Laughlin, J., delivered the opinion of the court: The appellants assigned three grounds of error in the court below for reversal, but only one of which will be considered, as that is sufficient for a full determination of the case on its merits. That assignment is in the following words, to wit: "Third, the court erred in refusing to grant to the respective petitioners the exemptions prayed." The provisions of the statute under which appellants seek to establish their right to the exemptions claimed in their petitions in this case are as follows, to wit: v. Frey, 7 Neb. 134, 29 Am. Rep. 380; Lininger | much force and seriousness, which is, Can each "Sec. 1. Every person who has a family, and every widow, may hold the following property exempt from execution, attachment, or sale for any debt, damage, fine, or amercement, to wit: "Sec. 19. Any resident of this territory, who is the head of a family, and not the owner of a homestead, may hold exempt from levy and sale real and personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding $500 in value, in addition to the amount of chattel property otherwise by law exempted." "Sec. 10. This act shall be so construed as to apply to all species of indebtedness, against exempted property, except taxes. Laws 1887, p. 72. The act of the legislature under which this assignment was made and authorized provides as follows, to wit: "Sec. 35. All property, both real and personal, exempt from execution under the laws of this territory shall not be conveyed by deed of assignment, and if enumerated therein shall not pass to the assignee, but shall be reserved for the benefit of the assignor, or his family, to be set off and appraised by the appraiser mentioned in the first part of this act.' Laws 1889, p. 158. The 1896. Re SPITZ BROTHERS' ASSIGNMENT. vidual, knows that a certain portion of his partnership debts."" Fourth Nat. Bank v. New debtor's property is not, and will not be, sub- Orleans & C. R. Co. 78 U. S. 11 Wall. 624, 20 L. ed. And so, if he sells to a 82. "It is a rule, too well settled to be now called ject to his demands. firm, and the firm or each member thereof is in question, that the interest of each partner entitled to a statutory exemption, the creditor in the partnership property is his share in the sells in view of the hazard." In the case of surplus, after the partnership debts are paid; Blanchard v. Paschal, 68 Ga. 32, 45 Am. Rep. and that surplus only, is liable for the separate 474, which is similar in all respects to the case debts of such partner." United States v. Hack, at bar, the court says: "The theory of the 33 U. S. 8 Pet. 271, 8 L. ed. 941; Murrill v. plaintiff in error is that the partnership prop- Neill, 49 U. S. 8 How. 414, 12 L. ed. 1135. erty must go to the payment of the partner. There seems to be no doubt at this time but ship debts, before any individual interest can that the partnership assets of an insolvent firm exist, whereas, in fact and in law, the individ- constitute a trust fund for the benefit of the ual members of the firm are the real owners of creditors of the partnership. And the only the partnership property. And although the way in which individual partners of the insollaw directs how debts shall be paid, it never vent firm could avail themselves of an exemploses sight of the fact that a partnership is tion out of the partnership assets, before the made up of individuals who own the assets." partnership debts are paid, would be by a diIt will be seen on a careful examination of all rect statutory remedy, and we have no such the authorities in support of this proposition statute here. It is true that in the case of that the courts so holding have apparently ig- Stewart v. Brown, 37 N. Y. 350, 93 Am. Dec. nored a well-settled principle of law; that is, 578, the court held that, where the word "perthat the assets of an insolvent firm is a trust fund son" was in the statute, it meant "persons" in for the benefit of the creditors of the firm. the plural, and that construction was given This position is supported, by Federal as well because of a general statute in that state. as state authorities, in a long line of well-rea- And, while we have a statute to the same efsoned cases, as well as by a number of text- fect (Comp. Laws 1884, § 2614), such a conwriters. "The joint property is deemed a struction as placed upon the statute by the trust fund, primarily to be applied to the dis- court in the case above cited is, in our opinion, charge of the partnership debts against all per- unwarranted, in the face of the authorities sons not having a higher equity. A long series above cited. Bates, in his work on the Law of authorities (as has been truly said) has es- of Partnerships (§ 1131), says: "On execution tablished this equity of the joint creditors, to against the partnership property on judgment be worked out through the medium of the for a partnership debt, no exemption or homepartners; that is to say, the partners have a stead is allowed either to the partnership as a right, inter sese, to have the partnership prop-body or to the individual members thereof, out The partnership as a body erty first applied to the discharge of the part of the joint assets. nership debts, and no partner has any right ex- cannot claim it because the homestead and except to his own share of the residue; and the emption statutes apply to several and not to joint creditors are, in case of insolvency, substi- joint claims, and the partnership is neither an tuted in equity to the rights of the partners, as entirety, an individual, nor the head of a fambeing the ultimate cestuis que trustent of the ily. An individual partner cannot claim it, beStory, cause no partner has a proprietorship in any fund to the extent of the joint debts.' Eq. Jur. 5th ed. § 1253; 5 Kent, Com. 36. specific chattel, his interest being a share in the "Whenever, a partnership becoming insolvent, surplus after payments of debts and copartners' a court of equity takes possession of its prop-claims."—but that "the contrary rule prevails erty, it recognizes the fact that in equity the in Georgia, Michigan, New York, North Carpartnership creditors have a right to payment olina, Texas, and Wisconsin." In the case of out of those funds in preference to individual Re Handlin, 3 Dill. 290, Circuit Judge Dillon creditors, as well as superior to any claims of says: "There is no exemption to the firm, as And the partnership such; nor is it contended that there can be. the partners themselves. property is, therefore, sometimes said, not in- But each of the partners claims an individual aptly, to be held in trust for the partnership exemption to the amount of $2,000 out of the creditors." Hollins v. Brierfield Coal & I. Co. firm property, and at the expense of the firm 150 U. S. 385, 37 L. ed. 1117. "It has repeat- creditors; and if the claim is valid, it would While the adjudged edly been determined, both in the British and be equally so if there were six partners, inAmerican courts, that the property or effects stead of two. of a partnership belong to the firm and not to cases relating to the question under considthe partners, each of whom is entitled only to eration are not uniform, a careful examination a share of what may remain after payment of of all of them justifies me in saying that they the partnership debts and after a settlement of are quite decisively against the proposition the accounts between the partners; conse- that individual exemptions can be allowed out quently that no greater interest can be derived of the partnership estate, at the expense of the from a voluntary sale of his interest by one joint creditors." The supreme court of Kanpartner, or by a sale of it under execution. In sas, in a very able opinion, in the case of Taylor v. Fields, 4 Ves. Jr. 396, it was said, Guptil v. McFee, 9 Kan. 30, says: "But if we that a party coming into the right of a part-adopt the theory, which is the true one, that the 'comes into nothing more than an interest in the partnership, which cannot be tangible, cannot be made available, or be delivered but under an account between the partnership and the partner, and it is an item in the account that enough must be left for the ner, exemption is in favor of individuals only, and as 1869, held that, "property belonging to the firm cannot be said to belong to either partner as his separate property. He has no exclusive interest in it. It belongs as much to his partner as it does to him, and cannot in whole or in part be appropriated (so long as it remains undivided) to the benefit of his family. It may be wholly contingent and uncertain whether any of it will belong to him on the winding up of the business and the settlement of his account with the firm." There is almost a limitless number of adjudicated cases supporting this doctrine, both Federal and state, and it is only necessary to cite a few in addition to those already referred to: McCrimmon v. Linton, 4 Colo. App. 420; Aiken v. Steiner, 98 Ala. 355; Richardson v. Adler, 46 Ark. 43; Kingsley v. Kingsley, 39 Cal. 665; State, Peck, v. Bowden, 18 Fla. 17; Ex parte Hopkins, 104 Ind. 157; Hoyt v. Hoyt, 69 Iowa, 174; Terry v. Berry, 13 Nev. 514; Short v. McGruder, 22 Fed. Rep. 46; Harley v. Hampton, 160 Pa. 18. A long list of Federal decisions are cited by counsel for appellee receiver from the bankrupt register in support of these authorities. If the contention made by the appellants is sound,―that each of the partners of an insolvent copartnership is, under the statute, entitled to claim and have an exemption of $500 out of the partnership assets at the expense of the partnership creditors, as the equivalent of his homestead, when he is not the owner of one,then it is sound as to any number and all the copartners under like circumstances; and if one member of the copartnership furnishes all the capital, and the others conduct the business as profit partners only, and contract partnership obligations, and become insolvent, then each of the profit partners would be entitled to an exemption out of the assets at the expense, first, of the partnership creditors, and, secondly, at the expense of the partners who furnished all of the capital for the enterprise or business, if he should happen to have private property out of which the partnership debts could be collected; thus affording the profit partners an opportunity to secure and hold the exemptions out of the property in which they never had any interest, and out of a business in which they never invested a dollar of their own money. Such a proposition is neither sound in morals nor in law. There is no principle of the law better settled than that partnership assets must first be applied to the payment of partnership debts. And to attempt to establish any other rule would be to encourage the thriftless and unscrupulous at the expense of -34 L. R. A. the fruits of honest labor, and would be contrary to business principles, and tend to destroy commercial confidence. Suppose one partner had put into the business three fourths, and the other one fourth; it would be clearly unjust and inequitable to hold that he who had put into the business only one fourth of the capital should be permitted to withdraw from the firm assets an equal moiety with him who had invested three fourths of the capital; and, if the principle contended for is sound with respect to any partnership, it is sound with all partnerships. It is contended by appellants' counsel, with considerable force, that statutes allowing exemptions should be and are construed with great liberality in favor of the "poor debtors." That, no doubt, is true, and it is the proper construction; but this is not the class of cases requiring a liberal or sympathetic construction, because common experience of every-day life teaches that in perhaps a majority of the cases of insolvency the members of the insolvent firm, while doing a thriving business on the capital of their creditors, live in opulence, contract obligations with that other class of people known as "poor creditors," who are unable to lose the results of their honest toil for the benefit of those who have lived in luxury while holding themselves out to the world as amply and financially responsible for all their obligations, and then make a deed of assignment, and, as if by the hand of the magician, they are converted into "poor debtors," and raise the alarm that they are being pursued and oppressed by their creditors. Our statute is fairly liberal in providing exemptions to the poor and needy. It exempts a homestead to the heads of families, to the amount of $1,000, and the proceeds of the homestead when sold to that extent for one year, and other personal property amounting to several hundred dollars, and the personal earnings of the debtor, or his minor child or children, for three months, and it is this class of debtors upon whom the law always sheds its mantle of charity in its protecting care of the weak against the strong, and in whose favor the law is, and should always be, construed liberally. There was no error in the court below in refusing to grant the prayer for exemptions as prayed for by the appellants, and for the foregoing reasons the judgment of the Lower Court is affirmed. And it is so ordered. Smith, Ch. J., and Bantz and Hamilton, JJ., concur. LOUISIANA SUPREME COURT. Messrs. James Wilkinson, R. H. Lea, and Farrar, Jonas, & Kruttschnitt, for appellant: Article 2322 of the Civil Code provides that "the owner of a building is answerable for the caused by neglect to repair it, or when it is the damage occasioned by its ruin, when this is result of a vice in its original construction." This article applies, and was intended to apPly, only to passengers on the public highways and to neighbors, and it was not intended to apply to persons voluntarily entering private premises, and there suffering an injury. This is the necessary result of a comparison of article 2322 with article 670 of the Civil Code. Camp v. Church of St. Louis, 7 La. Ann. 325. At common law, both the authorities and the text-writers are in our favor. Edwards v. New York & H. R. Co. 98 N. Y. 245, 50 Am. Rep. 659; Shearm. & Redf. Neg. 4th ed. § 711, p. 593; Buswell, Personal In APPEAL by defendant from a judgment of juries, p. 124; Whittaker's Smith, Neg. pp. 83, 84. The French authorities sustain the same view. the Civil District Court for the Parish of Orleans in favor of plaintiff in an action brought to recover damages for personal in juries to plaintiff's daughter which were alleged to have been caused by defendant's neg-on C. N. art. 1386, No. 16, and authorities ligence. Reversed. The facts are stated in the opinion. *Headnotes by WATKINS, J. Fuzier Herman, Code Annoté, Commentary there cited, including particularly: Demolombe, Vol. 31, No. 659; Aubry & Rau, vol. 4, p. 772, $ 448, note 14; Larombière, Commentary on article 1385, No. 3; Laurent, Vol. 20, No. 644. NOTE.-Liability of landlord for injuries to tenant's | sageway, the court says the rightful subtenant, guests and servants from defects in premises. servant, employee, or even customer of the lessee MCCONNELL V. LEMLEY and STENBERG v. WILL- is in the same condition as to right to recover for Cox, although somewhat distinguishable on their injuries that the tenant is, because he enters under facts, are not decided squarely upon this distinc- the same title and hence assumes the same risks. tion. And they contain expressions which indicate In Martin v. Richards, 155 Mass. 381, in which the that the courts by which they were decided enter-action was by the tenant, his wife, and the admintain somewhat different views of the law which istrator of his deceased child, the court says it is should govern them. In MCCONNELL V. LEMLEY agreed that the same disposition is to be made of the court says: "The guests of the tenant have no the three cases, and therefore the court treats the claim against the landlord for damages they have cases as an action by the tenant alone. sustained while on the premises." In STENBERG V. WILLCOX the court makes the express or implied knowledge of the guest as to the defect a material element in the consideration of the landlord's liability. It appears to be the first case in which that element has appeared. The person whom the tenant invites upon the premises is universally regarded as so far identified with the tenant that his right of recovery against the landlord is the same that the tenant's right would be had the accident happened to him. The guest is regarded not as a stranger with independent rights. Consequently the question whether or not the guest knew or might have known of the defect has been treated as immaterial. Duty the same towards tenant and tenant's guest or servant. In Bowe v. Hunking, 135 Mass. 380, 44 Am. Rep. 471, which was an action by the wife of the tenant for injuries caused by a defect in the premises, the court says persons who occupy by permission of the tenant or as members of his family cannot be considered as occupying by invitation of the landlord, so as to create a greater liability on the part of the landlord to them than to the tenant. In Cole v. McKey, 66 Wis. 500, 57 Am. Rep. 293, which was the case of an injury in a common pas In Minor v. Sharon, 112 Mass. 477, 27 Am. Rep. 122, minor children of the tenant sued for injuries caused by their contracting small pox, with which the tenement was infected to the knowledge of the landlord, but which fact he did not communicate to the tenant. The action by the children was tried with the action by the father for a similar cause, and the court places the liability on the same ground, and approves a finding in favor of plaintiffs. In Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548, although the injury was to the wife of the tenant, the husband was joined as plaintiff in the action, and the court treats the case as one of landlord and tenant. Landlord not generally liable. Invited guests of a tenant must seek their remedy against him, and not against the landlord, for injuries caused by defective repair of the leased premises. Marshall v. Heard, 59 Tex. 266. If a guest enters and while upon the premises is injured without his own fault by some defect in the premises he must seek his damages from him whose invitation impliedly assured him he could enter safely, and who alone is responsible for the defect which caused the injury. In such a case the guest can have no greater claim against the lessor Even as to passengers and neighbors, the Messrs. Frank E. Rainold and A. G. owner of a building is answerable for the dam-Brice for appellee. ages occasioned by its ruin only where it is caused by his neglect to repair it, or when it is the result of a vice in its original construction. Burton v. Davis, 15 La. Ann. 448; Civ. Code, art. 2322. Even a subtenant cannot acquire greater rights than the tenant. Talley v. Alexander, 10 La. Ann. 627; ton v. Ormsby, 1 Mart. N. S. 375. Any person entering upon the premises enters either under the contract of lease, or as a trespasser. Upon the first bypothesis, the rights of such person cannot be greater than those of the tenant. Upon the second, there is no privity of contract between the person entering and the owner of the property, and if the person entering be injured, he, or she, must look to the person with whom he or she had an implied contract as to his or her safety as a guest. Watkins, J., delivered the opinion of the court: Plaintiff seeks to recover $10,000 damages of the defendant, as owner of the house at the corner of Julia and St. Charles streets, in the city of New Orleans, it being at the time ocNor-cupied as a residence by one W. H. Burgess as his tenant, under the following circumstances, as related in his petition, viz.: "On the 16th November, 1894, Burgess entertained a party of friends at his home. They had come as a 'surprise party,' and were welcomed by Burgess as guests. Among them was the daughter of plaintiff, and she was made welcome by the host and his wife. A little after 1 o'clock, Miss Virgie McConnell was standing on the veranda or gallery that surrounded the dwelling, and on which a number of doors opened. She had stepped upon the gallery for the purpose of enjoying the fresh air, as the evening was a warm one, while the other young ladies were putting on their hats, preparatory to leaving. While she was standing on this gallery, which was a structure extending along both the Julia and St. Charles street sides of the house, being about 12 feet wide, with a railing encircling it, the fire bells rang. and about a dozen of the guests came out to watch the fire engine pass. The engine house was nearly opposite, and they viewed the preparations of the firemen, and departure of the engine out Julia street, towards the woods. The engine had scarcely crossed St. O'Connor v. Illinois C. R. Co. 44 La. Ann. 339. The tenant cannot recover damages by reason of the failure of the landlord to make repairs, when the rent is sufficient to enable the lessee to make them, because in such a case the lessee is authorized to make them himself and to deduct the cost from the rent. Lewis v. Pepin, 33 La. Ann. 1417; Caldwell v. Snow, 8 La. Ann. 392; Pesant v. Heartt, 22 La. Ann. 292; Diggs v. Maury, 23 La. Ann. 59; Larguier v. White, 29 La. Ann. 156; Laurence v. Lelievre, Manning's Unreported Cases, p. 11. than the lessee himself and the members of his family have. McKenzie v. Cheetham, 83 Me. 543. In Jaffe v. Harteau, 56 N. Y. 398, 15 Am. Rep. 438, where the plaintiff, wife of a sublessee of the property, was injured by an explosion of a water boiler on the property, the court held the landlord not liable, the evidence showing that there was no reason to believe that the owner knew of the unsafe condition of the boiler. The court says the owner of a building is not, in the absence of fraud or any agreement to that effect, liable to the tenant or others lawfully on the premises by his authority for their condition, or bound to see that they may be safely and conveniently used for the purposes for which they are apparently intended. Although the landlord puts fixtures in a store in an unsafe manner, and neglects to remedy the defect when notified of it by the tenant, he will not be liable for injuries to the tenant's customer caused by the defect, since the remedy of the customer is solely against the one who invited him into the dangerous place. Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767. | is not liable to his tenant's customers or guests for accidents happening in consequence during the term. Robbins v. Jones, 15 C. B. N. S. 221, 33 L. J. C. P. N. S. 1, 10 Jur. N. S. 239, 9 L. T. N. S. 523, 12 Week. Rep. 248. In Burchell v. Hickisson, 50 L. J. Q. B. N. S. 101. plaintiff, a child four years old, went with his sister to a house which had been let without any agreement as to repair, and fell through a broken rail at the top of a flight of steps and was injured. The court does not discuss the question of liability as between defendant and the tenant, but places its ruling for defendant upon the ground that defendant never invited such a person as plaintiff to come to the premises without an attendant, and if he had an attendant there was no concealed danger, which alone would render defendant liable. In Ten Broeck v. Wells, F. & Co. 47 Fed. Rep. 690, where the plaintiff, a guest at a hotel, received an injury by falling from the front steps because of the absence of a railing, and sued the owner of the hotel, who had leased it to a third person, the court held that the defect being patent the risk was assumed by the guest, and she could not recover for injuries caused by it. The owner of property leased for business purposes is not, in the absence of covenant in the lease, bound to repair the premises, and therefore is not liable to the employee of the tenant for in- The owner of a building leased to a tenant who juries caused by defects in a stairway used in con-occupies it is not liable for injuries to a person who nection with the premises. Willson v. Treadwell, 81 Cal. 58. Where the daughter of a lessee who had covenanted to keep the premises in repair was injured by the falling of a veranda, the court held that she could not be considered a stranger, and had no right of action against the lessor for the injury so received. Mehr v. McNab, 24 Ont. Rep. 653. Defect in premises when let. is injured by falling down an embankment while walking from the street to the house for the purpose of transacting business with the tenant, although the premises were in that condition when they were leased. Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695. The landlord is not liable to any person entering under the title of the tenant or upon the premises by his invitation, where there is no agreement to repair and he has not been guilty of any fraud or A landlord who lets a house in a dangerous state | concealment as to the safe condition of the prem |