« ForrigeFortsett »
much as may, under the laws of the territory | 219 and note; Blanchard v. Paschal, 68 Ga. of New Mexico, be exempt to each of the 32, 45 Am. Rep. 474; Spade v. Bruner, 72 Pa. above graptors.' Thereafter, on the 23d day 57; Servanti v. Lusk, 43 Cal. 238; O'Gorham of January, 1895, the said Edward Spitz and v. Fink, 57 Wis. 649, 46 Am. Rep. 58; RusBerthold Spitz filed their separate petitions in sell v. Lennon, 39 Wis. 570, 20 Am. Rep. 60. the district court for Bernalillo county in The members of a partnership are the ownwhich petitions they each stated under oath ers of its assets, and may, with the consent of that each was a resident of the territory, the each other, apply the partnership assets to tbe head of a family, and was not the owner of payment of individual debts as against parta homestead, and that there was a clause in nership creditors. the said deed of assignment expressly re- Huiskamp v. Moline Wagon Co. 121 U. S. serving from the said conveyances so much 310, 30 L. ed. 971. property conveyed as was, under the laws of It was not incumbent upon the assignors to this territory, exempted to each of said peti-l make any selection of exempt property, or to tioners; and prayed for an order on the said claim the exemption at any particular time. assignee requiring him to set apart from the Chipman v. Kellogg, 60 Mich. 438; Brooks v. proceeds of said estate, and to pay over to Nichols, 17 Mich. 38. each of said petitioners, the sum of $500, as Messrs. R. W. D. Bryan and A. B. Mcthe equivalent of the amount of exemptions Millen, for appellee: allowed in such cases, to residents and heads The exemption is of property to be selected. of families who do not own a homestead. The Until selected it was subject to levy and sale. district court granted the prayer, and issued a Carpenter v. Warner, 38 Ohio St. 416. rule on the assignee to pay over the amounts The joint property is deemed a trust fund claimed in the petitions, or show cause at a primarily to be applied to the discharge of the fixed date, if any reason he had, why not partnership debts against all persons pot hav. The assignee answered the rule, and showed ing a higher equity. that neither said Edward nor Berthold Spitz, Story, Eq. Jur. $ 1253; Hollins v. Brierfield por their agent nor attorney, ever selected any Coal & I. Co. 150 U. S. 385, 37 L. ed. 1117; property, real or personal, from assets of said Fourth Nat. Bunk v. New Orleans & C. R. Co. 78 estate in his hands as assignee, nor claimed any U. S. 11 Wall. 624, 20 L. ed. 82; United States of said property as an exemption, and that v. Hack, 33 U. S. 8 Pet. 271, 8 L. ed. 941; the appraised value of the assets of said estate Murrill v. Neill, 49 U. S. 8 How. 414, 12 L. ed. of said Spitz Bros. amounted to $4,366.96, 1135. and that the partnership debts of said firm of If taxes due from individuals could not be Spitz Bros, amounted to the sum of $10,000 enforced against the assets of the insolvent
After hearing on the answer to the firm, neither could their individual exemprule, the court found that neither the said Ed- tions. ward nor the said Berthold Spitz was entitled State, Billingsley, v. Spencer, 64 Mo. 355, 27 to any exemptions out of the partnership assets, Am. Rep. 244; Re Corbett, 5 Sawy. 206; 2 except out of any residue which might remain Bates, Partn. $ 1131. after all the partnership debts were paid out The circuit and district courts of the United of the partnership assets of said firm, from States and the supreme courts of almost every which ruling petitioners appealed to this court. state in the United States have passed upon the
question and expressly denied the right of a Messrs. Neill B. Field and Felix H. Les partner to exemptions out of the partnership ter, for appellants:
assets. Exemption laws should be construed;liber- Giovanni v. First Nat. Bank, 55 Ala. 305, 28 ally in favor of the debtor.
Am. Rep. 723; Giovanni v. First Nat. Bank, 51 Montague v. Richardson, 24 Conn. 338, 63 Ala. 176; Terrell v. Hurst, 76 Ala. 588; Levy v. Am. Dec. 173; Carpenter v. Harrington, 25 Williams, 79 Ala. 171; Schlapback v. Long, 90 Wend. 370, 37 Am. Dec. 239; Favers v. Glass, Ala. 525; Aiken v. Steiner, 98 Ala. 355; Richard. 22 Ala. 621, 58 Am. Dec. 272; Rockwell v. son v. Adler, 46 Ark. 43; Bishop v. Hubbard, 23 Hubbell, 2 Dougl. (Mich.) 197, 45 Am. Dec. Cal. 514, 83 Am. Dec. 132; Kingsley v. Kingsley, 252; Thompson, Homesteads & Exemptions, 39 Cal. 665; Cowan v. Their Creditors, 77 Cal. $ 5, and cases cited.
403; McCrimmon v. Linton, 4 Colo. App. 420; Property owned by a debtor as a member of Bates v. Callender, 3 Dak. 256; State, Peck, v. a partnership is alike within the letter and spirit Bowden, 18 Fla. 17; Trowbridge v. Cross, 117 of the exemption laws. The language of the Ill. 109; we v. Blair, 72 Ind. 281; Smith v. act should be construed in harmony with its Harris, 76 Ind. 104; State, Talbott, v. Emmons, humane and remedial purpose. Its design was 99 Ind. 452; Ex parte Hopkins, 104 Ind. 157; to shield the poor and not to strip them. The Drake v. Moore, 66 Iowa, 58; Hoyt v. Hoyt, 69 interest it assumes to protect is that belonging Iowa, 174; Guptil v. McFee, 9 Kau. 30; Staufto the debtor, be it more or less. Whatever it fer's Succession, 21 La. Aon. 520; White v. be, within the limitation of the statute the Heffner, 30 La. Ann. 1280, 31 Am. Rep. 238; debtor's interest is exempt, in view of his own Thurlow v. Warren, 82 Me. 164; Pond v. Kimnecessity and of the probable destitution to ball, 101 Mass. 105; Holmes v. Winchester, 138 which its loss might reduce the family depend. Mass. 542; Baker v. Sheehan, 29 Mion. 235; ing on him for support.
Prosser v. Hartley, 35 Minn. 340; Robertshau Stewart v. Browon, 37 N. Y. 350, 93 Am. v. Hanway, 52 Miss. 713; Woolridge v. Irving, Dec. 578, and note; Skinner v. Shannon, 44 23 Fed. Rep. 677; State, Billingsley, v. SpenMich. 86, 38 Am. Rep. 232; McCoy v. Brennan, cer, 64 Mo. 355, 27 Am. Rep. 244; Julian v. •61 Mich. 362; Waite v, Matheus, 50 Mich. 392; Wrightsman, 73 Mo. 569; Lindley v. Davis, 6 Gilman v. Williams, 7 Wis. 329, 76 Am. Dec. | Mont. 453; People, Till,v. Roy, 3 Neb. 261; Wise v. Frey, 7 Neb. 134, 29 Am. Rep. 380; Lininger much force and seriousness, which is, Can each v. Raymond, 9 Neb. 40; Rhodes v. Williams, 12 and every member of an insolvent partnership, Nev. 20; Terry v. Berry, 13 Nev. 514; Arnold v. who is a resident of the territory, the head of Hagerman, 45 N. J. Eq. 186; Gaylord v. Imhoff, a family, and not the owner of a homestead, 26 Ohio St. 317, 20 Am. Rep. 762; Bonsall v. claim and hold out of the partnership assets of Comly, 44 Pa. 442; Clegg v. Houston, 1 Phila. the insolvent firm $500, or the equivalent in 352; Harley v. Hampton, 160 Pa. 18; Spire v. property? We think not. Appellants contend Paxton, 3 Lea, 75, 31 Am. Rep. 630; Chalfant in their brief in support of this proposition v. Grant, 3 Lea, 118; Gill v. Lattimore, 9 Lea, that property owned by a debtor as a member 381; Short v. McGruder, 22 Fed. Rep. 46; Re of a partnership is alike within the letter and Hafer, 1 Nat. Bankr. Reg. 547; Re Price, 6 Nat. spirit of the exemption laws. The language Bankr. Reg. 400; Re Blodgett, 10 Nat. Bankr. of the act should be construed in barmony Reg: 145; Re Handlin, 12 Nat. Bankr. Reg. with its humane and remedial purpose. Its de49, 3 Dill.
290; Re Tonne, 13 Nat. Bankr. Reg. sign was to shield the poor, and not to strip 170; Re Rupp, 4 Nat. Bankr. Reg: 95; Re them. The interest it assumes to protect is Stewart, 13 Nat. Bankr. Reg. 295; Re Booth. that belonging to the debtor, be it more or less. royd, 14 Nat. Bankr. Reg. 223; Re_Sauthoff, Whatever it be, within the limitations of the 16 Nat. Bankr. Reg. 181, 8 Biss. 35; Re Hughes, statute, the debtor's interest is exempt, in view 16 Nat. Bapkr. Reg. 464; Re Croft Bros. of his own necessity, and of the probable des17 Nat. Bavkr. Reg. 324; Re Melvin, Id. 543; titution to which its loss might reduce the famRe Bjornstad, 18 Nat. Bankr. Reg. 282; Re ily depending on him for support. Freeman, Corbett, 5 Sawy. 206; Commercial & Sav. Bank in his work on Executions (221), says: “It: v. Corbett, Id. 543.
often happens that property designated as ex
empt by statute belongs to two or more perLaughlin, J., delivered the opinion of the sons, either as cotenants or copartners. The court:
question then arises whether this property must The appellants assigned three grounds of be treated as exempt to the same extent as if error in the court below for reversal, but only held in severalty,”—and says that “cotenants one of which will be considered, as that is suf- and copartners have been placed on the same ficient for a full determination of the case on footing in a majority of the states, and both its merits. That assignment is in the following bave been given ihe full benefit of the exempwords, to wit: “Third, the court erred in re- tion Jaws. This position, even wbere the fusing to grant to the respective petitioners the words of the statute do not clearly indicate an exemptions prayed.” The provisions of the intent to deal with undivided interests, is made statute under which appellants seek to estab-tenable by the general rule that these statutes lish their right to the exemptions claimed in must be liberally construed, so as to promote their petitions in this case are as follows, to the policy on which they are based, and acwit:
complish the purposes to which they are diSec. 1. Every person who has a family, rected.” The proposition stated here, that the and every widow, may hold the following question had been so decided by a majority of property exempt from execution, attachment, the states, may have been true at the time the or sale for any debt, damage, fine, or amerce- text was written; but it is not true at this time, ment, to wit:
as it will be found on an exemption that a "Sec. 19. Any resident of this territory, majority of the state courts and Federal courts who is the bead of a family, and not the owner bave held that partnership property is in the of a homestead, may hold exempt from levy nature of a trust fund, and held for the benefit and sale real and personal property to be se of the creditors of the partnership, and that lected by such person, his agent or attorney: the partners cannot claim and hold exemptions at any time before sale, pot exceeding $500 out of the 'partnership assets. In support of in value, in addition to the amount of chattel the propositions stated by Mr. Freeman, supra, property otherwise by law exempted.”
and contended for by the appellants, the follow"Sec. 10. This act shall be so construed as ing citations are made: Stewart v. Brown, 37 N. to apply to all species of indebtedness, against Y. 350, 93 Am. Dec. 578; Gilman v. Williams, 7 exempted property, except taxes.
Wis. 329, 76 Am. Dec. 219; Skinner v. ShanLaws 1887, p. 72.
non, 44 Mich. 86, 38 Am. Rep. 232; McCoy v. The act of the legislature under which this Brennan, 61 Mich. 362; Waite v. Matheus, 50 assignment was made and authorized provides Mich. 392. In Skinner v. Shannon, supra, the as follows, to wit:
court says: “That the several members of a “Sec. 35. All property, both real and per- copartnersbip come within the language of the sopal, exempt from execution under the laws statute and Constitution, there should be no of this territory shall not be conveyed by deed question, and that they, by becoming memof assigoment, and if enumerated therein shall bers of a firm, do not place themselves beyond not pass to the assignee, but shall be reserved the pale of the reason of the law, would seem for the benefit of the assignor, or his family, clear. The same reason which exists for proto be set off and appraised by the appraiser tecting an individual engaged in carrying on mentioned in the first part of this act. Laws business would seem to apply with equal force 1889, p. 158.
to each and every member of a firm. The The quotation of the last statute is given in whole object of the law is to prevent a person full, to show that the appellants lost none of from being stripped of all means of carrying their rights by the deed of assignment, if any on his business, and in this respect no distincthey had under the exemption statute. And tion can exist between those who are members this leaves for determination the proposition of a firm and those who are not. contended for by counsel for appellants with l. . The creditor, in selling goods to an individual, knows that a certain portion of his partnership debts.'” Fourth Nat. Bank v. Nero debtor's property is not, and will not be, sub. Orleans &C.R. Co.78 U. S.11 Wall.624, 20 L. ed. ject to his demands. And so, if he sells to a 82. "It is a rule, too well settled to be now called 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. 8. 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 insol. law directs bow 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 bolding bave 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 bas been truly said) bas es. of Partnerships (8 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 erty first applied to the discharge of the part of the joint assets. The partnership as a body 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, be fund to the extent of the joint debts." Story, cause no partner bas a proprietorship in any Eg. Jur. 5th ed. S 1253; 5 Kent, Com. 36. specific chạttel, 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 Carpartnersbip 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 the partners themselves. And the partnership such; nor is it contended tbat there can be. property is, therefore, sometimes said, not in. But each of the partners claims an individual aptly, to be beld 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 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.
While the adjudged 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 partnersbip estate, at the expense of the from å 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 y. Hields, 4 Ves. Jr. 396, it was said, Guptil v. Uc Fee, 9 Kan. 30, says: “But if we that a party coming into the right of a part- adopt the theory, wbich is the true one, that the ner,
'comes into nothing more than exemption is in favor of individuals only, and an interest in the partnersbip, which cannot pot in favor of copartnerships or corporations, be tangible, cannot be made available, or be we are equally led to the conclusion that partdelivered but under an account between the persbip property is not exempt from execupartnership and the partner, and it is an item tiop.”. And in Pond.v. Kimbali, 101 Mass. in the account that enough must be left for the | 107, the supreme court of that state, as early
as 1869, held that, "property belonging to the the fruits of honest labor, and would be confirm cannot be said to belong to either partner trary to business principles, and tend to destroy as his separate property. He has no exclusive commercial confidence. Suppose one partner interest in it. It belongs as much to his part. had put into the business three fourths, and the ner as it does to him, and cannot in whole or other one fourth; it would be clearly unjust in part be appropriated (so long as it remains and inequitable to hold that he who had put undivided) to the benefit of his family. It into the business only one fourth of the capital may be wholly contingent and uncertain should be permitted to withdraw from the whether any of it will belong to him on the firm assets an equal moiety with him who had winding up of the business and the settlepient invested three fourths of the capital; and, if of his account with the firm." There is al- the principle contended for is sound with remost a limitless number of adjudicated cases spect to any partnership, it is sound with all supporting this doctrine, both Federal and state, partnerships. and it is only necessary to cite a few in addi- It is contended by appellants' counsel, with tion to those already referred to: McCrimmon considerable force, that statutes allowing exv. Linton, 4 Colo. App. 420; Aiken v. Steiner, emptions should be and are construed with 98 Ala. 355; Richardson v. Adler, 46 Ark. 43; great liberality in favor of the poor debtors." Kingsley v. Kingsley, 39 Cal. 665; State, Peck, That, no doubt, is true, and it is the proper v. Bouden, 18 Fla. 17; Ex parte Hopkins, 104 construction; but this is not the class of cases Ind. 157; Hoyt v. Hoyt, 69 Iowa, 174; Terry requiring a liberal or sympathetic construction, v. Berry, 13 Nev. 514; Short v. McGruder, 22 because common experience of every-day life Fed. Rep. 46; Harley v. Hampton, 160 Pa. 18. teaches that in perhaps a majority of the cases
A long list of Federal decisions are cited by of insolvency the members of the insolvent counsel for appellee receiver from the bank- firm, while doing a thriving business on the rupt register in support of these authorities. capital of their creditors, live in opulence,
If the contention made by the appellants is contract obligations with that other class of sound,—that each of the partners of an insolv- people known as “poor creditors," who are ent copartnership is, under the statute, entitled unable to lose the results of their honest toil to claim and have an exemption of $500 out of for the benefit of those who have lived in the partnership assets at the expense of the luxury while holding themselves out to the partnership creditors, as the equivalent of his world as amply and financially responsible for homestead, wben he is not the owner of one, - all their obligations, and then make a deed of then it is sound as to any number and all the assignment, and, as if by the hand of the copartners under like circumstances; and if one magician, they are converted into “poor debtmember of the copartnership furnishes all the ors,” and raise the alarm that they are being capital, and the others conduct the business as pursued and oppressed by their creditors. Our profit partners only, and contract partnership statute is fairly liberal in providing exemptions obligations, and become insolvent, then each to the poor and needy. It exempts a homestead of the profit partners would be entitled to an to the heads of families, to the amount of exemption out of the assets at the expense, first, $1,000, and the proceeds of the homestead of the partnership creditors, and, secondly, at when sold to that extent for one year, and other the expense of the partners who furnished all personal property amounting to several hunof the capital for the enterprise or business, if dred dollars, and the personal earnings of the he should happen to have private property out debtor, or his minor child or children, for of which the partnership debts could be col- three months, and it is this class of debtors lected; thus affording the profit partners an upon whom the law always sheds its mantle of opportunity to secure and hold the exemptions charity in its protecting care of the weak out of the property in which they never had against the strong, and in whose favor the law any interest, and out of a business in which is, and should always be, construed liberally. they never invested a dollar of their own There was no error in the court below in money. Such a proposition is neither sound refusing to grant the prayer for exemptions as in morals nor in law. There is no principle of prayed for by the appellants, and for the fore. the law better settled than that partnership going reasons the judgment of the Lower Court assets must first be applied to the payment of is affirmed. And it is so ordered. partnership debts. And to attempt to establish any other rule would be to encourage the Smith, Ch. J., and Bantz and Hamilton, thriftless and unscrupulous at the expense of 'JJ., concur. -34 L. R. A.
LOUISIANA SUPREME COURT,
George W. MCCONNELL
Messrs. James Wilkinson, R. H. Lea,
and Farrar, Jonas, & Kruttschnitt, for David LEMLEY, Appt.
Article 2322 of the Civil Code provides that (49 La. Ann. --.)
"the owner of a building is answerable for the *1. A member of a surprise party visit caused by neglect to repair it, or when it is the
damage occasioned by its ruin, when this is ing the house of a friend for the purpose result of a vice in its original construction.” of spending an evening in social amusement, sustaining injury by means of a falling gallery,
This article applies, and was intended to apHeld, that she cannot recover damages of the ply, only to passengers on the public highowner of the building, who had leased it as a place ways and to neighbors, and it was not intended of residence to the friend whose house the party to apply to persons voluntarily entering privisited.
vate premises, and there suffering an injury. 2. Rev. Civ. Code, arts. 670, 2322, This is the necessary result of a comparison
must be construed together as laws in of article 2322 with article 670 of the Civil pari materia; and, being thus construed, they Code. exclusively relate to the injuries wbich may be Camp v. Church of St. Louis, 7 La. Ann. inflicted by falling walls, or materials composing 325. them, upon neighbors or passers-by, and not to At common law, both the authorities and the those resulting to occupants of the buildings, or text-writers are in our favor. guests therein assembled.
Edwards v. New York & H. R. Co. 98 N. Y. (April 6, 1896.)
245, 50 Am. Rep. 659; Shearm. & Redf. Neg.
4th ed. 8 711, p. 593; Buswell, Personal InAPPEAL by defendant from a judgment of Maries
, p. 124; Whittaker’s Smith, Neg. pp. 83, Orleans in favor of plaintiff in an action
The French authorities sustain the same brought to recover damages for personal in view. juries to plaintiff's daughter which were al
Fuzier. Herman, Code Annoté, Commentary leged to bave been caused by defendant's neg- on C. N. art. 1886, No. 16, and authorities Jigence. Reversed.
there çited, including particularly: Demolombe, The facts are stated in the opinion.
Vol. 31, No. 659; Aubry & Rau, vol. 4, p. 772,
$ 448, note 14; Larombière, Commentary on *Headpotes by WATKINS, J.
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, althougb 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. Io MCCONNELL V. LEMLEY agreed that the same disposition is to be made of the court says: “The guests of tbe tenant have no the three cases, and therefore the court treats the claim against the landlord for damages they bave cases as an action by the tenant alone, sustained while on the premises." In STENBERG In Minor v. Sharon, 112 Mass. 477, 27 Am. Rep. v. WILLCOX the court makes the express or implied 122, minor children of the tenant sued for injuries knowledge of the guest as to the defect a material caused by their contracting small pox, with which element in the consideration of the landlord's the tenement was infected to the knowledge of the liability. It appears to be the first case in which landlord, but which fact he did not communicate that element has appeared. The person whom the to the tenant. The action by the children was tepant invites upon the premises is universally re- tried with the action by the father for a similar garded as so far identified with the tenant that his cause, and tbe court places the liability on the right of recovery against the landlord is the same same ground, and approves a finding in favor of that the tenant's right would be bad the accident plaintiffs. happened to him. The guest is regarded not as a In Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548, stranger with independent rights. Consequently although the injury was to the wife of the tenant, the question whether or not the guest knew or the husband was joined as plaintiff in the action, might have known of the defect has been treated and the court treats the case as one of landlord as immaterial.
and tenant. Duty the same towards tenant and tenant's quest or
Landlord not generally liable. servant.
Invited guests of a tenant must seek their remIn Bowe v. Hunking, 135 Mass. 380, 44 Am. Rep. edy against bim, and not against the landlord, for 471, which was an action by the wife of the tenant injuries caused by defective repair of the leased for injuries caused by a defect in the premises, the premises. Marsball v. Heard, 59 Tex. 266. -court says persons who occupy by permission of If a guest enters and while upon the premises is the tenant or as members of his family cannot be injured without his own fault by some defect in considered as occupying by invitation of the land- the premises be must seek bis damages from him lord, so as to create a greater liability on the part whose invitation impliedly assured him he could of the landlord to them than to tbe tenant.
enter safely, and who alone is responsible for the In Cole v. McKey, 66 Wis. 500, 57 Am. Rep. 293, defect which caused the injury. In such a case the which was the case of an injury in a common pas- i guest can have no greater claim against the lessor