crees that the real estate before described forms part of the community, it is decreed that it is affirmed, at appellees' costs. (46 La. Ann.) SEARCY et al. v. THEIR CREDITORS. (No. 10,930.) (Supreme Court of Louisiana. March 12, 1894.) INSOLVENCY-PROCEDURE-JUDGMENT. 1. Judgments homologating, as far as not opposed, the accounts of an administrator or syndic, fix the rank of creditors and order of distribution stated on the account, and such judgments cannot be disturbed by subsequent judgments, except so far as concerns the opponent. Hubbell v. Read, 14 La. 242; Mayfield v. Comeau, 7 Mart. (N. S.) 182; 1 Hen. La. Dig. p. 759, Nos. 2, 9, et seq. 2. The lessor's claim for rent and certain privileged debts rank the debt of the vendor of movables; and when the funds brought on the account, it is manifest, leave nothing for such vendor after satisfying the privileged debts preferred to him, the judgment directing him to be put on the account will be reversed. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; Frederick D. King, Judge. To the report of John A. McLean, syndic of Searcy & Co., insolvents, H. Dudley Coleman & Co. file opposition, and from a judgment sustaining the opposition McLean and others appeal. Reversed. William Armstrong, for appellants. Guy M. Hornor, for appellees. MILLER, J. This is an appeal by the syndic and his attorneys from the judgment of the lower court maintaining opposition of a creditor to the syndic's account. The funds in his hands were mainly derived from the sale of the effects in premises leased by the insolvents, and the rent for the unexpired term of the lease is unpaid. Among these effects were certain movables, bought by the insolvents, sold separately, at the instance of the unpaid vendor, realizing more than enough to pay him, and on the proceeds he asserts the vendor's privilege. Besides the funds arising from the sale of all these effects in the leased premises, subject to the special privileges of the lessor and vendor, there are funds for distribution derived from other sources. There were two accounts filed. The first exhibited privileged debts incident to the syndic's administration and other charges. The aggregate of all these privileged debts and charges were deducted from the mass of the funds and the residue awarded to the lessor. It is obvious the account was not framed in accordance with the provisions of the law directing the distribution when there are general and special privileged debts to be paid from funds, a portion of which is subject to no special privileges, and another, and in this case the larger, portion is charged with special privileges. Rev. Civ. Code, arts. 3191, 3252, 3254, 3256, 3263. The account was homologated as far as not opposed, the only opposition coming from the unpaid vendor of the movables sold separately. The opposition, asserting his right of payment, over all (save the charges of sale), from the proceeds of the movables, was sustained, and the syndic directed to recast his account. The syndic then filed another account, in which he pursued the same method of distribution of paying the mass of all privileged debts from the mass of all the funds. This account was also homologated as far as not opposed, and, like the first, with no opposition, except from the unpaid vendor, still asserting his privilege for the unpaid price on the proceeds of the movables he had sold. On this last account the total proceeds were stated to be $3,390, the privileged debts, attorneys' and notaries' fees, auctioneers' commissions, syndics' commissions, clerk hire. and other charges figured on the account, amounting to $1,813.11, all deducted from the mass of all the funds, left $1,576.97, and this residue was awarded to the lessor, his unpaid rent amounting to $2,740, for which he was put on the account. The lessor was left unpaid for a large portion of the rent, and there was nothing for the unpaid vendor. On the opposition the court decreed that privileged debts-i. e. charges for attorneys' and notaries' fees-were inferior to the privilege of the unpaid vendor. and that he should be placed on the account, with preference over these fees, amounting to $590. The court further decreed that the lessor, as well as the vendor, had preference over the fees, and reduced $100 on the account, as reserved for costs, to $20. From this judgment on the opposition this appeal is taken by the syndic and his attorneys, whose fees are subordinated by the judgment to the special privileges. The contention of the appellants is that, by the judg ment homologating the accounts as far as not opposed, their fees were to be paid by preference over the lessor; that the judg ments constituted res judicata against the lessor, who made no opposition to the distribution. The contention of the syndic is that he can pay only to the extent of the funds in his hands, and that the uncontested privileged debts and the lessor's unpaid rent more than absorb all the funds; hence the judgment is erroneous in ordering the opponent to be put in the account. The judgment homologating these accounts, as far as not opposed, determined. as against all save the opponent, that all these privileged debts were to be paid before the lessor. Whatever may be said of the method of distribution adopted by the syndic, these judgments must have effect. Hubbell v. Read, 14 La. 242; Mayfield v. Comeau, 7 Mart. (N. S.) 182; 1 Hen. La. Dig. p. 759, Nos. 2, 9, et seq. The lessor, whose privilege is superior to that of the opponent (Rev. Civ. Code, art. 3262), is certainly bound by these judgments. according preference over him to all privilege debts. This preference, fixed by the judgment homologating the account, could not be disturbed by the judgment of the lower court, subsequently rendered, on the opposition only of the unpaid vendor. On that opposition the privileged debts, to the extent of $590, are excluded from competition with opponent. But with that exclusion there remain, on the account, privileged debts, ranking as first in order of payment, amounting to $1,223. These debts. as to amount save the reserve of $100, were not called in question by the opposition. The judgment, unappealed from by the opponent, leaves the preference accorded his debts in full force. The lessor's claim figures on the account at $2,740, not opposed and maintained by the judgment. Thus, there stands between opponent and the relief he seeks nearly $3,900 of superior privileges recognized by final judgment. The privileged debts, to the extent of $1,223, are beyond the domain of contention, by the absence of opposition, and the judgment acquiesced in, and the priority of the lessor over the opponent is fixed, not only by the judgment, but by the law. The judgment of the lower court, responding to the demand of the opponent, asserts the preference given to him when there are funds that can be so applied consistently with debts of the higher rank. The difficulty in opponent's case is that in the plenitude of his privilege; still there is no room for him on the account. It is therefore ordered, adjudged, and decreed that the judgment of the lower court be avoided, annulled, and reversed, at the costs of the appellees. (46 La. Ann.) DAVE v. MORGAN'S L. & T. RAILROAD & On the hearing of an exception to the jurisdiction of the court it appears by the allegations taken as true for the exception that the defendant company carried the plaintiff, a passenger, beyond his point of destination; that he was forcibly put off at a point at which there was no station. The wrongful act was, if truly alleged, a trespass actionable in the parish in which the passenger was thus ejected. (Syllabus by the Court.) Appeal from district court, parish of Lafourche; L. P. Caillouet, Judge. BREAUX, J. This is an action sounding in damages. For the purpose of the trial of the exception interposed to the jurisdiction of the court the following is taken as true: That on November 26, 1893, the plaintiff bought a railroad ticket from the defendant company, entitling him to a first-class passage from Lafourche Crossing to Rousseau Station on the road. That, arriving at the station in the dark, he could not distinguish it as his stopping place. That the train passed the station, and went beyond about one mile before stopping, not having stopped at the station. The train having stopped, he was ordered "in a very peremptory and insulting manner to get off. Did get off the train, when it thus stopped, a mile or more be yond Rousseau Station, in obedience to said peremptory orders, whereupon the train moved off, and petitioner found that he was not at Rousseau Station, but about a mile beyond, where there was no station. That at the time he was put off it was raining very hard, and there was no shelter at that point; and that by this malicious, wanton. and forcible act of ejecting petitioner he was forced to walk back to Rousseau Station, his original point of destination, feeling and finding his way as best he could in the dark and rain. That the orders to him to get off the train were given by an employe of the defendant company." The petitioner alleges a disregard of his rights and feelings, and claims damages. The defendant filed an exception of want of jurisdiction; that under its charter it was exempted from suit elsewhere than at its domicile, except in cases of trespass; and that plaintiff's suit was not an action of trespass. From a judgment sustaining this defense and dismissing the suit, plaintiff has appealed. Section 12 of defendant's charter reads as follows: "The domicile of the company shall be in the city of New Orleans, and citation shall be served there on the president of the company, or, in his absence, on the secretary; and the company shall be sued only at its domicile, except in actions of trespass. when the company may be sued in the parish in which the trespass has taken place." In determining the rights of the parties under the allegations made, the court considers only the constituent principles of the action, and not mere inferences from them on the part of the pleader. The question is one of trespass vel non, and, unless the action is for trespass committed, the court was without jurisdiction. Trespass, even in law, has a broad and comprehensive meaning. It is defined by Blackstone as follows: "Trespass, in the most extensive sense, signifies any transgression or offense against the law of nature or society or of the country in which we live, whether it relates to a man's person or his property. Therefore beating another is a trespass, tak ing or detaining a man's goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law. So, also, nonperformance of promises or under. takings is a trespass, upon which an action of trespass in the case in assumpsit is grounded; and in general any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense." In its more restricted sense it is defined as an unlawful act committed with violence, or injury committed with violence to the person of another. Ejecting the passenger in the manner he was ejected, if the allegation be true, was an injury. There was negligence in not offering him the opportunity to alight at the place of his destination. Having taken him past such station without his consent, and without being allowed a reasonable opportunity to leave the train, he has a right of action for damages that may have occurred to him. They are not damages arising under a contract. They do not arise from the inexecution of an obligation, or a mere vio lation of the terms of the agreement in the execution. Originally the parties may be bound under a contract, and their rights decided by reference to it. The parties may remove from the obligations of the contract entirely, and torts may, and frequently do, occur independently of the contract. It may be founded on or grow out of some violation of a right created or secured by contract. The injury in the case at bar includes the expulsion from the train, and in consequence, as alleged, was more of an injury than there was in the following cited cases. "And it has been said that the liability of a passenger carrier for not stopping at a certain place and taking passengers according to public announcements, made known through the public print or in writing, is one founded upon a tortious violation of a general duty, and not upon any breach of special contract." Redf. R. R. (6th Ed.) p. 298. In another case, wherein the facts were almost identical, the decision was that "in such cases the passenger would be entitled to recover damages for the injury, because the railway company has committed a flagrant breach of duty." The rule "volenti non fit injuria" will not apply, so that it may be held that the passenger, by not offering resistance, precluded himself from the possibility of truly alleging that he had been violently ejected. In trespass upon lands or real estate, any entering into the inclosure of another without his consent is, in law, a breaking into it, and force is implied in all actions of trespass of this kind. In trespass arising from injury to the person, any force, however slight, in the commission of an un lawful act, may be sufficient to constitute the offense. Considering the petition in its entirety, without regard, however, to possible inferences or conclusions, it does not ap pear that plaintiff's act in alighting was voluntary. Ordinarily no passenger, if insult ingly ordered to alight, while the train is stopped awaiting until he gets out, would be willing to remain in the car. Alighting under those circumstances cannot be considered as preventing the passenger from maintaining an action for damages arising from trespass on his rights. Trespass grows out of the consequence of the illegal act and force to which the injured party has been subjected. The question of the cause of action is not before us, and is not considered in reaching our conclusion. The defendant, for the exception, admitted the truth of plaintiff's allegation. We conclude that the plaintiff was compelled to leave the train, and that he was rudely ejected. If, under similar circumstances, a passenger had broken one of his limbs, or if some other serious accident had happened to him, without negligence on his part, the trespass would be manifest. That no accident happened does not change the character of the forcible ejectment from a trespass to a vio lation of contract. We do not enlarge the interpretation laid down in Heirs of Gossin v. Steamship Co., 36 La. Ann. 186. The design and effect of section 12 remain as defined in that decision. We hold that forcible ejectment, without cause, from a train, is trespass, and actionable in the parish in which it occurred. It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and set aside; that the case be remanded, and reinstated by the district court for trial, and duly tried; defendant and appellee to pay costs of appeal. (46 La. Ann.) STUART et al. v. SUTCLIFFE et al. (No. 11,264.) (Supreme Court of Louisiana. Feb. 12, 1894.) LIFE INSURANCE-ASSIGNMENT OF POLICY. 1. A policy of life insurance made payable to the assured, his executors, administrators, and assigns, is, in law, assignable as any other incorporeal right. 2. Such a policy does not constitute an asset of the succession of a living person, and amenable to the denunciation of Rev. Civ. Code, art. 2454. (Syllabus by the Court.) Appeal from civil district court, parish of Orleans; Francis A. Monroe, Judge. Action by William H. Stuart and others, executors, against W. W. Sutcliffe and others, to recover on a policy of insurance. Defendants had judgment, and plaintiffs appeal. Affirmed. Joseph Brewer, Horace L. Dufour, Girault Farrar, and Henry J. Delesdernier, for appellants. Carroll & Carroll, for appellees. Howe & Prentiss, for appellee Mutual Life Ins. Co. of New York. WATKINS, J. This suit is prosecuted by the executors of William Stuart, deceased, for the recovery of a policy of insurance in or increased on final liquidation of said partnership; and the right is reserved by John Klein & Co. to claim any such additional sum as may be found due on final settlement. He further represents that the plaintiffs have no rights or claims except as standing in place of and as representing the deceased, and that said credits on the books of the partnership in favor of Stuart, as well as the loan from Sutcliffe to said partnership, were lawfully made on the faith of the pledge of said policy of insurance, and that its pledge and assignment were made for a good and valuable consideration, and in perfect good faith; and that the deceased had the full benefit of the sums of money that were advanced by Klein & Co. to him, and by Sutcliffe to Klein & Co., and neither the deceased nor his heirs or legal representatives could legally demand the restitution of said policy or its avails without first paying or restoring the amounts thus received, for all of which Stuart was responsible personally and as a member of the firm. His prayer is that the demands of Klein & Co. and Sutcliffe be recognized and enforced. The answer of Sutcliffe is that on the 13th of March, 1890, he loaned John Klein & Co., through William Stuart, a member of that partnership, the sum of $5,000, for which it gave its promissory note, payable to his order one year after date; and that in order to secure payment of same said partnership pledged to him as collateral security the policy of life insurance above mentioned, said note being from time to time renewed upon payment of interest. That the said note is still unpaid, and that he is entitled to retain said policy or its proceeds now in the possession of the court in their entirety, and apply same to the satisfaction of said indebtedness, capital and interest; specially denying the plaintiffs' legal right to a sequestration, and praying for its dissolution. In a supplemental petition plaintiffs allege that for many years antecedent to his death William Stuart was in very bad health, partially blind, and unable to transact business; and that by reason of his physical infirmities Klein obtained undue influence and control over him, and thus obtained from him the pledge and assignment of said policy of insurance through imposition and false pretenses, from the effect of which petitioners, as his legal representatives, are entitled to be relieved, and to have said pledge and assignment set aside and revoked, and the policy and its avails restored to their possession and control. To this petition the defendant Klein pleaded a general and special denial. Upon the issues thus formulated a general judgment was rendered in favor of the defendants, which is concluded in the following terms, to wit: "It is ordered, adjudged, and decreed that there be judgment in favor of the defendants and against the plaintiffs rejecting their demand, and dissolving, setting aside, and quashing the writ of sequestration issued herein, at the costs of the plaintiffs; and, inasmuch as the Mutual Life Insurance Company of New York for the sum of $3,000, and its dividends and avails, which risk had been taken on the life of the deceased, and which, it is alleged, by its terms and by operation of law is made payable to the heirs and legatees of the deceased, and, as such, is an asset of his succession; the present value of same aggregating, at date of the death of Stuart, $9,215. Plaintiffs allege that the policy is in the possession of either W. W. Sutcliffe or John Klein, who claim the right to collect from the life insurance company; but they aver that their claim is unfounded, and that the demands set up by them against Stuart are void, and of no effect or validity. That said policy being an asset of Stuart's succession, no assignment or transfer thereof, whether made by said Stuart during his life or by any other person, is valid, because same was in contravention of the prohibitory terms of article 2454 of the Revised Civil Code; and, further, that the pretended assignments under which the said Klein and Sutcliffe claim to hold said policy were made without any consideration, and same were in violation of the rights of the forced heirs of said Stuart, said executors being the sole surviving issue of the deceased, and who have accepted his succession with the benefit of inventory. Upon appropriate averments and prayer a sequestration was ordered, and the policy taken into custody, but subsequently the indebtedness of the company was ascertained, and the amount fixed at $9,215, which was paid over to the sheriff, under orders of the court, to await the result of this litigation. Klein, in his answer, avers that William Stuart, at the time a member of the partnership of John Klein & Co., which was composed of Klein, Stuart, and Mrs. Widow George H. Shotwell, did, for a valid and adequate consideration, make and deliver to said partnership his certain promissory note, dated May 10, 1889, payable one year after date, for the sum of $4,000, to the order of said partnership; and that to secure the payment of said note Stuart pledged and assigned to John Klein & Co. said policy of insurance, and at the same time authorized said partnership to pledge the same to any future holder. That on the 31st day of July, 1889, said Stuart did exe cute his promissory note to the order of said partnership for the sum of $2,000, and in order to secure the same he further pledged and assigned said policy of insurance, and authorized said partnership to pledge the same. He further avers that since the execution of said notes they were discounted, | and the proceeds thereof placed to the credit of Stuart on account on the partnership books; and that since that time various transactions have taken place pro et con, consisting of credits to and charges against Stuart, and that, as matters now stand, his net indebtedness aggregates the sum of $5,763.55, with 6 per cent. interest thereon from June 30, 1892, which amount may be diminished v.14so.no.17-58. during the pendency of these proceedings the policy of insurance issued by the Mutual Life Insurance Company of New York on the life of William Stuart, sequestered herein, has become due and payable, and the amount due thereunder, say the sum of $9,215, has been paid over to the civil sheriff, and as said sum is in excess of the claims and debts set up as being secured by pledge and assignment of said policy, it is further ordered, adjudged, and decreed that the pledge and assignment made to and in favor of the defendant W. W. Sutcliffe be recognized and enforced, and, accordingly, that out of said sum in the hands of the sheriff the said defendant Sutcliffe be paid the sum of $5,000, with interest at the rate of 6 per cent. per annum from September 16, 1891, until paid, by priority and preference over all parties whatsoever; that the sheriff retain in his hands a sum which, when added to the amount to be paid said Sutcliffe as above provided, will make the total sum of $5,763.55, with interest thereon at the rate of 6 per cent. per annum from June 30, 1892, up to the date upon which payment shall be made to said Sutcliffe as above provided; that said sum be so retained until the liquidation and settlement of the business and affairs of the partnership of John Klein & Co. shall be effected, or until the appointment of a liquidator of said partnerships, and until the further order of this court; that the balance of the amount in the hands of the sheriff be paid over to the plaintiffs William H. Stuart, Charles D. Stuart, and Frank P. Stuart, executors of the late William Stuart; that, as the claims of John Klein and Mrs. Sarah L. Shotwell, as members of the partnership of John Klein & Co., for and on behalf of said partnership against the plaintiffs and the succession of William Stuart, and as to the alleged transfer, assignment, and pledge by William Stuart of the policy of insurance sequestered herein to said John Klein & Co. to secure said claims, the rights of all parties be reserved, to be determined and settled on the final liquidation of said partnership; that the right of the plaintiffs and the succession of William Stuart be reserved to claim and receive on the final settlement of the business and affairs of said partnerships of John Klein & Co. full and proper credit for the amount to be paid to the defendant W. W. Sutcliffe under this judgment, or such part thereof as should be properly so credited; that the Mutual Life Insurance Company of New York be released and discharged from any and all further liability under said policy of insurance; and that the plaintiffs pay all costs of these proceedings." It is from this judgment that the plaintiffs have appealed; and, in this court, the defendants have respectively made answers to the appeal, which, in effect, request such amendments as will conform the decree of this court to the demands of their original answers. The foregoing synopsis of the pleadings and issues of this case resolves the con troversy into the following propositions, viz.: (1) That the policy of insurance, by its terms, as well as by the operation of law, is payable to the heirs and legatees of William Stuart, and, as such, same is an asset of his succession; and no assignment or transfer, whether made by said Stuart during his life or any other person, is valid, because same is in contravention of the prohibitory terms of article 2454 of the Revised Civil Code. (2) That the pretended assignments under which Klein and Sutcliffe claim were made without consideration, and in violation of the rights of the forced heirs. (3) That by reason of the physical infirmities and partial blindness of the deceased, John Klein obtained over him an influence and control which he could not have obtained had the deceased been in good health and in possession of his eyesight; and that the assignment was procured by said Klein from Stuart by imposition, and under false pretenses. 1. Referring to the policy, we discover that it contains the following stipulations, to wit: "And the company do hereby promise and agree to and with the said assured, his executors, administrators, and assigns, well and truly to pay the said sum insured to the said assured, his executors and administrators, or assigns, within sixty days after due notice," etc.; while the claim of the plaintiffs is that "by the terms and by operation of law it is payable to the heirs and legatees of the deceased," whom they personate; and "said policy being an asset of the succession of William Stuart, then assignment thereof was in contravention of the prohibitory terms of article 2454 of the Revised Civil Code." Plaintiffs do not make claim as beneficiaries of said policy, but as the executors and heirs of deceased; hence, for all purposes of this case, the plaintiffs occupy exactly the same situation as that occupied by the deceased, and can invoke no other cause of nullity than such as he could have urged while living. And it is evident that Stuart had no succession, in the ordinary acceptation of the term, while living. and his heirs had no inheritance. The denunciation of article 2454 of the Code is directed against a sale of the succession of a living person, which it declares not to be the subject of sale, evidently because such a sale could, in the very nature of things, only be prospective and uncertain; the law declaring that "succession is the transmission of the rights and obligations of the deceased to his heirs." Rev. Civ. Code, art. 871 et seq. But the prohibition contemplates a sale of an entire succession; or, in other words, the sale of all that the vendor may own at his death. It does not purport to prohibit the sale of any single, isolated piece of property that an individual may own, such as a policy of life insur ance.--although it might happen to be all the property that he possessed at the time; |