
    No. 11,382.
    W. S. Reddick vs. R. M. White.
    On Motion to Dismiss.
    There is no provision in our law permuting- the filing o£ the record o£ appeal “informa pauperis.” The record must be stamped or the cause can not be heard. Constitution of 1879, Art. 145; Act No. 186 of 1889, See. 1, pars. 441,10, 22.
    On the Meeits.
    The administration by the husband of the paraphernal property of the wife is not displaced and the community deprived of the fruits' merely because the husband receives a salary from the partnership of which his wife is a member, formed for the cultivation of the plantation, a part of which is her paraphernal property; the husband having the management of the entire plantation for the partnership as well as for his wife Civil Code, Arts. 2883, 2885, 2386; 18 La. 431; 6 R. 41; 12 R. 524.
    An action by the husband for alleged advances to and debts paid for such partnership, brought against the partner of his wife, is subject to the rule that one partner can not sue his copartner for specific sums, but only for a settlement of the partnership and for the balance with interest thereon found due on settlement. Story on Partnership, Sees. 217,219, 221; 4 Rob. 445; 10 Martin, 483.
    An action to recover the amount of alleged debts paid and advanced for another, is an action for the settlement of a partnership and is prescribed by ten, not by one, three or five years. Civil Code, Arts. 3358, 3554; Act of 1888, No. 76; 12Rob. 148.
    PPEAL from the Civil District Court, Parish of Orleans. Bightor, J.
    
    On Motion to Dismiss.
    
      F. O. Zaeharie against the motion.
    The judgment allowing this proceeding in forma pauperis was rendered contradictorily with the defendant in the District Court, and he having neither appealed nor excepted thereto can not urge objections thereto by a motion to dismiss the appeal.
    The granting of an application 1 o proceed in forma pauperis lies with the District Judge. 38 An. 423.
    Applications to so proceed can be made and granted at any stage of the proceedings in the lower court. Eng. and Am. Ency. of Law, Vol. 8, p. 548; Ibid., Vol. 4, pp. 325, 319.
    The right is guaranteed under Magna Oharta XLVII and XLVI and under Louisiana Constitution, 1879, Art. 11.
    
      Ubi jus, ibi remedium, lex semper dabit remedium. Brown’s Legal Maxims, 8th Ed., p. 191; 2 Ld. Raymond, 953, are maxims of the civil law.
    Although the right to proceed in forma pauperis in common law must be given by express statute, yet in chancery it is afforded on principles of abstract equity. Eng. and Am. Ency., Vol. 8, pp. 544,. 545, and authorities in note.
    The courts of Louisiana are courts of equity as well as of law, and will give relief wherever a chancellor in equity can and will give. Hennen’s Digest, Vol. 1, pp. 479 and 480, tit. Equity; 7 An. 498; 11 An. 572; 15 An. 409, 506; 2 Howard (U. S.), 318; 2 Oranch, 191; 4 R. 83.
    
      Our statute in prohibiting the filing of unstamped documents is not any more prohibitory than the English law on the same subject, and [yet under that law, in admiralty and equity, unstamped documents are allowed. Pritchard’s Admiralty Dig., Vol. 1, 442, tit. Stamps, Secs. 229, 230, 231, 232, 378.
    On the Merits.
    Same Counsel for Plaintiff and Appellant:
    Prescription liberandi causa is to be construed strieti juris.
    
    The prescription under Art. 3358, R. C. 0., and the amendatory Act 78 of 1888, does not apply to the debts of one co-obligor paid by his joint obligor. 12 R. 149; 2 An. 636, 780; 10 An. 395; 19 An. 493; 24 An. 200; 28 An. 181; Bishop on Statutory Crimes, pp. 227 and 246; Bacon’s Rule; 8 Smith (Penn.), 448; Dwar. Stat., 2d Ed. 621; Smith’s Const. Stat. 172; 7 Carr and P. 444; 6 16. 369, 726, 446; 11 Ire. 477; 10 Vt. 587; 9 Carr and P. 486; 44 Mich. 617; 38 Iowa, 321; 84 N. Y. 565; 71 N. Y. 481; 29 Mich. 50; 1 East P. C. 187, 188; 18 Ala. 415; 2 Ev. D. 268; 7 B. and O. 596; 23 Law Times Rep. 156; 28 L. and Eq.; 5 Bing. N. C. 185.
    The prescriptions of one and five years do not apply to the same, but only the ten years prescription for personal actions. Same Louisiana authorities as above.
    A judgment, to have the authority of res adjudícala and the effect of estoppel, must be for the same cause of action, for the same thing, between the same persons, on the same quality. Bouvier’s Diet., verbo Bes judicata. “A judgment for or against two or more joint parties ordinarily determines nothing as to their respective rights and liabilities as against each other in their own subsequent controversy.” Black on Judgments, Vol. 2, Sec. 599; 73 Mo. 145; 39 Am. Rep. 489; 35 Ala. 312; 73 Am. Dec. 491; 34 Kan. 122; 8 Pac. Rep. 253; 28 N. J. Eq. 71; 18 Ohio St. 412; 26 Ind 378; Eng. and Am. Law Eney., Vol. 21, p. 152; 46 Hun. N. Y.; 1 Ga. 200; 44 Am. Dec. 638; 95 N. Y. 212; 37 Minn. 49..
    In sales of land which contain no stipulation for interest, the purchaser is liable for interest from the day he takes possession, especially if he receives rents and profits. Eng. and Am. Ency. of Law, Vol. 2, p. 395. All debts in Louisiana bear interest at the rate of five per cent, from the time they become due. R. S., Sec. 1183.
    “ Whenever money has been' received by a party which ex sequo et bono he ought to refund, interest follows as a matter of course.” 95 U. S. 644; O. O. 1932, 2984; 19 L. 431; 8 R. 13; 1 An. 265; 3 An. 338; 13 An. 353.
    The interest of the husband administering the paraphernal property of his wife, as head of the community, is that of a usufructuary. 10 R. 47; 6 An. 636; Duranton, Vol, 14, p. 106; Delvincourt and Proudhon, cited by Toullier, Vol. 12, p. 133; R. O. C. 540; Proudhon, Traité des Droits d’Usufruits, tom. I, Ed. 1836, p. 340, Sec. 279, p. 342; lb., tom. Ill, p. 574, Secs. 1767, 1768.
    And as such on paying debts of a co-obligor is subrogated to all the rights of the co-obligor’s creditor. Proudhon, Traité des Droit d’Usufruit, tom. IV, p. 89, Sec. 1407, Ed. 1836; Demolombe, Traité des Contrats, tom. IV, pp. 517, 518, 568; Mourlon. p. 454; Gauthier, 356; LarombiSre, tom. Ill, Art. 1251; No. 44, See. 570; 2 R. 424; 5 An. 500; 9 An. 247; R. O. O., Art. 2161, Sec. 3; 14 An. 663; Hennen’s Dig., Payment, II, Vol. 2, p. 1164; 15 An. 705.
    The husband, in the absence of proof to the contrary, is presumed to administer the paraphernal property of his wife. R. O. O., Art. 2385; 14 An. 282; 18 An. 105; 6 R. 41; 18 An. 189; 20 An. 208; 21 An. 345; 33 An. 160; Merlin, Répert. de la Jur., tom. 22, p. 275, par. 3.
    When accounts are complicated and need intricate calculations, the Supreme Court will remand the ease to have them adjusted and audited in the lower court. 5 An. 192; 31 An. 532; 34 An. 1218; 36 An. 351.
    The two spouses and the community constitute three separate entities, or Ures moraux, having each their separate, distinct relations to each other. 6 An. 636.
    A debt owed by one person to another does not become a partnership debt, by the creditor and debtor afterward forming a partnership, and the creditor may sue the debtor therefor before the settlement of the partnership. 2 An. 218; 6 An. 682.
    The cases cited in 4 R. 440; 10 M. 433, and Story on Partnership, are ■ eases of partnership debts paid by individual partners, and the doctrine therein does not apply here.
    
      In cases where the debt is an individual and not a partnership debt, the partner paying the debt of the other may recover before a settlement of the partnership. Eng. and Am. Ency. of Law, Vol. 17, pp. 1257, 1258, 1259 and cases there cited, particularly 6 Ala. 129; 4 Ala. 225; 38 111. 533; 10 Allen, 429; 10 Iowa, 224; 15 Johns. (N. Y.) 160; 62 Mich. 133.
    
      E. Howard McCaleb Attorney for Defendant and Appellee:
    Where the fruits and revenues of a wife’s paraphernal property were put into a copartnership, of which she was a member, with the authorization of her husband, and where the husband was an employó of such partnership, he can not subsequently claim that these fruits and revenues were under his dominion and control, as head and master of the community. 14 An. 68; 26 An. 640; 14 An. 211; 42 An. 785.
    Where the husband acts as agent of a partnership, of which his wife is a member,'he can not be considered as administering her property put into such partnership, in his capacity as head and master of the community, and, as such, entitled to the fruits and revenues. A husband may act as his wife’s agent, in the administration of her paraphernalia, with or without a written power of attorney, and without depriving her of her administration. 33 An. 160; 2 An. 890; 17 La. 421.
    The property of a succession, when received by the wife, is paraphernal, which she may administer without the consent of her husband, and in the administration of which she needs not his authorization.
    Plaintiff’s claim, if any he ever had, which is denied, is prescribed (1) by ten years (R. O. O. 3544) ; (2) by five years (3540). (“A silence of five years in the settlement of partnership accounts will bar any claim for abalance.”) (17 An. 28) — and (3) by three years. Act No. 78 of 1888.
    “An agent’s right of action upon an account for moneys advanced is barred by the lapse of three years. 16 An. 224.
    A partner can not sue his copartner for specific sums, but only for a settlement of the partnership and for the balance found due on such settlement. Story on Partnership, Sees. 217, 219 etseq.; 4 Rob. 445; 10 M. 433; H. D. “Partnership,” IV. (b),Nos. 1 and 2, p. 1093. “A suit for a specific sum can not be considered a suit for a settlement, even where there is a prayer for general relief.” Mead vs. Ourry, 8 N. S. 281.
    The prayer of the petition determines the character of the action. 16 La. 44; 1 Rob. 109; 5 Rob. 132; 10 An. 657; 15 An. 293; 20 An. 170. It appearing from the prayer of the petition in this case that plaintiff sues defendant for a specific sum, and not for the settlement of the partnership of Reddick & White, defendant’s exceptions, filed in limine litis, should bave been sustained and this suit dismissed, reserving to either partner the right to sue for a final settlement.
    The husband alone can not sue for the settlement of a partnership of which his wife was a member. O. P. 107; 2 La. 57; 17 An. 204. Every partner has the inherent right to sue his or her eo - partner for a partnership settlement. Where a married woman was, with the consent of her husband, a member of a copartnership, she has the right to sue her copartner for a settlement with her husband’s authorization, or, in case of his refusal, with that of the judge. 26 An. 646.
   On Motion to Dismiss.

The opinion of the court was delivered by

Miller, J.

The motion to dismiss in this case is on the ground the record of appeal is not stamped as required by Sec. 1 of Act No. 136 of 1880.

The appellant claims that under the order of the lower court the appeal was allowed in forma pauperis, dispensing him from stamping the record. We are aware of no legislation that authorizes this court to dispense with the stamping of the record as a preliminary to the hearing of the cause. The appellant refers to the dispensation from costs accorded by courts of equity to the poor litigant and insists our courts can observe the same rule. But our courts are controlled by the legislation on this subject. That legislation is to provide the means to maintain the judiciary by stamps to be paid for by the litigant and affixed to all papers filed or used in the courts, including records of appeal. The State is exempted from costs on the general principle that in its own courts the sovereign pays no costs.

The city pays none in advance in criminal cases by statutory exemption, and there may be other exemptions by statute. The exemptions illustrate the rule that all litigants must observe the law requiring stamps in legal proceedings. It is claimed that the eleventh article of the Bill of Rights of the State Oonstitution declaring that the courts are open to all entitles the appellant in forma pauperis to file the record without stamps. The same Oonstitution provides for stamps to be paid by litigants as the revenue of the State for supporting the courts. If under Article 11 of the Bill of Rights the courts are to be open without costs to the class of litigants who claim privileges as poor litigants — on the same principle it might be claimed there was no authority under the Bill of Rights to exact any stamps. We think the right of all to appeal to the courts for the redress of. grievances is subject to the limitation in the Oonstitution itself, that fees shall be paid in the form of stamps. We find no warrant in the Oonstitution or in our legislation to dispense the appellant from stamping the record, and we can not supply an exception when the law-giver has made none. Constitution, Art. 145; Act No. 136 of 1880, Sec. 1, par. 45, Sec. 10, 22.

In 33d An. 226, an application was made to this court to compel the lower court to send up the record without the stamps on the ground of the poverty of the litigant. This court, without passing on the question of exemption of the litigant from costs, referred the applicant to the lower court. The case decides nothing except the application must be made primarily to the lower court. In this case that application. was made and the issue now is presented to this court, whether it can entertain this appeal on an unstamped record. In our opinion we can not, but in view of appellant’s application to the lower court, and by reason of its order, we think the appellant should be allowed an opportunity to stamp the record if he desires to submit his case for decision.

It is therefore ordered, adjudged and decreed that the appeal be dismissed at the appellant’s cost, unless within ten days he place the requisite stamps on the record of appeal.

On the Merits.

Miller, J.

The plaintiff alleging that his wife, inheriting a plantation, sold a portion to defendant and formed a partnership with him for the cultivation of the property; that in defendant’s purchas'd he assumed as part of the price one-half of certain debts of the wife, agreeing in the partnership articles that the profits of the plantation should be applied to pay these debts, and as to any residue left unpaid the defendant should be bound for his part. The plaintiff alleges that he administered his wife’s share of the partnership property, made payments out of the profits of the debts stipulated to be paid, and also advanced his own funds for those payments, as well as for other partnership debts; that defendant’s share of the profits was insufficient to pay the half of the debts he had assumed and his part of the partnership debts, and that he is indebted to the extent of plaintiff’s payment of that part of the debts for which defendant was liable. The suit is to recover that indebtedness. The defendant pleaded the prescription of one, three and five years; the exceptions were answered, denying that plaintiff administered his wife’s share of the partnership property; hence had no claims for payments made with her funds, i. e. arising from her share of the partnership property, or that plaintiff ever advanced his own funds for the partnership. The plaintiff’s wife intervened, joining the defendant in controverting the asserted liability of defendant. The judgment was for him an,d plaintiff appeals.

When the partnership was formed in 1878 the plaintiff’s wife was largely indebted, for part of which indebtedness the plantation was mortgaged. The defendant in purchasing part of the plantation agreed to pay as part of the price one-half of the wife’s indebtedness, the half being fixed at four thousand nine hundred and eight dollars. The partnership agreement proposed that all the revenues derived from the cultivation of the property should be applied to pay the wife’s indebtedness subsisting at the date the partnership was formed; that the defendant was to be bound for one-half of any amount left unpaid, and there were the usual stipulations for the equal division of partnership profits and debts. The plaintiff managed the property, attended to the cultivation, shipment of the crops, and received and applied the proceeds. The crops appear to have been meagre. The funds realized from their sale seem to have been applied in payment on the mortgage debt and expenses of the plantation, and at the close of the partnership in 1883 a large portion of the debts expected to be discharged from the crops remained unpaid. We have been unable to determine from the record the contention of plaintiff that he paid the debts of the partnership to the extent of becoming a creditor of the defendant for four thousand four hundred and thirty dollars, the amount for which judgment is claimed. The petition refers to the account annexed. We find an account of crops and payments, another headed Black’s notes, and a mass of testimony referring to disbursements for the partnership. From all these we can not ascertain how the plaintiff makes up the amount he claims nor how it is supported. The record furnishes no basis on which the pecuniary relations of the parties can be adjusted, and hence determining the legal questions, we will remand the case.

The law presumes the paraphernal property of the wife to be under the husband’s administration, and when thus administered the fruits belong to him. Civil Code, Arts. 2383, 2385, 2386.

The defendant denies that the husband so administered, and in this the wife, in her intervention, concurs with defendant. To support their contentions both rely on the fact that the plaintiff was paid for his services in managing the plantation, and it is claimed he was a mere laborer for the partnership. We think the argument of defendant on this point misconceives the fact as well as the legal relations arising out of the fact. The partnership agreement stipulated three hundred dollars per annum should be allowed for labor; that is, all the labor required. It was this three hundred dollars plaintiff was paid, or rather reserved for himself out of the partnership revenues and with which he defrayed all labor charges. The fact that he received this three hundred dollars per annum from the partnership, in which his wife was a partner, did not exclude him from administering the paraphernal interest of one-half in the partnership, or deprive him of the right jure maritia arising out of that administration. The defendant’s brief suggests the plaintiff was a laborer on the plantation before his wife acquired it, and that relation the defendant insists was not changed after the wife acquired, sold one-half the plantation to the defendant and formed the partnership. We think, on the contrary, when the wife acquired the property, and at a later period formed the partnership for its cultivation, the property first, and afterward the partnership interest in respect to it, fell by operation of law under the husband’s administration. The wife may retain the administration of the paraphernalia by appointing the husband her agent. Civil Code, Art. 2384. In this case, no such agency existed. The husband administered solely by virtue of the marital relations. The wife sued to resume the administration of her paraphernal estate, but not till 1888. It is our conclusion, therefore, the plaintiff became entitled to the share of his wife in the partnership revenues, and in the adjustment of defendant’s liability, if any, plaintiff is entitled to charge all payments of partnership debts made with, or from the wife’s share of the partnership funds. If over and above the funds derived from the partnership the husband made payments of the partnership debts during its existence or after its dissolution, he is entitled to recover one-half the amount so paid, with legal interest from the dates of such payments. If these payments should have been on account of the mortgage debt of the wife, that would not entitle the husband to any subrogation to the rights of the mortgage creditor, as there was no conventional or legal subrogation. The husband is not bound for the debt of the wife resting on her separate property, i. e. acquired by inheritance, as in this case, and hence if he paid her mortgage debt or that of the defendant, her partner, there would be no subrogation.

The plaintiff in this case is asserting, in respect to the paraphernal interest of the wife in the partnership, the right of one partner against his copartner. The same rule applies as in ordinary cases for the settlement of the partnership. It is well settled one partner can not sue the other for specific sums. The suit must be for the settlement of the partnership, which of course embraces an inquiry into the assets of the partnership; its liabilities, the profits, the credits in favor of each partner, and the charges against him. On all these elements the balance for or against the partner is ascertained, and judgment given accordingly. Story on Partnership, Secs. 217, 219 et seq; Gridley vs. Connor, 4 Rob. 445; 10 Martin, 433, passim.

It is only for the balance found due on the final settlement that the partner can sue. If either partner has paid mortgage debts which the partnership assumed, or if the share of the profits of either partner has been thus applied, there would be no subrogation in favor of either partner to the mortgage debts. The whole right of the partners are merged in the balance found due on the settlement.

The prescription of three years pleaded by defendant has no application to the demand of plaintiff. That prescription refers to accounts for goods sold, and merchants’ accounts against their principals, and generally to those business or other relations in which accounts are usually rendered. Civil Code, Art. 8588; Act of 1888, No. 7.

The prescription against the actions for moneys advanced or debts paid by one for another, or for the settlement of partnership, is ten, not three or five years. O. C., Art. 3544; 12 Rob. 148.

Reserving our opinion on the question of liability we will remand the case with instructions for the lower court by testimony or the report of experts to ascertain.

1. The amount of the payments, if any, by the plaintiff out of his own funds, i. e. not the funds of the partnership, of the debts of the partnership.

2. The amount of the debt of the partnership, if any, paid by defendant out of the funds of the partnership.

3. The amount of the partnership funds received by each partner.

4. The balance for or against each partner on the adjustment of the partnership affairs.

We assume that as to the amount of the crop proceeds and the mortgage debt of Bowland the record as it now stands affords full information, and it is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed; that the case be remanded as directed and for the purposes stated in this opinion, and that appellee pay costs.

On Application by Plaintiff for Rehearing.

As the record does not furnish the basis to adjust the controversy we will so far modify our previous opinions as to reserve for determination, when the case comes again before us, the questions of interest claimed by plaintiff and whether he is entitled to any subrogation to the mortgage rights of Bowland or the judgment rights of Black and Davis. In making this reservation we are not to be understood as acquiescing in the views of plaintiff’s counsel advanced in support of the application for rehearing, We simply reserve the questions.

It is therefore ordered, adjudged and decreed that the former opinion and decree be modified to the extent stated and the cause be remanded for the purposes stated in the original opinion and decree, and although we think all the testimony needed has been indicated, with the right of the parties to offer, besides, such testimony as they deem pertinent.

Rehearing refused.  