to annul and erase mortgages bearing on an insolvent estate cannot be brought by the ordinary creditors by rule, on motion, as in this instance ; but must be by direct action, especially when they have other remedies.

“ 4th. That respondent can only be cited at his place of domicile, and can only be compelled to answer when properly cited.”

The sheriff’s return shows that the defendant was personally served on the 1J tli of February, 1886.

The evidence was taken on the exceptions and rule to show cause at one and the same time.

Testimony was offered for the purpose of showing tho pendency of the suit, in the United States Circuit Court when the rule was filed, to which objection was urged by plaintiff, to the effect that by pleading to the suits defendant waived his dilatory pleas.

This objection was overruled by the court, and the plaintiff reserved .a bill of exceptions.

In treating of declinatory exceptions, the Code of Practice says:

41 There are two kinds of declinatory exceptions—

1st. When the exception is taken to the competency of the judge, pursuant to the rules above prescribed.

2d. When it arises from the fact of another suit being pending between the same parties, for the same object, and growing out of the same cause of action, before another court of competent jurisdiction.” C. P. 335.

The deeUnatory is a species of dilatory exception. C. P. 331.

On the subject of litis pendens the Federal jurisprudence harmonizes with our own. 93 U. S. 554, Staunton vs. Embry; 99 U. S. 169, Gordon vs. Gilford.

Since the opinion of this Court was announced in Chaffe vs. Ludeling, 34 Ann. 966, no dilatory exception has been permitted in an ansioer, •“ unless, at least, the exception was pleaded prior to any plea to the merits.” That decision quotes from Act 53 of 1839, whereby the conflicting provisions of C. P. 333 and 336 are reconciled. 35 Ann. 281, Boone vs. Carroll.

The defendant’s second exception is an answer to the merits. It avers that the mortgage and debt are good and valid, and the debt is «till due and unpaid.

Under the authorities quoted, the dilatory exception was thereby waived, and plaintiff’s objection should have been sustained.

The same is perfectly true, in respect to plaintiffs’ right to proceed by rule, as they did. It was competent for the defendant to waive any valid objection there may have been, to such proceeding, other than the want of jurisdiction of the court ratione materia, which is not claimed.

While treating of the effect of defendant’s exceptions, we may just as well dispose of the want of jurisdiction of the lower court, ratione persona, that is urged.

It is a general rule that one must be sued before his own judge, that is to say, before the judge having jurisdiction over the place where the defendant has ’:.is domicile or residence. C. P. 162.

But, if he be sued before a judge whose jurisdiction does not extend to the place of his domicile, and he plead to the merits, the judgment rendered will be valid. C. P. 93.

This is not an open question. 31 Ann. 90, Phipps vs. Snodgrass; C. P. 93; 333; 334; 335 and 336; 31 Ann. 582, Goodrich vs. Hunter; 29 Ann. 194, Marqueze & Co. vs. LeBlanc; 33 Ann. 655, Stevenson vs. Whitney.

In the instant ease the defendant excepted and answered at one and the same time. He could not possibly plead to the jurisdiction of the Court rationepersonen, and at the same time tender an issue for it to try. C. P. 333.

The case is thus left standing on the answer.

II.

The material facts to be considered are the following:

On February 20, 1884, Gibert rendered Mix an account current of transactions of 1883, showing a debit balauce of $7529 20.

Mix executed two promissory notes — one for $3000 and the other for $5421 64 — payable to the order of Gibeit, on tho 1st and 15th of November, 1884; and, therefore, Gibert gave him a receipt “ in full settlement of account rendered this day, showing balance dtie of $7539 20.”

There was added into these notes the sum of $882 44, what, doubtless, represented the discount.

A new account was opened, and the debit balance against Mix on March 25 was $1189 10; on June 30, 1884, $879 12; on August 23, 1884, $3281 73; on November 22, 1884, $8103 12; on February 7r .1885, $5066 80. .

With this last balance the account is closed.

On the ist of May, 1884, Mix executed a mortgage iu favor of Gibert, on his plantation aud improvements situated on False river, in the parish of Pointe Coupee, to secure the payment of two other promissory notes, of eren date therewith, one for $2500, due and payable on the 1st of February, 1885; and the other for $3000, due and payable on the 1st of March, 1885. Said notes were delivered to Gibert, who is designated in tho act as payee and mortgagee.

The consideration of those notes is set out fully in the aet, to be to enable Mix, the mortgagor, to cultivate and gather his crop of cotton ■of that year, and to carry on his mercantile business, for which purpose he -would require advances of supplies and ready money to the extent of $5000, which G-ibert, the mortgagee, undertook to furnish.

The act recites: “Now, therefore, in liquidation of said advances to be made by the said P. G. Gibert to the said Thomas Mix, to the extent of the aforesaid amount of $5000, in such sums as he, the said Mix, shall deem proper; and in order to facilitate to said P. G. Gibert the negotiation and collection thereof, the said Mix has presented his two promissory notes dated this day,” etc.

As a further security for their payment, Mix obligated himself to-ship to Gibert the entire crop of cotton to be raised on said plantation, and such other cotton as he should control in his business during the then current year.

The act contains the further clause, viz : “ It is further stipulated and covenanted that if any advances be made beyond those herein stipulated, they are to be paid out of the first proceeds coming to hand, and that imputation of payment shall be first made to all open accounts that may be existing between the eontraeting parties, leaving the liabilities herein represented by the promissory notes to be paid out of subsequent proceeds.”

Recurring to the various accounts that Gibert rendered to Mix, at different dates, it appears that there was at no time a debit balance against Mix until the 22d of November, 1884, when it was $8103 12.

An examination of that account shows that on November 4, 1884— the date when Mix’s $3000 notes went t.o maturity — the amount of it, with interest, was debited to Mix; and on the 18th of the same month, when the note for $5431 64 became due, the amount of it, with interest, was debited to him also.

These amounts and interests aggregate $8450 42.

Deducting the balance of debit against Mix, on account of date November 22, 1784, and there would be a ereclii balance of $347 30; or, in other words, there was not only nothing due by Mix, at that date, on his 1884 account — represented by the two notes and mortgage of May 1, 1884 — hut there should be, and really was, a balance to his credit of $347 30.

An examination of Gibert’s subsequent account, rendered February 7, 1885 — and which shows a debit balance against Mix of $5066 80 — and there appears the debit balance from last account brought-forward $8103 12, and he is also charged, on February 7, with his note of $2500 and interest.

It is perfectly manifest that both of these debits are erroneous. The former has been explained, and the latter was only held as a collateral security for whatever balance Mix might owe on account.'

These two items aggregate $10,605 34. Deducting the balance of> debit against Mix, on account of date February 7, 1885, and there would be a credit balance in his favor of $5538 50.

To this should be added the credit balance ascertained to be due Mix on November 22, 1884, of $347 30, which would make the credit balance due. Mix on the 7th of February, 1885, of $5885 80.

According to this calculation, Mix has not only satisfied his account for 1884, to secure which the notes and mortgage of May 1, 1884, were .given; but he has a balance to his credit on that account of $5885 80. ’

It is obvious that the notes and mortgage held as collateral security therefor, on the theory presented, possess no value whatever, and the inscription should be canceled and erased.

III.

It became necessary, to a proper elucidation of the question argued in reference to the imputation of payments, to transpose, and first present the status of Gibert’s account against Mix.

There is nothing in the act of mortgage authorizing Gibert to enter in Mix’s 1884 account the amount of his two notes, he had given “ in full settlement ” of his 1883 account, in the manner he did. The clause we quoted above is to the effect that if Gibert made any advances “beyond” those stipulated, therein, they were to be first paid; and that the proceeds of crops should be imputed to the open account, in excess of that specified therein, in preference to that specifically secured thereby. Inasmuch as there was no open account in excess of that secured, the clause in reference to the imputation of payment is without signifiance.

Mix, as a witness, says : 1 never authorized Gibert, or consented in any way to his imputing the proceeds of cotton, etc., shipped to him to the payment of the debt on the notes.”

In the absence of any consent on the part of Mix to thus apply the proceeds of cotton shipped to Gibert, the other provisions of the act should be enforced. They are a law between the parties. The act recites: “ For the same purpose, and for the entire amount, the crops made and grown on said plantation, this current year, is hereby pledged and pawned.” The crops became thereby consecrated to the payment of the 1884 account, by contract as well as by law, and their proceeds could not take any other destination without Mix’s consent. The terms of the written act must control the inference to be drawn from the implied admission by account rendered.” p

In our opinion the in or I gago indebtedness, or that the mortgage was intended to secure, has been fully paid, and Mix has a balance to his-credit of the notes lie executed in settlement of his 1883 account.

The judgment appealed from should be reversed.

It is, therefore, ordered, adjudged and decreed that the judgment appealed from he avoided, annulled and reversed; and proceeding to render such judgment as should have been rendered in the court below:

It is ordered, adjudged and decreed that the mortgage in favor of P. G. Gibert, of date May 1, 1884, be cancelled and erased, and the-notes and accounts intended to be secured thereby are satisfied and fully paid.

Judgment reversed.

On Avrr.TCATioN for Rehearing.

Counsel for Gibert insist that our decree is ultra petitionem.

He says: “The demand relates to extinguishment of the mortgage-by a process of imputation of payments different from that made by Gibert, leaving him, as a consequence, an ordinary creditor for the full amount claimed by him, and for which he is placed by Mix himself on his schedule as a mortgage creditor.”

The language of the petition is “ that said mortgage, if it ever-existed, has been extinguished by payment before the institution of these proceedings in insolvency.”

We simply decided that the inscription of Gibert’s mortgage must be canceled and erased, because the debt it secured had been'paid. The opinion did not treat o.r dispose of any other debt. They remain open to future controversy.

Rehearing refused.


source: Caselaw Access Project

author: Bermudez, C. J.

license: Public Domain

text:
    No. 9843.
    Mrs. F. K. Philips and Husband vs. A. Lehman & Co. et als.
    Creditors who, pending a proceeding irv insolvency, elect a syndic who sells under judiciftj sanction the property mentioned in the hilan, cannot be held in damages, though the proceeding he subsequently annulled and dismissed, when the petition is barren of the-, charge of malice and want of probable cause.
    Forced into court by the debtor, they had a right to protect themselves. If any injury has-been sustained in consequence by such debtor, it is damnum, absque injuria, for which, no recovery can he had.

      APPEAL from the Civil District Court for the Parish of Orleans. Houston7 J.

      Gus A. JBrecmx for Plaintiff and Appellant:
    Where a claim for damages for tort, done by legal proceedings, is based on such unlawful proceedings, prescription of the action commences to Tun only from the final termination of the suit. Bogas vs. Juillard, 25 Ann. 347; Harvey vs. Pflug, 37 Ann. 906 ? Wentz vs. Bernhardt, 32 Ann. 637.
    The doctrine of damnum absque injuria does not apply where the tortious acts are shown to* have "been done in proceedings decreed absolutely null and void, and as “ having never had any existence."
    All proceedings in Phillips vs. Her Creditors, for a cession, declared null, void and of no-effect. Phillips vs. Her Creditors, 36 Ann. 904; 37 Ann. 701.
    The litigation between plaintiff and defendant as to the validity of the forced cession finally determined July, 1885. 37 Ann. 701.
    Suit brought December, 1885.
    (a) Tlio court will notice its own decrees in the case. Minor vs. Stone. 1 Ann. 283.

      Braughn, Buck, IHnkelspiel <& Hart, W. S. Benedict, F. J). Ohrétien and Gluts. Lou que for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action sounding in damages. It is brought to recover: 1st, the value of property which the defendants, it is charged, have taken and converted to their own use, without any justification; 2d, for injury done to reputation and business.

On the exceptions filed, the Court ordered the plaintiff to amend, so as to state more specifically the nature of her claim for the value of the property, and dismissed the suit for damages alleged to have been done her credit.

The plaintiff appealed from the entire judgment; hut here states that she merely complains of the dismissal of her suit, so that we are not called upon to pass upon the appealability of the case on the first branch, and have only to determine whether the suit, on the second branch, was or not properly dismissed.

The exceptions set up urged no cause of action and prescription.

It appears that the. plaintiff, in the beginning, applied for a respite, which was refused by her creditors. The proceeding was then converted into a cessio honorum. A suspensive appeal by plaintiff' from the decree of the court putting her in insolvency, haviug been dismissed by this Court, she afterwards applied for a devolutive appeal. She subsequently, also, appealed from a judgment homologating a tableau of distribution, proposed by the syndic. Considering that the proceeding for a cession was a nullity, and that all subsequent proceedings, based thereon, had to share the same fate, this Court dismissed the application for a respite and afterwards reversed the judgment of homologation. 37 Ann. 701; see, also, 36 Ann. 904.

In the meantime, the syndic elected by the creditors had procured an order of sale, under which the stock of plaintiff, mentioned in her Mian, was sold.

The defendants were creditors of plaintiff. Forced into court by her, they had a right to protect their interest. The cession having been decreed, they could elect a syndic to liquidate her affairs under judicial authority.

Surely, as the proceedings were annulled and the distribution of the funds by a tableau presented and offered, was denied, the plaintiff lias a standing to demand, the value of the stock taken possession of and sold ; but she certainly cannot claim damages for whatever injury she may have sustained in consequence of such acts.

She makes no charge on the defendants to draw in question their good faith and honest intentions. This was essential. To hold them responsible, averment and truth of the charges are indispensable. No improper motive is alleged against the defendants, who appear to have acted for their own protection only.

If the plaintiff has thereby sustained any injury, the damage is üamnv/m ab'sqne injuria. Louque vs. Drez, 37 Ann. 84.

This view of the case renders unnecessary a consideration of the plea of prescription, which was not, however, passed upon below.

Judgment affirmed.


author: Fenner, J. Bermudez, C. J.

text:
    No. 9814.
    Stauffer, Macready & Co. vs. Henry R. Morgan.
    The presumption of law is that property purchased during the marriage, whether in the name of both or either spouse, is communitj' property.
    When, however, the property is bought in the name of the wife, she has the faculty of rebutting this presumption by showing that she purchased the property by the investment of her paraphernal funds, which were administered by her separately and apart from her husband.
    She carries the burden of proof of three crucial, facts ; (1) Paraphernality of the funds ; (2) administration thereof separately and apart from her husband; (3) investment
    Where a man, on the eve of marriage, gives to his intended spouse a check for §20,000 ou a banking firm, the donation may be incomplete and revocable at any time before actual collection of the check by the donee; but-when she has presented the check and the drawees have honored the same by placing the amount to her individual credit, under her instructions, the donation is complete, and the funds are her paraphernal property.
    The case is not affected by the fact that the husband was a member of the banking firm. The firm is a legal entity, separate and distinct from its members, and the possession, custody and obligation resulting from such deposit were those of the firm, and not of the husband, as a member.
    When the account thus opened with the wife is kept in her name and subject to her exclusive order and control, without interference by her husband, this constitutes a separate administration by her.
    'The property here in controversy, having been bought in the name of the wife, by her consent and. direction, and having been paid for by her check against her account with the bankers, and having always been regarded and treated as her separate property, it cannot be subjected to the debts of the husband or of the community.
    The purchase price of property acquired by an agent in the name of a married woman, with her husband’s authority, is considered as paid out of her funds, although the agent •drew on the husband for the same, when the evidence shows that the check was endorsed by the husband to be paid out of his wife’s money, and she herself directed her bankers to do so, and that it was thus done.
    APPEAL from the Civil District Court for the Parish of Orleans. Houston, J.

      Farrar £ KruttseJmittfor Plaintiffs and Appellants:
    I.
    Property purchased in the name of either spouse during marriage becomes an asset of tho community (C. C. 2402); and the fact that a title is taken in the name of the wife does not make even a beginning of proof that the property is paraphernal.
    II.
    In order that property acquired during the community in the name of the wife bo considered paraphernal, it is absolutely essential that three crucial facts should concur, viz :

      {a) Paraphernality of funds.
    <&) Separate administration by wife.
    <c) Investment by her. Baclvino vs. Costo, 35 Ann. 570; Santmanat vs. Souk, 33 ¿ nn. 012 ; Shaw vs. Hill, 20 Ann. 531; Gonor vs. Husband, II Kob. 526; Toirell vs. Cutrer, i Hob, 367.
    III.
    A mere promise to give cannot bo enforced under any system of jurisprudence. Delivery and acceptance are the essence of a donation. Succ. of Depouilly. 22 Ann. 97; Burke vs. Bishop. 27 Ann. 466 ; Byles on Bills, p. 198. § 123; Waite on Actions and Defences, rol. 3, p. 489.
    IV.
    W3lile the law is undisputed that the husband may be the agent of' the wife for the administration of her paraphernal funds, the law is equally well settled that the agency in such a case must be express, public and clearly proved. The husband must act unequivocally jura mandaU and not jure mariti. Miller vs. Handy, 33 Ann. 164; Trezevantvs. Sheriff, 38 Ann. 146.

      Nidholls & Oar-roll for Mrs. P. O. Morgan, Intervenor and Appellee:
    When a husband, having large meaus and being eufcirely solvent, makes a donation of money to his wife, which she reduces to possession, and when years afterwards a partnership to which he belongs becomes insolvent, a creditor of that partnership, holding a claim which arose long after the donation, has no interest in and cannot attack or question the precise form or manner in which the donation was made or the money paid. 5 H, S. 196; 11 Ann. 401; 12 Ann. 733; 10 Ann. 540; 13 Ann. 377; 21 Ann. 343; 10 Ann. 575; 21 Ann. 118; 24 Ann. 597.
    Where a husband, prior to bis marriage, gives to his intended wife a check on a banking firm of which lie is a partner, and where this check is honored by said firm and tbe amount thereof is placed to the individual credit of the wife, who draws on it at will on her own signature, solely, such action on the part of the husband constitutes a full and complete donation, and tbe action of the fu m operates a complete payment of the check, and the amount represented by the check becomes the paraphernal property of the wife. 26 Ann. 189; 32 Ann. 1252; 6 Ann. 517.
    And where, under these circumstances, property U purchased in tbe name of the wife with funds standing in her name on the books of the partnership, such property becomes her paraphernal property, and creditors of the partnership on a claim arising subsequent to such purchase — -creditors who make no protense of fraud, simulation or injury of any kind — have no right to question or attack the wife’s title. 6 Aim. 547: 17 Ann. 27; 19 Ann. f.16 ; 21 Aim. 5; 33 Ann. 894; 5 N. S. 196; 11 Ann. 401; 12 Ann. 735: 32 Ann. 1252; 26 Ann. 189.
    A donation need not necessaiily he by notarial act. 2 L. 21, 41; 14 Ann. 96; 17 Ann. 231; 33 Ann. 163.
    An act, though void as a sale, because without a price, may, when there is no j ust cause for its annulment, be valid in another form, aH an exchange, donation-or pledge- Nor can it be questioned by third persons, unless, not only simulated or fraudulent, it also prejudice. Henn. p, 1326, No. 12; Wolf vs. Wolf, 12 Ann. 429.
    Where a partnership to which a husband belongs honors a draft drawn by him and opens an account with tbe payee, who draws against the same at will and has absolute control over it, and where there is no charge of fraud, simulation or injury, the partnership and its individual members iand their creditors) are estopped from contesting the title of the payee to the funds, particularly on a question of form.
    Where a party undertakes to act for another and takes title to property in tbe name of such person, and where such action is approved and ratified, neither the party acting nor any third party (not charging fraud, simulation or injury) can question the authority of the party acting or tbe evidence upon wbicli he acted. 4 M. 447; 6 N. S. 511 ; 13 Ann. 18. Where a person creates an interest on behalf of another, be cannot destroy that interest without giving the other party au opportunity to accept or reject it; and when it has been accepted, no third person (not charging fraud, simulation or injury) can contest such interest- 14 Am.. 632; 4 M. 409; 33 Ann. 324.
    The question of the administration of the paraphernal property of the wife is totally irrele- • vant, except where that question affects the ownership of the funds invested by the wife in her name.
   The opinion of tlie Court was delivered by

Fenner, J.

Plaintiffs, creditors of tbe insolvent banking firm of M. Morgan’s Sons, of New York, whereof defendant was a member, sued tbe latter by attachment, under which two pieces of real estate standing in the name of Mrs. Penelope O. Morgan, wife of defendant, were seized.

Mrs. P. O. Morgan intervened in the suit, claiming the property under seizure as her paraphernal property.

Plaintiffs answered her intervention, averring that the property had been acquired during marriage under the regime of the community of acquests and gains, and formed part of the community and was liable for its debts.

From a judgment in favor of the iutervenor maintaining her separate ownership of the property attached, this appeal is taken.

The plaintiffs’ case presents no feature of the revocatory action or the action en déclaration de simulation. It rests simply on the proposition that the property belongs to the community and is liable for its debts, hecause purchased during the marriage. Such is undoubtedly the presumption of the law, whether the purchase was made in the name of both or either of the spouses.

But when, as in the instant case, the purchase is made in the name of the wife, she lias the faculty of rebutting this presumption by proof that she purchased the property, as her separate property, by the-investment of her paraphernal funds, which were administered by her separately and apart from her husband.

As tersely stated by plaintiffs’ counsel, the crucial facts are: (1) paraphernality of the funds; (2) administration thereof by her separately and apart from the husband; (3) investment by her. Of these facts she carries the burden of proof.

So far as one of the properties, known as the coal yard, is concerned, her proof is so conclusive that plaintiffs abandon the contest as to it.

The other, designated as the Ocean Sa w-mill property, is alone left-in dispute.

The evidence shows that on December 29, 1880, Henry It. Morgan, at that time a millionaire, being about to leave New York for New Orleans to marry the intervenor, drew a check on his firm of M. Morgan’s Sons, of which he gave notice to the firm, stating that it was intended as a present to the lady whom he was about to marry.

On January 15, 1881, the day of t.lie wedding and before the ceremony, he presented and delivered this check to her.

She endorsed the check and forwarded it by mail to the firm of Morgan's Sons, with request to honor the same and place the amount at her individual credit.

The firm took up the check, opened an account on their books in the name of Mrs. Morgan and passed the amount to her credit.

On the 25th of April, 1881, defendant made another present to his wife of $15,000, which was placed by the firm, under his orders, to the same account.

The evidence is positive and undisputed that in the conduct of this account the firm dealt with Mrs. Morgan precisely as with any other depositor, allowed her interest on her balances, and honored her checks,. which she drew at will in her own name without any authorization of' her husband, and that he never, in any manner, controlled or interfered with it. '

In June, 1881, defendant, being in New Orleans, was informed of an-opening for an investment in this Ocean Saw-mill property, and concluded to make it. He authorized Mr. Jno. C. Morris, president of the Canal Bank, to accept the sale and draw on him for the price. But, .after reaching New York and seeing his wife, it was determined that she should purchase the property and pay for it as an investment of her separate funds. Accordingly, Mr. Morris was instructed to take the title in the name of Mrs. Morgan, arid this was done and he accepted it as her agent. He drew on Mr. Morgan for the price, and when the -draft reached New York, Mrs. Morgan wrote across the face of it: M. Morgan’s Sons will please pay this draft, and charge to my account. ^Signed) P. O. Morgan.” The payment was made accordingly and charged to her account, which then liad at its credit the amount of $35,597.62.

The property yielded no revenues, and Mr. Bradish Johnson, who' was a co-owner, attended to the paying of taxes and expenses on it,. and she repaid him the amount of her share by checks on her own account.

On these facts, the plaintiff's contend :

1st. That the funds from which the payment was made, to wit: the amount at her credit with M. Morgan’s Sons, were not paraphernal funds, because there was no valid and complete donation thereof by •the defendant to Iris wife, because the manual delivery of a check of the donor to the donee is not a completed donation but a mere power of attorney to collect the check, revocable at any time before actual collection or by the death of the donor, and that the donation did not become effective until the check had been actually collected and the proceeds reduced to possession by the donee.

G-ranting the' correctness of the proposition of law, wo are satisfied. that the presentation of the check to the firm on which it was drawn and the placing of the proceeds, under her instructions, to her credit, was an effective collection of the check and a reduction of the proceeds to her possession.

Counsel for plaintiffs admit that if the check had been drawn on any • third person, or on a firm of which defendant was not a member, the presentation of it and passing of the proceeds to credit as instructed would have been a delivery to the donee. But he contends that the credit on the books of M. Morgan’s Sons did not divest the possession of defendant, which continued, as a partner, jointly and severally with the other partners, and, therefore, did not constitute delivery. This is to ignore the elementary principle that a partnership.is, in contemplation of law, a legal entity,’separate and distinct from the in dividual members; and that, partnership possession, custody and obligation are different from those of an individual member. The distinction sought to be drawn by plaintiffs’ counsel has no foundation in law and as little in reason.

2d. Tt is claimed that, for the same reason, the funds remaining in possession of a firm, of which the husband was a member, could not have been under the wife’s administration, separate and apart from him. This position is equally unsound with the former one, and only-serves to expose more forcibly the unreasonableness of the contention. Certainly, a wife who has paraphernal monies in her possession is not bound to carry them in her pocket. She may deposit them with any banker, and, if there is a bank or banking firm with which her husband is connected, that should be a reason for preferring such one to' another. Her funds, at her credit with such bank or bankers, remain as much under her control and administration as elsewhere. Her husband, though a member of the firm, would have no power or authority to destroy the right of his wife to control the funds, or the duty of the firm to respect her orders.

3d. Plaintiffs claim that the investment in this property was not made by the wife, but by the husband. It is true, no doubt, that the original design was that the husband should purchase. Rut it is perfectly clear that, before the consummation of the transaction, with the joint consent of both husband and wife, this design was changed into an actual and bona, -fide purchase by the wife, for her separate account, and with her paraphernal funds. There is nothing in the slightest degree suspicious about this transaction ; • no suggestion of, nor motive for, any fraud, simulation or concealment. The husband was a very rich man, entirely free from financial embarrassment. Circumstances which, in a different case, might furnish ground for suspicion, have here no significance whatever. On the face of the transaction and under the uncontradicted evidence, the purchase was made in the name of the wife, under her authority; the price was actually paid by her with her paraphernal funds, and the property has, ever since, been regarded and treated as her own.

We think she has fully discharged the burden of proof resting on her and has successfully rebutted the presumption of law that this property purchased during the marriage was community property.

Judgment affirmed.

On Application nor Rehearing.

Bermudez, C. J.

The only ground on which the application rests is that the property was acquired with the funds of the husband, -obtained on his credit, and that even if the obligation of the husband "was subsequently extinguished with the funds of the wife, still the acquisition was made with the fnr.ds of the husband and the property ' belongs to the community.

The evidence shows that, to reimburse himself, Morris drew ou Morgan, the check passed through the Canal Bank, who endorsed it over to Morgan’s Sons for collection, who collected the amount, not •from Mr., but from Mrs., Morgan.

When the check got to New York, Mr. Morgan, instead of paying it, •endorsed it: “ Charge Mrs. P. O. Morgan's account. Henry Morgan.” It was also endorsed by Mrs. Morgan : “ Morgan's Sons ■will please pay this draft and charge to my account. JP. O. Morgan.”

The account of Mrs. Morgan then balanced a larger amount in her favor.

The check was accordingly paid and charged up to her account.

The fact is insignificant that the check was endorsed by Henry Morgan, directing it to be charged to his wife’s account. It repels all idea that the check was paid out of his funds, and as it was honored out of Mrs. Morgan’s funds, the fact of x>ayment by her is conclusive in her favor and against all adverse interest.

Rehearing refused.


author: Bermudez, C. J. Watkins, J.

text:
    No. 9607.
    Bernard Klotz vs. Charles Macready et al., Executors.
    . A surviving partner, bound by tlie articles to liquidate tbe concern within six months after the dissolution of tbe partnership by death, and who has no rights, after tbe expiration of that term, to prolong tbe liquidation, is liable for the value of all tbe assets at tbe termination of tlie delay, when they cannot bo returned in integrum.

    -Such partner cannot shield himself from responsibility by showing that those assets have been sold by judicial authority, when it is shown that the property apparently adjudicated to outsiders, and which never left bis possession, has been transferí ed to him for ihe same prices, on the same day, or shortly after, conformably to a previous understanding.
    1 Where part of such assets is not thus transferred, in consequence of a deception, tbe partner will nevertheless be responsible, when it appears that bidders were deterred from bidding for bis benefit.
    ‘The succession of the deceased partner is entitled to recover, after deducting the liabilities from the assets, the share to which the deceased is, by tbe articles of partnership, authorized to claim in tbe residue, with legal interest from the expiration of the delay allowed for the liquidation of the concern.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      T. J. Seinmes & Legendre, T. Gilmore & Sons and J. Ad. Bonier for the Executors, Appellants:
    Land purchased by a commercial partnership belongs to tiie individual niembors as joint owners, and not to the partnership. 30 Ann. 800; 35 Ann. 839.
    The partner who makes advances beyond capital agreed on is entitled to .interest. ]29 Mass 518; 2 Lindley Part.,.see. 787; 2 Lansing, 300.
    Partner has no right to withdraw his capital during the partnership. O. C. 2858; 129 Mass 518; 2 Lindley Part., soo. 611.
    The partner who. after the dissolution of the firm, uses partnership assets in new business is liable for profits or interest, at the option of the plaintiff 2 Lindloy Part., secs. 977-9 25 G-ratt. 536; 1 Giflard, 86; 4 Myl. & Craig, 41; 9 Hare, 141; 8 Ch, App. 323 (n).
    Co-partner in the new business nota necessary party unless a judgment is sought against him for knowingly participating in the broach of trust. 1 Giflard, 86; 2 Lindley Part., see. 979; 58 H.H. 449. !

      W. S. Benedict and A, J. Murphy for Plaintiff and Appellee.
   The opinion of the Court was delivered by

Bermudez, C. J.

This is an action for the settlement of a partnership once existing between Margaret Haughcry and Bernard Klotz for the bakery business. It was originally formed to last ten years, but it expired at the death of the former partner, which occurred on February 9, 1882.

While on the one hand the surviving j>artner tenders $3360 86 as the share accruing to his deceased partner, the executors of the latter insist that the real sum due is $40,997 02, for which there ought to be .judgment with interest.

After hearing a large number of witnesses and considering a mass'of written evidence, the district court found that the residue consisted of real estate and an oven, and a sum of $22,030 59, which it directed should accrue equally to the parties, or $11,015 29 to each partner, besides half of the property. From this judgment defendants appeal.

Answering the appeal, plaintiff prays that the judgment appealed from he amended so as to conform with his accounts.

It appears that by the articles of partnership the survivor was, in ■case of dissolution thereof by death, to he allowed six months to wind up the affairs of the concern; that at the expiration' of that delay, however, Klotz had himself appointed liquidator, inventorying the property in his hands and disposing of the same, under the provoked •direction of the court which had appointed him.

On appeal from the different decrees rendered in the course of the proceedings, this Court held that Klotz had no right to enter upon another term of liquidation, in the face of the opposition of the executors; that his appointment, as well as all the orders procured by Mm to sell out tlie property of the partnership, were unwarranted and' ought to be (and they actually were) annulled, and the application was rejected. 35 Ann, 596.

The record shows that, notwithstanding the appeal which, it is-claimed, operated suspensively, Klotz had the property offered for sale by an anctioneer, and that it was adjudicated to certain parties,, at prices far below its valuation in the inventory. The real estate, though adjudicated, however was not taken by the bidders, ail'd remains in kind. The property otherwise bid off, in all instances, save one, appears to have been transferred by the adjudica tees, on the same-day, or some short time after, for the same prices to Klotz, or the partnership, which he had formed with Joyce, a former clerk of his-

The account which Klotz presented, pending the suit, is open to many attacks which were actually made upon it.

It implies the validity of all the proceedings had by him as liquidator; but as his appointment was annulled, and as there are no third persons concerned, those proceedings must be considered as though they never existed; the more so, as all'the property said to have been sold, except in one instance, is now, from Klotz’s own standpoint, in his possession as owner.

The parties, at least, two of them, to whom the property was so adjudicated, and who afterwards passed it to Klotz at the same prices,, appear as sureties on the latter’s bond as liquidator. They must have known that he was acting in a fiduciary capacity, at least as agent, and that as agent, he could not buy the property of his principal, directly or indirectly.

It is claimed that they acted in good faith ; but it seems strange that they undertook to buy objects for which they had no use, which they did not care about, which never came to their possession, and which they subsequently passed to KIolz at the prices of adjudication. This is the more singular when it is considered that it appears that bidders were deterred at the sale, in some cases, on the representation, expressly or impliedly made, that Klotz was buying or intended to buy.

It is remarkable-that the property thus bid off, at prices frightfully below the appraisement thereof, appears, after the transfer by the adjudicates, to have been acquired by Klotz’s new firm at prices surprisingly superior.

The decrees appealed from and reversed, under which those transactions took place, may well be assimilated to a judgment appealed from and reversed, under which, in the meanwhile, the judgment creditor acquires property of his judgment debtor and detains possession ot' tlie same. In such cases, the rule, well founded on reason, equity and law, is that the defendant is entitled to restitution of the thing itself in integrum, for none is injured, save the wrong-doer himself.

Prom this standpoint, which is the correct one, the assets comprising the active mass of the partnership must be viewed as in the possession of Klotz, and must be dealt with as though no proceeding whatever had taken place, after the expiration of six months, within which he was to have wound up and done what the articles required of him, viz: “Make and render a true, just and .final account for all things relating to the business and a true adjustment and division of the stocks and profits thereof.”

Although, in legal contemplation, the property is or ought to be there in integrum, it does not, however, follow that, by surrendering it to-day, as it is, Klotz can relieve himself from the consequences of his illegal acts and persistent dereliction of duty.

That property .is surely not, at present, in the condition, in point of worth, in which it was at the expiration of the delay allowed for winding up. it has been used by Klotz for the purposes of the new firm. Unavoidably, it has considerably deteriorated, after a use exr ceeding four years. Being more or less worn out, it cannot be tendered at all, as property in integrum.

This condition of things is brought about by Klotz himself. It is the legitimate result of his failure to perform his obligations, in time,. as tlie surviving partner. He would' have no one to blame but himself, if any injury has been sustained; but the evidence shows that,, by using that property, in the business of his new firm, he has realized piofits, comparatively quite large.

The value of the property at the end of the six months, less debts- and charges of the old partnership, must serve as the basis of his accountability', and the residue, actual and constructive, must be equally apportioned between the partners.

Among the property offered for sale by the auctioneer, were iwc flue boilers, which had cost $1000 two years before. These were adjudicated for $275, but were afterward sold to a boiler maker for-$800, without being moved.

It appears that they were being bid on by a by-stander, who stopped bidding, because told, by the party to whom they were subsequently adjudicated, that he was purchasing for Klotz. It also appears that there had been, previous to the sale, au understanding between the latter and this adjudicatee, to that end, and that after the sale Klotz, who had expected a return of the boilers, complained that the adjudicatee had not treated him right.

Leaving out of view the question whether the order of sale was or not suspended by the appeal, it is manifest that from the incipiency throughout, Klotz was impelled by selfish considerations, the object of which was to enrich himself per Jas et nefas, at the expense of the estate of his deceased partner, and that had it not been for the de■ception practiced .on him, and of which he bitterly complained, the boilers, like the rest of the property, would have gone back to him.

Had such been the case, he most assuredly could be held for their value, but the difficulty is removed by the consideration that had he not combined as he did, the boilers • would have realized their value.

We, therefore, deem that ho should be responsible for the boilers, as he is for the other property.

The parties have taken much trouble and pains to show what amount accrues to the succession of Margaret Haughery. We have patiently followed them in their respective theories and computations, and considered their conclusions; but cannot justify the result to which either side has arrived, particularly that presented by the surviving partner, who has operated upon foundations of no solidity, and which have entirely given way, with the structure elected upon them.

He has been unable to convince us that a most prosperous partnership which, from June 30,1879, to August í), 1882, realized as profits $63,066 61, and the assets of which aggregated at that last date (which is that of the expiration of the six months to wind up), $58,857 28, nets actually $3360 86 only, as the share of the succession therein — a share for which he himself, about that time, had offered to the executors, $32,000, but which the latter declined, as inadequate.

The theory of the executors and their computations of the rights of the parties appear, to a certain extent, moie consonant with the law governing in such eases and with the accounts and facts disclosed by the record.

They admit the conclusions of the lower court, in a measure; but they complain that the judge has entirely omitted to debit Klotz with the large amounts which ho has drawn and with which he ought to have been charged.

We find that this complaint is well founded.

After deducting' from the assets, which include Klotz’s debit, as well as the value of the real estate and oven, and a mortgage note of $10,-000 paid, and the other liabilities of the partnership, the executors conclude, rightfully we think, that the rights of Margaret Haughery’s succession ought to amount to $31,341 65; but they err when they assume that the succession is also entitled to one-half of the profits realized by the new partnership, viz: $9655 37 — the total of these two amounts being the $40,997 02 mentioned in the beginning of this -opinion.

We feel no hesitation in adopting the correctness of the former conclusion as to the $31,341 65, as that sum is less than that which Klotz had offered to the executors as the value, put by himself, on the share of the succession in the partnership, but which the executors, under a commendable sense of duty, did not, deem themselves authorized to accept.

This amount, liad it been seasonably paid, would have realized fruits in some form in the hands of those whom the testatrix had designated .as the worthy objects of her charity; hut it was not paid. It was retained by Klotz, utilized by him and is represented as having assisted in enabling him to realize for his new firm profits nearing $20,000.

If it were true that the succession is entitled to half of that sum, under the law, it would he because the succession was a partner in the concern. .Such being the ease, would it not likewise he true that, if instead of realizing profits the concern had become involved, the succession would have had to bear half of the. debts and liabilities, and thus possibly put into insolvency V

IT To recognize this theory as a proposition authorized by law would be to promulgate quite a dangerous doctrine, for which no precedent has been shown in this State. The reason for repudiating this theory is that successions cannot be considered as beings, susceptible of forming a partnership. The object of the law regulating the settlement of successions is to liquidate them promptly and prudently, so that when this is accomplished the residue passes at once to the heirs, whoever they be, testamentary or legal. When this is done the ■succession, as such, exists no more.

Although the executors cannot share the profits of the now firm, it ■does not follow, however, that the amount which they ought to have received at the expiration of the six months allowed to wind up and which has served to enrich that firm, shall remain barren and impoverish the recipients of the bounty of the testatrix. They are entitled to legal interest from, the 9 th day of August, 1882.

It is, therefore, ordered and decreed that the judgment of the lower court be amended so as to entitle the succession of Margaret Haughery to recover from Bernard Kioto thirty-one thousand three hundred and forty-one dollars' ($31,341 65), instead of eleven thousand and fifteen dollars and twenty-nine cents ($11,015 29), with legal interest from the 9th day of August, 1882, till paid, and costs of suit in both courts,, besides the undivided half of the real estate and oven mentioned in this petition, and that thus amended said judgment be affirmed.

On Application for Rehearing.

Watkins, J.

We have been presented with quite an elaborate application for a rehearing of this cause, and but for counsel’s disclaimer, should feel disposed to consider it censorious and disrespectful.

We sincerely trust that we shall not, in the future, feel constrained to mention to attorneys their obligation of courtesy to the Court.

We have carefully examined and considered the application for rehearing; read all of the briefs of counsel again ; made a careful inspection of the two transcripts, and compared them with our opinion, and have reached the conclusion that the principles of law therein announced are entirely correct.

For the purpose of being accurate and of bettor condensing the statement of the case, we will cite a few of the salient facts we have gleaned from the record :

On the 29th of June, 1878, Margaret Haughery and Bernard Kioto formed a partnership for the purpose of conducting a bakery business for a term of ten years.

They were full and ecpial partners, and the profits or losses were to be shared by them equally, and all the expenses of the business were to be borne by each proportionately.

Margaret put into the partnership merchandize, etc., valued at $20,000, as the capital stock, and donated to Kioto one-half interest therein; and this donation constituted his part of the capital invested in the business.

The partnership did quite a profitable business until the 9th of February, 1882, when Margaret died.

Klotz, as surviving partner, was, under the articles of partnership, entitled to retain control and continue the administration of the partnership affairs for a period of six months thereafter.

On the 15th of October, 1879, Margaret and Klotz purchased of John T. Moore the real estate which figures on the inventory and on which the partnership business was conducted, then and since, for the price of $15,500.

On the 20th of February, 1882, the defendants, as the testamentary executors of Margaret, caused an inventory and appraisement to be made of all the partnership effects, ft covered, substantially, the following values, viz:

Goods and personal effects...............................$20,268 81&

JEteal estate.............................................. 14,000 00

Book accounts........................................... 14,990 00

Total value........................................$49,258 81 Of this, $1500 was in cash.

At this date the six months’ term of Klotz’s administration as liquidator began, and it closed on August 20, 1882.

There were large profits made by him during that term.

Mr. Chapotin, one of the persons chosen by the executors to examine the books of the firm, and upon whose reports all parties seem to' rely — as witness for the plaintiff says, on this subject:

Question. “Mr. Chapotin, from your examination, that you have made of the books, can you tell us whether or not the firm of Margaret Haughery & Co. made any money or profits since the ninth of February ? ”

Answer. “Certainly.”

Q. “Well, what profit did they make?”

A. “I took a memorandum from the 9th of February, 1882. They made sales, $87,948, and made a profit of 31% = $27,197 gross.”

Q. “That was for four months f

A. “Yes sir; for four months.”

This witness shows what had been the net profits of this partnership. during previous years, as follows, viz:

Mr. Klotz’s share of the net profits of the first year was.....$ 9,184.23

The second year.......................................... 7,989.38

The third year........................................... 3,487.97

The fourth year (to June 20).............................. 9,326.02

Total amount of Klotz one-half interest in the partnership profits from its establishment to June 20, 1882.. .$29,987.60

These were actual profits realized, as will be shown by the report of the experts and the testimony of Mr. Chapotin, in which is given the amounts that Klotz withdrew from the cash of the firm, on his private account, thus :

Question. “ Well, take the report and say how much Mr. Klotz has drawn since he has been a member of the firm of Margaret Haughery &, Co.”

Answer. The different items ? ”

Q. “ Yes, each year.”

A. “ Well, lie has drawn — lie lias liad profits on the 3(Hh of June,. 1882. Mr. Klotz had to his credit, all told, $3097 42.”

Q. “What has been the drawing of Mr. Kllotz since he entered the partnership ? ”

A. “Let me see. The first statement I have will tell you.”

Q. “ He commenced with a capital of $10,000 9

A. “Yes, sir.”

Q. “ Donated by Margaret 9

A. “ Yes, sir.”

Q. “ Now, what has he drawn since that partnership, each year 9” A. “He began with a capital of $10,000. He has drawn the first year $4934 48 ; the second year he has drawn $11,903 39; * * * the third year $8072 89.”

Q. “ And the fourth year 9

A. “ The last year, it was only up to the 20th of June (1882).”

Q. “Well, up to the time the ¿«sf report was made what had been drawn 9

A. “ Six thousand seven hundred and seventy-nine dollars and eighty-eight cents.”

CL “ He had drawn for the year 1882, up to the 20th of February?”' A. “Six thousand seven hundred and seventy-nine dollars and eighty-eight cents.”

■ft •}. * ill « -fl V -fv

CL “ I am simply asking you what his draft has been.”

A. “ Well, you want me to take it from the trial balance,’ and it cannot be done.”

<L “ Well, will you look at the ledger and tell us?”

A. “Well, yes, sir.”

CL “ Well, look at the trial balance of June.”

A. “ At the end of June the trial balance shows Bernard Itlotz’s private account $11,997 32.”

C¿. “ That is up to the 30th of June ? ”

A. “Yes, sir.”

CL “ Of this year 9

A. Yes, sir.”

Up to and including the 30rh of June, 1882, Klotz is shown, by this indubitable evidence, to have withdrawn the total sum of $36,908 08, more than three and one-half times the amount of his original capital, within four years.

We have, then, this statement:

Klotz’s capital...............................$10,000 00

Klotz’s profits............................... 29,987 60 — $39,987 60 Cr.

Klotz’s drawings........................................ 36,908 08

Balance to liis credit.................................$ 3,079 52

This is upon the hypothesis that the stock had been kept up to the original standard of $20,000.

The significance, of these figures, when considered in relation to the plaintiff’s present contention, appears the more manifest from the fact that they were selected from transcript 8661, and were therein relied upon to establish his claim to a new term of liquidation, upon the theory that his administration, as such, had been profitable.

In taking this standpoint, in which to review this case, we do the plaintiff no injustice. If injustice has been done him — and we do not think there has — it proceeds from evidence he has furnished.

Let us see, in this connection, what Margaret’s drawings were, and the state of her account at her death :■

She drew during the first year.............................$ 6.674 54

She drew during the second year.......................... 4,456 23

She drew during the third year........................... 4,580 36

She drew February 9, 1882................................ 3,321 57

Margaret’s drawings are..............................$19,032 72

Her capital (original) and profits.......................... 39,987 60

She has to her credit.........:......................$20,954 88

An inspection of the report of the experts will show that Kioto is indebted to the balance on stock account of $5750 72 instead of $3079 52, as stated in this report. But that results from the fact that the experts did not take into their account his drawings, or profits of the year 1882, to June 20, as we have done.

On the other hand, Margaret is entitled to an additional allowance for the additions she made to her capital, from time to time, as shown by the report of the experts, viz:

From collections from sundry old accounts—

To June 30, 1880.........................................$4,332 43

To June 30, 1887......................................... 1,443 50

To part of last year (1882)................................ 240 00

Total..............................................$0,015 93 This would increase her share to $26,970 81.

The statement of the assets on hand at Margaret’s death, made by the experts shows the following facts, viz :

Stock on hand...........................................$14,000 00

Bills receivable......................................... 159 82

■Cash.................................................... 2,359 89

Sundry debtors.......................................... 16,270 10

Machinery............................................. 12,312 99

Lafrya stock........'.................................... 250 00

Total.............................................$45,352 80

As we have, in our preceding calculation of the respective interests, proceeded upon the basis of $20,000 of capital stock, that sum should be deducted from the total amount of assets; and this would leave a surplus remaining of $25,352 80. But the report of the experts shows that the firm liabilities were $19,622 62. They include the $10,000 mortgage note that the firm negotiated; sundry creditors, as per ledger; rent; wages, interest on note, etc.

Deducting this sum from the balance of the assets, and there remains $5,730 18. Adding' one-half of this balance to the share of Margaret, previously ascertained, and she will have $29,835 90, and .Klotz will have $5944 61.

This statement does not include the real estate, $16,436 21 ; nor the Reed oven No. 1, $900; nor the profits of the partnership, from the 20th of June to the 20th of August, 1882, the date at which the term of six months’ liquidation ended.

The difference between the present computation, made from the transcript and expert testimony and reports, and the amount awarded in our decree, is $1,505 75. If the items above mentioned, except the real estate, were taken into the account, there would be no difference whatever.

The district judge fixed the value of the partnership property at............................................. $58,857 28

Including real estate.................................... 16,436 21

Net value, less real estate............................... $42,421 07

He then deducted liabilities............................. 19,622 34

And found a balance of................................. $22,798 73

And gave half to each...................................$11,399 36

The learned judge of the lower court was certainly incorrect in making-an equal apportionment between the parties; and we think •our statement of the values is near the proper figure.

In support of the theory announced, wo have the uncontradicted statement of Mr. Macready, one of Margaret’s executors. He says, •on p. 390 of transcript No. 9607, viz: ‘.‘We (the executors) had the books thoroughly examined by an expert — in fact one or two experts— and we came to the conclusion that Margaret’s interest, at the end of the partnership, which would he six months after her death, ought to be worth in the neighborhood of $40,000,

“ Knowing there was a depreciation to some extent in the machinery, and had debts to a certain extent, we made an allowance of $10,000, one-half of which was to he borne by Mr. Klotz, and one-half by Margaret Haughery’s estate — -and her interest would represent $35,000.

“We authorized our lawyer to make an arrangement on that basis.’’

On May 24,1882, Klotz proposed to pay $32,000 for Margaret’s interest, including her half interest in the real estate, valued at $7000.

If we deduct the $7000, value of the real estate, from the $32,000, Klotz’s offer would he $25,000; and the judgment rendered is just .about a mesne between the two offers of settlement made by the respective parties.

The defendant’s counsel have entered, in this Court, a formal remittitur of the sum of $624 42, to which the plaintiff is entitled a credit. Our former opinion is correct.

Rehearing refused.


author: Poems, J. Fenner, J.

text:
    No. 9858.
    Alexander Moses vs. Louisville, New Orleans and Texas Railroad Company.
    It is the legal duty of railway companies, as carriers of passengers, to provide platforms and other accommodations for passengers who desire to take these trains at stations where passengers are usually taken on or put out; to furnish safe and proper means of ingress and egress to and from trains, platforms, station approaches, etc., and to furnish at night sufficient lights to securely guide the way and the steps of their passengers, as well as servants necessary to inform them and instruct them as to the location of the trains and as to the usual and safest mode of reaching them.
    This rule, which courts must rigidly enforce, is violated by a railroad company which, for any reason, leaves one or more coaches of a passenger train outside of the depot yard or station grounds at which the train stops to take on and put out passengers, and which thus obstructs at night the lights so placed by the city as to lighten both sides of the track on which the train stands.
    Hence, a railroad company is responsible for injuries received by a passenger seeking to board one of its trains at night, who finds no one to inform him how to reach the sleeping car attached to the train, which is left standing outside of* the yards, and to which a, sidewalk, erected by the company under a contract with the city, leads in a direct-route, which the passenger follows, and from which befalls by reason of defective or insufficient lights at that part ot the station approach.
    It is not contributory negligence in a passenger who goes outside of the station yaid to enter the coach which he desires, when that coach is left standing outside of such yard, and when a sidewalk, erected by t.he company and under its control, leads directly to said coach.
    Damages allowed by a jury will not be increasd on appeal, unless manifestly inadequate.
    APPEAL from the Civil District Court for the Parish of Orleans. Jjaianut, J.

      J). O. (C- lj. L. Labatt for Plaintiff and Appellee.

      Farrar é KritttscJinitt for Defendant, and Appellant.
   The opinion of the Court was delivered by

Poems, J.

Plaintiff claims damages in the sum of $20,000 for personal injuries received by Mm while boarding a train of the defendant company, at the city of Vicksburg, Miss., during the night of January 14, 1885; which he attributes to the negligence and want of care of tlie defendant and of its employees.

The defense is a general denial, a special denial of negligence on the part of the company, and a charge of contributory negligence on the part of plaintiff.

The jury found in favor of plaintiff, to whom they allowed $1000 damages. Defendant appeals, and plaintiff prays for an increase of the allowance for damages in the sum of $7000.

The undisputed facts of the ease are as follows:

Plaintiff, who is a resident of New Orleans, purchased, a ticket at the defendant’s office in Vicksburg, from that point, through to this city, to be used at the date above stated, on a train leaving Vicksburg at 9 o’clock at night.

Within twenty minutes of train time he reached the station or depot of the company, and remained with a companion who was to make the same trip, in a waiting-room within the building used as a passenger station, until the arrival of the train.

That building is situated at the northwestern corner of a square of ground owned and occupied by the company lor its purposes as a common carrier. The south-bound trains enter the depot yard at the intersection of two streets known as Levee and Depot streets; the iirst of which runs north and south, and the latter east and west. Down to that point the railroad track is on Levee street, and thence it diverges from that street, in a southeastern course, into the square of ground owned by the company. The depot yard, which is bounded on the west by Levee street, and on the north by Depot street, is enclosed by a fence, leaving at the junction of the two streets an opening tlirongfl which the trains enter into the yard. On Levee street the fence extends from the station-house, which fronts thereon, to the intersection of Depot street. The depot yard, which is on both sides of the track, is usually approached by passengers, either on Depot or Levee streets, through gates provided for the purpose; the Levee street gate being situated near the station-house. It was at that gate that plaintiff and his companion alighted from a carriage, and through it they walked into the depot yard and into the waiting-room or ticket office, which opens into the yard in the rear or east end of the building used as a station. The depot yard, on that side of the railroad track, is a wooden platform, several feet above the ground or level of tlie adjoining streets, and extending as far as the street proper on Levee street, the sidewalk being of the. same grade and of tlie same material; and marked out of, or separated fiom, tlie railroad yard proper by tlie fence above described — and ending on to the Depot street corner. Tlie construction of the sidewalk by the railroad company, as well as its dimensions and: grade, were stipulated in a contract between the city council of Vicksburg and the company.

Now, it happens, owing to the length of some of tlie trains, when going southward, that one, and sometimes two, of the passenger coaches are stopped and left standing outside of.tlie depot yard, across Depot street, and that on the night of tlie accident to plaintiff the sleeping car, which was tlie last coach of the train, was entirely outside of the yard. And it was in his attempt to reach that coach, with a view to secure accommodations for the night, that plaintiff met with the accident on which he predicates Iris claim.

As he stepped out of the waiting-room on the arrival of the train, lie saw that the sleeper was at the end of the train, and walking towards it he passed out of the gate herein above described near the station, to-the sidewalk and on the latter, at the end of which he fell to the ground and broke one of his legs.

From that period of the case, ail other facts hearing on tlie issues involved are hotly contested, and tlie truth must be sought out of a mass of conflicting testimony.

Our reading of the. record has satisfied us that tlie preponderance of the evidence shows :

That the principal cause of the accident must be attributed to the lack of sufficient light to guide the passengers in their efforts to hoard the train, and'that it was owing to the darkness which prevailed that plaintiff fell off the sidewalk.

The effect of a city gas-light, situated on Depot street, at tiie left side fence of the yard, was entirely lost to persons who were on the right hand side of the train, by the sleeper which stood in its way and entirely out of the depot yard; and the railroad lamps, in which oil was burned, and which were situated immediately around the station-house, were not strong enough to be of any use to persons walking to the rear of the train on the sidewalk.

But at this point and in this connection must be noted the charge of ■contributory negligence made against plaintiff by the defendant, who says that the usual and the safe inode of boarding its trains was to walk directly east from the waiting-room to the track, only a short distance, then to ascend tiie steps of the first coach in the way, and thence to walk through two or more coaches,.as the case might be, to the sleeper, in case the passenger desired sleeping accommodations; and that the existence of the fence above described was a sufficient indication of the extent of the depot grounds, and a sufficient caution to passengers not to venture outside if they wished to avail themselves -of the company’s protection. It is also urged that the city sidewalk from which plaintiff fell, was no part of the company’s platform, that the company had no control over the same, and was therefore not responsible for any accident which might occur thereon or therefrom.

The first answer to. that contention is found in the record, which shows that plaintiff who liad never before been at the place, and liad arrived there for .the first time on a dark night, with very dim lights ■to guide his steps, was not aware of the distribution of the road’s appliances and facilities, and that no employee or servant of the company offered to instruct or guide him in the proper course to pursue. Hence' he cannot be considered as negligent or legally imprudent in following tiie route which in his judgment was the safest and the shortest for the purpose of reaching the sleeper which was his objective point.

The second answer comes also from the record which shows that passengers approached and left tlio trains indifferently on either sido of them ; it appears that the driver of the hack brought plaintiff and his companion, without instructions from them, or either of them, to the sidewalk in question ; and that carriage drivers, watching for customers on the arrival of trains, stood on either side, of tiie depot yard/ the very hackman who helped to raise plaintiff after his accident was standing on that side with his carriage in expectation of customers.

From our understanding of the contract between the city and the company as to the construction of the sidewalk, we consider that the defendant is under the legal obligation to keep it in good order and repair as one of the approaches to its station. It is used by the company to receive all baggage, whether going to or coming from trains, and an inclined platform connects it with the street below, at the gate through which plaintiff went in and out of the depot-yard on the night of the accident. It is clear to our minds that the defendant would be responsible for any injury occasioned on that sidewalk by reason of a rotten plank, to any of its passengers, either going to or leaving one of its trains. It is indeed used by it as one of its appurtenances.

But in law and injustice, why should this company be heard to charge negligence, imprudence or recklessness to any of its passengers for going out of its inclosures to reach the coach which he desires, when that coach itself is out of the company’s yard, and actually intercepts the street which crosses at that point? From the description which we have already given of the grounds, it is undeniable that if a coach of the company liad not stood in Depot street, the city gaslight, the best and the only gaslight on and around the grounds, would have been amply sufficient to lighten the sidewalk, separated from it only by the train, and it is as clear that if the sleeper had stood within the depot yard, plaintiff would have gone directly to it, without going outside of the yard; and in either case the accident would not have occurred. Hence, the conclusion is inevitable that the accident is solely attributable to the fact that the sleeping car was not pulled inside of the yard; and that in consequence of its standing in the way of the city gaslight, it deprived the depot and its approaches of the light necessary to securely guide the passengers who desired to take the train, and to occupy that identical coach. It is not proper management in a railroad company to require passengers to go through a series of coaches, and to pass over several platforms, in order to reach the particular coach which they may desire to occupy, because that coach is left outside of the depot yard, which contains the balance of the train to which it is attached. Turner vs. Railroad Company, 37 Ann. 648.

The management of the company, on the night of the accident, including the distribution of its lights around the station, the location of its train, with the most important coach left standing outside of the depot yard, thus blocking up an important thoroughfare and shutting out the best light around the premises; its omission to provide sufficient lights on the right hand side of the train, particularly at the end of the sidewalk pavement, hereinabove described; its omission to instruct, by servants or other employees, its passengers as to the safest course to pursue in order to reach the sleeping car of the train, are so many distinct and reprehensible violations of the rule recognized as indispensable to the safety of travelers, and so uniformly enforced in jurisprudence, and which requires railway companies “ to furnish safe and proper means of ingress and egress to and from trains, platforms, station appioaches,” etc., and “ to furnish at night ample and sufficient lights to safely guide their passengers to and fiom such trains, platforms, station approaches,” etc., and which, under those circumstances, exacts the obligation of procuring the employees and other servants necessary to inform passengers of the correct location of their trains, and to instruct them as to the safest mode of reaching the same. Peniston vs. Railroad Company, 34-Ann. 777, and authorities therein cited.

The courts of last, resort in most of our sister States have, with remarkable uniformity, rigorously enforced the rule, particularly in its intended and humane protection of persons whose business or other wants require their presence around railroad stations at night. While it is true that the rule is intended to afford protection to the public in general, it stands to reason, and it is consonant with justice, that it should apply with exceptional fitness to passengeis on the trains of the company, or at its stations, with the object of boarding one of its trains. A lucid writer on railroad jurisprudence has formulated the rule as follows: “It is also the duty of railway companies, as carriers of passengers, to provide platforms and other reasonable accommodations for such passengers at the stations upon such roads at which they are in the habit of taking on and putting out passengers. Their public profession as such carriers is an invitation to the public to enter and to alight from their cars at their stations, and it has been held that-they must not only provide safe platforms and approaches thereto, but they are bound to make safe, for all persons who may come to such stations, in order to become their passengers, or who may be put off there by them, all portions of their station grounds reasonably near to such platforms; and for not having provided such stational accommodations and safeguards, railway companies have frequently been held liable for injuries to such persons.” Hutchinson on Carriers, pp. 417, 418.

Another writer on the same subject lias very succinctly traced a lino to bo followed by railway carriers, as follows: “It is the duty of the corporation to have its stations open and lighted, and its servants ‘present for tlie accommodation of those who may wish to leave its trains or to depart by the same.” Thompson's Carriers of Passengers, p. 108.

Numerous decisions of courts of last resort have contributed tlie material for the rules thus formulated: and it may not be amiss to referto a few of such adjudications.

A passenger, waiting- for a train, found the station so uncomfortable by reason of tobacco smoke that she undertook to enter the cars before they were drawn up to tlie platform from which passengers generally entered them, and by reason of which she was injure,d, recovered damages for such injuries. McDonald vs. Railroad, 26 Iowa, 124.

In another case, damages were allowed to a person who intended to board a train, and who was injured while running along the line of the road to reach the train in time, on account of darkness. Martin vs. Railway, 16 Com. B., 179.

It has also been held that: When, by reason of the insufficiency of the station, or length of the train, or negligence in the operation of it, passenger cars are brought to a stand at places where there is no landing or other conveniences for getting off the train, if it is reasonable to suppose that no better opportunity will be granted for this purpose, the passenger may alight, although the position is inconvenient or slightly dangerous. If tho company’s servants have given, the passenger an express invitation to alight, or their conduct is such as to imply an invitation, the passenger will he justified in making the. attempt.” Thompson’s Carriers of Passengers, p. 268, § 4 and authorities cited by him.

The following rule also rests on undisputed judicial sanction:

“Wherever a railroad company is in the habit of receiving passengers, whether at a station or some point outside, or if by the regular operations of trains it is necessary to traverse portions of the premises outside of the station-house, passengers have a right to assume that such parts of tho premises are m a safe condition for such purpose, even on a dark night.” Thompson’s Carriers of Passengers, p. 269— and decisions therein quoted.

In the case of Railroad Company vs. Thompson, Southern Reporter, Vol. 1, p. 840, the Supreme Court of Mississippi, in sustaining a verdict of $15,000 damages against this very company, for injuries sustained in one of their station yards by a person who had gone there on business, and was hurt while passing through a gap in a freight train usually open for people to pass through, used the following vigorous language: “Appellant is answerable for damages iu the cause unless a railroad company, in tlie prosecution of its business, may set a trap for people, and after a man has been caught in it and killed or injured, escape liability by assuming the posilion that he ought to have had more sense than to have been deceived or misled by the contrivance.”

In the instant case, the record shows that during the winter months' one or more of the night train coaches were not pulled in the depot yard, but were left standing across the intersecting street, that trains were entered indifferently on the right and left hand sides thereof, that the sidewalk wooden pavement which was flush with the station platform had been constructed by the defendant company as part of the considerations for the franchises obtained by it from the city, and no evidence shows that the control of the same has ever been resumed by the city. Quimby vs. Boston and Maine R. R. Co., 69 Maine, 340.

It also appears that the sidewalk in question is one of the important immediate approaches to the company’s station, it being used as the only place for the handling of the railroad baggage; that it afforded .the most direct route for plaintiff to reach the sleeping car, and that no servant of the company informed him otherwise, whereas a large gate wide opened gave him free access to it. All these circumstances must be construed as an invitation and an inducement held out to him by the company to use the sidewalk as he did. He is, therefore, fully justifiable in law for having followed the course which was thus so naturally suggested to Mm by the acts of omission and commission of the company.

Hence, lie is not amenable to the charge of contributory negligence. And the facts herein recited lead, on the other hand, to the clear conclusion that the company must be held responsible for the accident. But we do not feel warranted to favor plaintiff’s prayer for an increase of damages. The verdict of a jury fixing the quantum of damages must not be disturbed on appeal unless it be manifestly erroneous and palpably inadequate. The evidence on this point in the record does not justify such a conclusion. Hence the verdict must remain unchanged.

Judgment affirmed.

Dissenting Opinion.

Fenner, J.

With due respect to the able and vigorous opinion adopted by the majority of the Court, I am unable to assent to its conclusions.

At its station in Vicksburg, Miss., the defendant railway company had provided depot grounds, with appropriate buildings, for the reception and accommodation of passengers, which were lighted and wholly enclosed by a substantial fence to designate the boundaries of the company’s premises, Through this inclosure, by an opening in the fence just wide enough to admit the train, defendant’s tracks ran.

One side of defendant’s enclosure was bounded by Levee street, a public street of the city of Vicksburg, running towards and extending to tbe railroad, and outside of the enclosure and running along the fence was the sidewalk or banquette of the street, which was an elevated wooden structure, bnj.lt by defendant under direction and instructions of the city authorities, and forming tbe public highway for foot passengers. This sidewalk intersected and crossed the railroad outside of defendant’s grounds.

Arriving to take the train, plaintiff entered defendant’s enclosure through a gate in the fence on Depot street, at a point near the corner and farthest away from the track, and went into the passenger waiting room, where he awaited the arrival of the train.

What was the plain significance of this inclosure and of this waiting-room within it, fronting the railroad brack 7 What was the object of them, and why did plaintiff enter them 7 Obviously for the purpose of awaiting and boarding the train. Would anyone have supposed, under such circumstances, that he was expected, in order to board the train, to go back to tbe gate by which he had entered, and then approach the train by tbe public street 7 I think not.

The train arrives. The engine and several passenger coaches enter the enclosure, and halt in front of the waiting-room ; but the sleeper and part of the coach immediately in front of it are left outside the fence.

What was the course plainly indicated to the waiting passengers 7 Clearly, to go forward to the train and there to enter one of the coaches and pass back to the sleeper, or else to have sought information as to how to reach the sleeper. Such was the plain invitation and inducement held out by the company. If, on reaching tbe train and passing along it toward the sleeper, he had encountered an open gate at the track and had passed through it, and been hurt, he might claim that such an open gate at such a point, with the sleeper beyond it, was an inducement or invitation held out by tbe company to pass through it. But plaintiff went away from the train to a gate more remote from the track than the waiting-room, entered the public street, and chose to pass to the train by that route, outside of the company’s grounds. In so doing, I consider he acted on his own responsibility, in opposition to tlie plain course dictated by the surrounding circumstances, and passed out of the company’s protection, which was no more responsible for his safety than for that of any other passer on that public sidewalk. '

The complaint made of absence of employees to give directions has no force. No directions were necessary to prompt a passenger, in a waiting-room thus enclosed, to pass to the train which has halted in front of him and within the enclosure, for the purpose of boarding it.

The gate to which plaintiff went wa.s the passage way for arriving as well as departing passengers, and for all persons going in or out of t enclosure on that side ; and had any employee been there he would naturally have taken plaintiff to be an arriving passenger, or other person going away from the depot.

If it were negligence in defendant to halt its train in such manner as to leave its sleeper outside the enclosure, and thus to require its passengers to enter another car and pass through it to reach the sleeper, that might render it liable for accidents happening in such passage; but it has no causal connection with an accident resulting from the unusual course pursued by plaintiff in this case, which was in evident opposition to that contemplated by defendant and indicated by all the surrounding circumstances.

I consider the law well settled that when a party disregards the sufficient provisions made by the railway company for ingress and egress to and from its trains, and chooses to adopt a different method, he does so at his own risk. As was said in a leading case: “ We hold, on these principles, that the company’s liability could not be fixed for the injury consequent on the choice of a passenger, in disregard of the provisions made by it for his safety and convenience. It was not negligence on the part of the company that it did not, by force of barriers, prevent the parties from leaving on the wrong side. People are not to be treated like cattle; they are presumed to act reasonably in all given contingencies, and the company had no reason to expect anything else in this case.” Penn. R. R. Co. vs. Zebe, 33 Pa. St. 318; id. 37; id. 420.

These principles are fully applicable here, where the company had actually provided barriers within which plaiotiff had been received for the purpose of entering the train, from within which he could have-entered it, and was manifestly expected and intended to enter it. Plaintiff’s act in going out of those barriers and seeking to get to the train by the public street, was a voluntary disregard of the provisions made by the company, and the consequent injury should not be attributed to the company.


author: Todd, J.

text:
    No. 9527.
    Baltimore and Ohio Telegraph Company vs. Louisiana Western Railroad Company.
    A suit for the expropriation of property cannot be tried in vacation, but only at a term of ttie court.
    A PPEAL from the Fourteenth District Court, Parish of Calcasieu. .LA Beed, J.

      J. B. Beokivith and G. B. Wells for Plaintiff and Appellee.

      heavy & heovy and J. P. Blair, Bayne <& Denigre, D. Caffrey, G. Clark and A. J. Kearny for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

From a judgment rendered in an expropriation proceeding, instituted before the judge of the Fourteenth Judicial District, Parish of Calcasieu, the defendant company lias appealed.

Among the exceptions filed in the lower court was one to the effect that the judge could not proceed to try the case in vacation, but that it could only be legally tried in term time.

This exception was overruled.

It seems to us that this ruling was a manifest error. The State courts were established by the Constitution, They were established for the judicial determination of all suits and controversies.

The full and complete organization of the courts and the terms thereof are provided and fixed by law. These terms are thus fixed for the trial of all cases and suits instituted before the court. They cannot under the elementary and positive provisions of the law be tried at any other than the regular term of the court, except in special instances expressly declared.

The ease in hand forms no express exception to this general and inflexible rule, and it is so admitted by the opposing counsel, and it is further admitted that no adjudication of any court can be found that would warrant in the slightest degree such an exceptional proceeding. The counsel, however, addresses a strong and forcible argument to the court of the wisdom and apparent necessity of such a proceeding, by reasons of public policy and the paramount importance of a speedy determination of questions involving the exercise of the rights of eminent domain. This argument would doubtless prove irresistible if addressed to the legislative department of the government, but it is a matter in which the courts can afford no relief. They must be controlled by the law as they find it.

It is, therefore, ordered, adjudged aud decreed that the judgment appealed from be annulled, avoided and reversed, and tbe case remanded to be proceeded with according to law.