Campbell v. J. I. Campbell Co.

Citations

• 117 La. 402
• 41 So. 696
• 1906 La. LEXIS 712

Syllabus

<p>1. Partnership — What Constitutes.</p> <p>Where officers and members of a mercantile corporation, created by the law of another state with a capacity to exist and do business only in certain named counties in that state, attempt to establish the corporation under another name in the state of Louisiana, the effect, so far at least as third persons are concerned, is the establishment of a mercantile partnership composed of the parties to such attempt, and where it appears that such partnership, in its own name, has acquired property and contracted debts, such property will be devoted to the payment, by preference, to the debts so contracted.</p> <p>[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Partnership, §§ 56-58.]</p> <p>2. Marshaling Assets — Creditor Holding Securities.</p> <p>A creditor holding collateral security for his debt may be required io exhaust such security before being allowed to participate in the distribution of a common fund which is insufficient to pay in full the debts of the common debtor, and a reasonable time may be allowed him for the discussion of such security, during which the dis'ribution of so much of the common fund as L tentatively attributed to the payment of his debt may be suspended.</p> <p>[Ed. Note. — For cases in point, see vol. 34, Cent. Dig. Marshaling Assets and Securities, §§ 1-4.]</p> <p>On Rehearing.</p> <p>3. Marshaling Assets — Discussing Collaterals.</p> <p>The two companies are separate and distinct.</p> <p>One was the maker of a note and acceptor of drafts, and primarily liable. The other was the transferror and secondarily liable.</p> <p>The creditor of each was not obliged to discuss the collaterals deposited by the latter in order to receive its proportional share of the assets of th; former and insolvent concern.</p> <p>4. Trial — Dismissal—Want oe Evidence.</p> <p>An intervener who dealt with anoth.er corporation as its debtor, who fails to support its claim by proof, must be dismissed. Under the exc