text:
    No. 178.
    A. and J. Troustine & Co. vs. R. A. Ware and G. M. Munn.
    1. Any neglect, or omission to observe the rules of ibis court strictly, in tbe preparation of transcripts of tbe record in tbe court below, will subject tbe clerk to the cost of repairing sucbneglect, or omission; and a mandate will be directed to him, ordering him to perform bis duty ; and, in tbe meantime, judgment on tbe appeal will be suspended.
    2. Tbe appellant is protected by tbe full certificate of the clerk where it is not shown tba he knew tbe transcript to be deficient and procured tbe certificate notwithstanding.
    APPEAL from the Second District Court, Parish of Bienville. Brew, J.

      B. H. Patterson and J. A. Borman, for Plaintiffs and Appellants. Watkins & Watkins and G. M. Bunn, for Defendant and Appellee:
   The opinion of the Court was delivered by

Watkins, J.

An examination of this very inartificial and complicated record has fully satisfied us that no opinion we could render would be satisfactory to ourselves, or do justice to the parties to the appeal.

It appears from certificates of the clerk in the record, that certain important documents are missing therefrom ; others essential to it cannot be found in it; few of those it contains are in their proper places and order; and the index'is very deficient and inaccurate.

Rule 1, paragraph 2, provides :

“ The different parts of a record should be made to appear in the order of their respective filings and entries from the minutes, with exact dates.”

Ib., paragraph 7, provides : “ An accurate alphabetical index should be attached to, and form part of each transcript, affording reference to particular pages of the same (and with proper designations, or words of description), for the pleadings, processes and orders in the suit; for the depositions and testimony of each witness by name,” etc.

Ib., paragraph 8, provides : “ Any neglect, or omission, to observe this rule strictly will subject the cleric, as aforesaid, to the cost of repairing such neglect, or omission.” Rules of Court, 36 Ann.; 32 Ann.

The clerk who prepared this transcript has been wholly unmindful of this rule'and derelict in the performance of his duty.

“ The Supreme Court, as well as other courts, possesses the powers which are necessary for the exercise of the jurisdiction given it by law, in all cases not expressly provided for by the present Code.” C. P. 877.

“ If the record be incomplete because the judge refuses to perform any of his duties, as to sign the exception to his opinion, or, if such imperfection proceed from a similar refusal by the clerk, the Supreme Court shall direct a mandate to such judge, or clerk, ordering him to perform the duty imposed upon him by law, or by the nature of his office, and, in the meantime, it shall suspend its judgment on this appeal.” C. P. 899.

In Nathaniel T. Edson vs. Morris McGraw, 37 Ann. 294, this court says: “ Where transcripts transmitted here, under certificates attesting their completeness, are materially deficient by the fault of the clerk making same, the court will not permit it then to be patched up by additional and supplemental transcripts, but will order the clerk to make, at his cost, a neiv transcript of the record below, such as he should have made at first under the rules of the law; and will eventually exercise its punitory powers, and inflict a fine.” R. S. 1907.

Again : “It is apparent that the transcript was made in utter disregard of the rules of the court, and that, far from facilitating, it embarrases an investigation of the case.”

Again : The appellant is protected by the full certificate of the clerk, when it is not shown that he knew the transcript to be deficient, and procured the certificate notwithstanding.”

That opinion is aptly suited to the facts of this case. It is therefore ordered exproprio motu that the clerk shall make, at his cost, a new, perfect and complete transcript of the record in the court below', such as he should have made at first, and in conformity to law and the rules of this court, on or before the next return day for appeals from that court; and that, in the meantime, this court will suspend judgment on the appeal.

Judgment suspended.


source: Caselaw Access Project

author: Watkins, J.

license: Public Domain

text:
    No. 180.
    P. C. Livingston vs. P. Scully.
    1. An notion for damages resulting from th©y;a&s*w;e violation of a commutative contract, or one containing mutual stipulations and. covenants between the parties, must be preceded by putting the obligor in mora, as a condition thereto.
    2. The want or failure of the plaintiff to put him in mora does not oblige defendant to except or specially deny that fact. It is the duty of tbo plaintiff to allege and prove it, else be cannot recover.
    A PPEAL from the First District Court, Parish of Caddo. Ai. Hieles, J.

      Young c& Thatcher for Plaintiff and Appellee:
    Although the contract be either not commutative, or, if commutative, the reciprocal obligations are not to be performed, at the same time, yet the party wishing to put the othor in default must be himself ready, and must offer to receive the performance at the time and place stipulated in the contract, or implied from the nature of the act to be done, etc, (J. 0. 1914, 1933.
    In a case coming under either of tlie two above articles of the Civil Codo, a demand on tbo debtor, in order to put him in delay, requires no particular form; it is sufficient if the rule be substantially complied with. 3 L. 382; 13 L. 240; 8 R. 160 ; 19 Ann. 85; 28 Ann. 778; 23 Ann. 107; 6 N. 3. 230.
    A contract, may be violated actively by doing inconsistent with the obligation it has proposed. Whore there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default in order to entitle him to his action. C. C. 1931, 1932.
    "When an obligation has been contracted on condition that an event shall happen within a limited time, the condition is considered as broken, when the time has expired without the ewnt taking place. If there be no time fixed, the condition may always be performed. and it is not considered as broken until it is become certain the event will not happen. C. C. 2038; 1. Ann. 424.
    The condition is considered as accomplished when the accomplishment of it has been prevented by the party bound to perform it. 1 Ann. 424.
    If the work be composed of detached pieces, or made at the rate of so much a measure, the parís may be delivered separately ; and that delivery shall be presumed to have taken place, if the proprietor has paid to the undertaker the price due for the parts of the work which have already been completed, 0. 0, 2761.
    Where the object ot the contract is anything but the payment of money, the damages due to the creditor for its breach are the amount of the loss he has sustained, and the profit of which he has been deprived. O. C. 1934 5 5 Ann. 221 j 2 L. 332.

      Alexander & Blanchard and J. 3. Shepherd for Defendant and Appellant :
    1. As «a condition precedent to the recovery or damages for the passive violation of a commutative contract, the obligor must be put in mora, and this putting in default must be alleged and proved. C. C. 1911, 1912, 1913; 18 L. 88; 2. R. 498; 3 R. 400; 6 R. 450; 9 R. 495; 10 R. 524; 11 Ann. 300; 17 Ann. 33; 19 Ann. 130; 23ADn.513; 27 Ann. 176; 30 Ann. 1125; 37 Ann. 659, 835.
    2. Articles 1912 and 1913 of the Civil Code specially provide that in order to recover damages for the passive violation of a commutative contract, the obligor must be put in mora as a condition precedent. Article 1911 provides the manner in which the debtor is to be put in default. All decisions concur in holding that this putting in default must be aliened and proved. 18 L. 88; 2 R. 498; 3 R. 400; 6 R. 450; 9 R. 495 ; 10 R. 524; U Ann. 300; 17 Ann. 33; 19 Ann. 130; 23 Ann. 513; 27 Ann. 176; 30 Ann. 1125; 37 Ann. 659, 835.
    3. Even though a contract be violated by one or both parties to it, if neither elect to consider it broken, and they proceed under it, neither can be considered as having been in default. 3 Ann. 285.
    4. The damage duo a party for a breach of contract in the absence of fraud or bad faith are tli© amount of the loss he has sustained and the profits of which he has been deprived.
    Damages for supposed profits based on the speculative opinion of witnesses are clearly inadmissible. All damages must be pr< ven with legal certainty. Statements of items in globo without details, when called for, are not sufficient. 11 Ann. 300; 37 Ann. 492. Evidence of that description would open too wide a door to fraud to be received as full proof. 3 Ann. 45. One may have lights which he can enforce, but these lightB may also be abandoned, waived and surrendered, by settlement without reservation, 33 Ann. 41.
    It follows where either of the parties to a contract condone a breach of the same by proceeding under the contract, after the violations of conditions by the other, he waives his right to damages for previous violations.
   Tlie opinion of the Court was delivered by

Watkins, J.

Plaintiff sues for the recovery of $5000 damages, resulting from defendant’s alleged violation of his contract; $870.62 on open account; and for the annulment of the contract.

The contract was entered into on July 1, 1882, and contains reciprocal covenants.

Plaintiff agreed to furnish all labor,’ tools, cement aud all other material to he used in the piers of said bridge,” (the railroad bridge across Red River at Shreveport), and set the same in the piers, to the full satisfaction of the engineer in charge, for the sum of $8 per cubic yard.

“ He also agrees to set cut stone facings for said piers, to be furnished at railroad bridge site, and furnish all labor, cement, tools and other materials to be used in construction of same, for $6 per cubic yard, payments of ninety per cent to be paid by said Peter Scully, on or about the 15th of each month, or as soon as received and paid by the railroad company.” The remainder was to be paid upon the completion of the work and its acceptance by the railroad company.

All the work was to be done under the supervision of the engineer, in charge, and to his full satisfaction.

It further stipulated that plaintiff should “ push the work, and give it his own personal attention, and finish said work on or about the 1st of January, 1883.

Under this contract defendant undertook “ to furnish foundations and such tools as he may have to spare, on work, free of cost,” etc.

Plaintiff alleges that Scully “made a subsequent verbal agreement with him to pay for all necessary building material contracted for, to those delivering the material, about the 15th of the month ; and also, that he would furnish and deliver to petitioners all the cement needed for building said piers at $1.25 per barrel.

He shows that he was on “ hand promptly with men and material, and the necessary arrangements to do and complete the work according to contract:” and had made some contracts for materials, such as sand, brick, etc., to be furnished; and that he was put to a heavy expense therefor, and “ did bis part Of the work in due time, and was not in default,” etc.

He represents that he did -‘extra work that was not included in his contract, and furnished money, lumber and material, etc., to Scully,” whereby he became indebted to him in the sum of $870.25, for payment of which demand has been made.

He represents “that said Scully did not have the foundations for the piers ready, so that petitioner could do his part of the work ; that owing to dissensions between said Scully and the railroad company as to who should pay for the sheet pilings, and mistake as to the amount of dredging required for the foundations, and other causes, that said Scully should have foreseen, and provided against, the work was delayed, and petitioner kept idle, and on expenses, without being able to go on with his work.”

He further alleges “ that in consequence of said Scully’s failures to do as he had promised and agreed to, petitioner found himself delayed so long, and at such heavy loss and damage that he was unwilling to suffer it longer; and, even if he had been, that the failure of Mr. Scully to. comply with Ms agreement with petitioner in reference to the brick Johnson was to furnish, and the money due, as per account, caused his debts to accumulate, and his credit to be impaired to such an extent that he found it impossible to go on writh the work.”

He shows “that he notified Mr. Scully about the 1st of January, 1883, that he (Scully) had forfeited his right to hold him bound to his contract, and that petitioner could claim damages,” which he estimates to be $5000, for profits of which ho had been deprived.

In plaintiff’s amended petition he states that Scully did not complete the foundation of pier five until September, 1882, and pier six in November, 1882, and that between those dates defendant “ could have had other foundations ready, but that he, by positive order, x>ereniptorily stopped all work on the foundations and piers, and did not permit it to be begun again until about the 1st of November following.”

He avers that he made application to Mr. Alfred Noble in September, the engineer in charge, to have the foundations of x>iers five and six got ready, so that he could go on with his work; and, afterward he made a similar axix>lication to Mr. Patton, representing the defendant, to the same effect, “ and Mr. Patton stated that he could not, and would not, do anything without orders from defendant, and that Scully’s orders were that all work be stojiped,” and that during, this time he was kept idle, and unable to comx>ly with his part of the agreement, and that his time was worth $10 per day for that time.

The defendant, for answer, admits the contract for the construction of the foundations for the piers for the railroad bridge as evidenced by the written agreement of July 1st, 1882, but denies that plaintiff has complied with its terms, and specially denies that plaintiff “ was in any manner forced, or compelled by him to abandon his contract, and quit work, but that said abandonment was the voluntary act of plaintiff, and wilfully done, in order to injure resx>ondent, and retard him in the construction of the bridge that plaintiff has thereby forfeited all rights under it, and has incurred a liability- to him in damages in the sum of $5750; and that he owes him, in addition, the sum of $1029, on open account, for which sums he claims judgment, against the plaintiff in reconvention.

Wo have thus analyzed the x>laintiff’s x>etitions, original and amended, and defendant’s answer, because it has been made an important question in this case whether the defendant was xmt in mora as a condition X>recedent to the institution of this suit.

Defendant’s counsel contend that it is a condition precedent to the recovery of damages, for the passive.violation of a commutative contract, that the obligor must be put in mora, and that this must be alleged and proved.

Plaintiff’s counsel insist that their petition sets out an active, as well as a,passive violation of the written and parol contracts, and that the defendant was put in default antecedent to the institution of this suit.

R. C. C. 1912, provides: “ The effects of being put in default are not only that, in contracts to give, the thing, which is the object of the stipulation, is at the risk of the person in default; hut in the cases hereinafter provided for, it is a prerequisite to a recovery of damages and of profits, and fruits or the rescission of the contract.”

R. C. C. 1913 provides : “In commutative contracts, when reciprocal obligations are to he performed at the same time, or the one immediately after the other, the party who ivishes to put the other in default, must, at the time and place expressed in or implied hy the agreement, offer to perform, as the contract requires, that which on his part was to he performed, otherwise the opposite party will not he legally put in default.”

R. C. C. 1931 provides: “A contract may be violated either actively, by doing something inconsistent with the obligation it has proposed, or passively, by not doing it at the time or in the manner stipulated or implied from the nature of the contract.”

R. C. C. 1932, provides: “When there is an active violation of the contract, damages are due from the moment the act of contravention ' has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.”

R. C. C. 1933, provides: “When the breach has been passive only, damages are due from the time the debtor has been put in default, in the manner directed in this chapter.”

Does the plaintiff’s petition, taken as a whole, charge the defendant with an active or upasswe violation of their commutative contract1?

Under it, the defendant bound himself to furnish the foundations for the piers, and certain tools and cement, and pay out for plaintiff’s account certain moneys. Plaintiff agreed and bound himself to furnish the material and build the piers and put stone-facings on them.

He alleges that he did his part of the work in due time and was not in default.

That Scully did not have the foundations laid in proper time, and that for various causes he “should have foreseen and provided against, . the work was delayed and petitioner kept idle, on expenses and unable to go on with his work * * and that in consequence of said Scully’s failure to do so as he had promised and agreed to, petitioner found himself delayed, etc.”

He further represents that Scully did not complete the foundation of pier five until September, 1882, and pier six until November, 1882, and that “between those dates he could have had other foundations laid, but that he, by positive order, stopped all work on the foundations and piers, and did not permit it to be begun again until about the beginning of November, following ”

These and other allegations quoted from plaintiff’s petition clearly indicate that the defendant is only charged with a passive violation of the contract in the sense of the articles of the Code above quoted, unless it be in those last quoted ; but we do not so regard them. 3 Ann. 285, McCord vs. Feliciana R. R.

In Gohet vs. Municipality, 11 Ann. 300, the Court say : “When the violation of a contract is passive, it is clear that the putting in default is a prerequisite to a recovery of damages. A violation is said to be passive by not doing what was covenanted to be done, or not doing it at the time or in the manner stipulated or implied from the nature of the contract.”

In Hodge vs. Moore, 3 R. 400, the Court say: “The putting of a debtor in default is, under our law, a condition precedent to the recovery of damages or the dissolution of a contract. The want of it need not be pleaded in defense, and can be taken advantage of at any time. 6 O. S. 229; R. C. C. 1906.

In Hepp vs. Commargre, 10 R. 524, the Court say : “This putting in delnult being under our law, an indispensable prerequisite to sustain an action of this kind, it ivas not necessary to plead the want of it specially, nor is it waived by the defense set up in the answer.'” 6 N. S. 624; 13 La. 229; 5 R. 83, Sewell vs. Wilcox.

In 6 La., 152, Stewart vs. Paulding, the Court say : “In an action by the vendor against the vendee of real estate adjudicated at public auction, the plaintiff’s request of the defendant that he would comply with the terms of the sale, and the defendants refusal to do so, is insufficient to put the latter iu'default.” 17 Ann. 32, Leeds vs. Fassman; 19 Ann. 130, Pratt vs. Craft.

In 23 Ann. 513, Dean vs. Frellsen, the Court say: “A party who brings suit for damages resulting from the non-fulfillment of an obligation on the part of the other party, must show, under the general issue, that he has complied with all.the conditions imposed upon himself by the obligation before he cam be heard to wge acts of violation by the other party as a reason for not putting him in default.” 27 Ann. 176, Eden vs. Lemandre; 30 Ann. 1125, Buard vs. Boagni.

In 37 Ann. 659, Defee vs. Covington, this Court held : “An action for damages for a passive violation of a contract, must be preceded by a putting in default of the debtor, and such a putting in mora must be alleged in order to justify the introduction of testimony on the question of damages.

“An allegation that the debtor was put in default by means of a formal demand on him for the damages claimed, does not conform with the modes provided by the Civil Code — and is not legally sufficient to admit of proof of damages.” 37 Ann. 835, Landéche vs. Sarpy.

The only averment in the petition on this important point is that he notified Mr. Scully about the 1st of January, 1883, that he, Scully, had forfeited his right to hold him bound to his contract, and that petitioner would claim damages.”

We have carefully read all the evidence in the record and have copied the subjoined extracts from the testimony of the plaintiff and defendant.

Plaintiff says: “ I failed to go on with the contract I had with Scully because he failed to pay monthly instalments as he promised.”

Again : I notified Mr. Scully that I was going to quit .the work. I was forced to do so. This was about the time I should have completed my work under my contract,” etc.

Again : “At the time I quit and notified Mr. Scully, there were no other foundations laid * * and I told him that my contract had expired.”

Again : “ I notified him that I intended to quit and claim damages.”

Again: “ Mr. Scully gave me money, but we had no settlement.”

Scully says: Mr. Livingston did no work on the bridge after the estimate of December 20, 1882. This estimate covers all the work plaintiff did on pier six.

“At the time of the last payment no damn, was made by plaintiff for any other sum due him. Plaintiff did no work after this estimate was paid him, and notified me about (he 1st of January, 1883, that he had quit work. He assigned no reason for quitting the work. He wrote me a note, but I did not keep it. In the note he said, I recollect, be stated that Ms time had expired in which he was to complete the work and that he had quit it and gone to doing something else.”

The entire evidence of these two gentlemen is to this effect.

Instead of the pleadings and evidence furnishing proof of the putting of defendant in mora, it clearly demonstrates that such is not the case, but decidedly indicates that plaintiff voluntarily abandoned his contract.

It is therefore ordered, adjudged and decreed, that the verdict of the jury and the judgment thereon based are annulled and set aside; and it is further ordered, adjudged and decreed that plaintiff’s suit be dismissed at his cost in both courts,

Judgment reversed.


author: Todd, J.

text:
    No. 174.
    The State of Louisiana vs. Isaac G. Grayson.
    Parol evidence is inadmissible to prove tlie pendency of an indictment in a court of record.A copy of tbe indictment and the minutes of the court allowing its presentment and filing would be the best evidence of the fact.
    APPEAL from the Twenty-fifth. District Court, Parish of Vermilion. DeBaillion, J.

      B. O. Smedes, District Attorney, for the State, Appellee.

      O'Bryan & White, for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant appeals from a sentence of two years’ imprisonment at hard labor for larceny.

It appears from a bill of exceptions in the record, that a witness for the prosecution was asked if there was notan indictment pending in another parish against the accused.

The question was objected to on tlie ground that oral testimony would not be the true evidence of the fact sought to be proved and that such evidence was therefore inadmissible. The objection was overruled and an affirmative answer to the question given by the witness, to which ruling tlie counsel for the accused reserved his bill.

It is certain that a copy of the indictment and of the minutes of the court showing its presentment and filing would have been the best evidence of the fact; and we know of no exception to the general and elementary rule requiring the best evidence to he produced, under which this ruling of the trial judge could be justified.

We can readily conceive that proof of so damaging a fact as the pendency of another indictment against the accused was calculated to work great prejudice against him. In criminal cases especially, where the liberty of a man is at stake, the rules touching the admissibility of evidence, should be strictly and closely adhered to. 1 Greenleaf, secs. 82, 86; Wharton Crim. Ev., 8th ed., sec. 152; 12 Ann. 349.

On account of this error we are constrained to remand the case.

It is therefore ordered, adjudged and decreed that the sentence apr pealed from be annulled and reversed, and the case remanded to be proceeded with according to law.


author: Eennicr, J.

text:
    No. 173.
    The State of Louisiana vs. Joe Tucker.
    The opinion recently rendered on a former trial of this case is reaffirmed; and it is further held that where the charges asked are applicable to the facts and contentions of counsel as recited in the hill of exceptions, the judgo is not authorized to refuse the charges because, while not denying the material facts stated, he disputes the correctness of tho contentions of counsel based thereon. .Counsel has the right to urge his own theory as to the inferences of motive and intention to he drawn from the facts, and to impress the same upon the jurj; and though the judge may take a different view, the question is to he determined by the jury, and in case the jury should concur with counsel, defendant has the clear right to have them instructed as to the law applicable in such case.
    APPEAL from tlic Third District Court, Parish of Union. _ Young, J.

      J. A. W. lumry, District Attorney, for the State, Appellee.

      Q. A. Külgove, jr., and Jas. A. Barney for Defendant "and Appellant.
   The opinion of the Court was delivered by

Eennicr, J.

The main hill of exceptions presented in this record is, in substance, identical with the one which we copied at length and fully considered in our opinion rendered when this case was before us in May last.

We there held, quoting Die syllabus: When a bill of exceptions recites the facts which the counsel contended before- the jury had been established by the evidence, and refers to the evidence in support thereof and ashs for charges applicable to the state of facts recited, the judge’s refusal to give the charges on the ground that they are inapplicable to the case, is error, unless the judge states that there was no evidence in the case supporting or tending to support the contentions of counsel. It is the duty of the judge to give full instructions to the jury covering the entire law of the case as respects all the facts proved or claimed by counsel to he proved, provided such claim is supported by any evidence.”

We will not encumber the Reports by an elaborate statement of the facts recited in the hill at great length, but will refer therefor to our former opinion.

The material facts recited are, that defendant was discovered armed, in the early part of the night, under suspicious circumstances, at" the door of Bryant’s house; that Bryant, without warning, fired upon and wounded him; that defendant retreated without returning the fire; that he was pursued by Bryant and his wife, both firing on him ; that, after retreating some thirty yards, he got behind some bee-gums in the yard, and from that shelter, Bryant and his wife still advancing and shooting, defendant fired upon them and wounded Bryant. To this extent the facts recited are not controverted by the judge. But the counsel further contended that the evidence established that defendant was retreating in good faith, trying to get away front his pursuers without injuring them; that he stopped behind the bee-gums simply to protect himself; that he made no offensive demonstratian until his pursuers were within a few steps of him; that he then shot merely because it was absolutely necessary to save his own life, and that he aimed at Bryant’s legs not in order to kill him but to stop his pursuing him and shooting at him.

Counsel for defendant, under the foregoing recital of facts and contentions, asked the following charges:

1st. A man has a right to drive a party away from his premises who is there without his authority, and if the intruder should start away immediately in good faith the owner would have no right to follow him up; and while still retreating in good faith it should become absolutely necessary for him to fell his pursuer in order to save his own life, he is justifiable.

2d. That when two parties have had a difficulty, if one of them quits the combat and retreats in good faith and is pursued by the other, who continues to follow him up with violence and hostility, and should it become absolutely necessary for the one retreating to turn and fell his pursuer in order to save his own life, he is justifiable, whether he was the aggressor in the beginning of the difficulty or not.

3d. That if the jury should find that defendant shot Mr. Bryant, but should conclude from the evidence that he shot him simply to preserve his own life while he was receding from Bryant in good faith, he would be justifiable in law; and especially is this the law if they should find that Bryant was pursuing and shooting at defendant after defendant was attempting to get away.

The judge refused to give the charges, for the following reasons:

“ There was not a particle of evidence on the trial that proved or tended to prove in the slightest degree any retreating in good faith on the part of the accused, nor was there any evidence to show that when shot by Bryant he immediately began to run away. The evidence, on the contrary, was that he retired very slowly, and also went to show that he got behind the bee-gums as a place of comparative security to fire from, and that he did not endeavor to leave the yard till after he had emptied both barrels of his gun and perhaps one pistol shot; the evidence showed that so far from quitting the combat, Joe Tucker kept it up until his gun and likely his pistol were emptied.

The evidence did not show that Bryant and his wife were in a few steps of Tucker when he shot Bryant, and there was no evidence whatever to show that Joe Tucker retreated in good faith to avoid the combat, nor did the evidence show or tend to show that he made every possible effort to get away, or indeed any effort at all to leave the premises, until his means of offense were apparently exhausted; the evi ■ dence showed that he stopped as soon as he got behind the bee-gums, from which point he fired at Bryant. So far from the evidence showing that he shot Bryant in the legs in order not to kill him, it tended strongly to show a determined effort on his part, after the shooting began, to kill Bryant.”

It will be observed that the judge does not dispute any of the principal facts set forth in the bill, viz: that defendant was fired upon and wounded without warning; that ho retreated or retired; that he was pursued with repeated firing; that he got behind the bee-gums and only then fired upon his pursuers who still advanced, and wounded Bryant. He only differs with counsel as to the speed with which defendant retired; as to the motive of his retreat; as to his intention in stopping behind the bee-gums; and the like — all of which are not facts, but mere inferences from the facts as established by the evidence. The judge may be right and the counsel entirely wrong as to the conclusions which they respectively draw from the evidence; but the determination of such questions is remitted to the jury, whose exclusive province it is to weigh and give effect to the evidence.

Given the fact that defendant retreated, defendant’s counsel had the clear right to contend that the retreat was in good faith and in an effort to escape without injuring his pursuers. Given the fact of his stopping behind the bee-gums, iie had the right to contend that such stoppage was for the purpose of protecting himself from injury. Given the facts of the continued pursuit and firing, he had the right to contend that defendant’s firing in return was to save his own life and necessary for that purpose. And in case the jury should concur with the counsel’s interpretation o'f, and inferences from, the facts, he had the clear right to have them instructed as to the law applicable thereto.

While not doubting the sincerity of the respected judge’s intention to comply with our former decision, we are reluctantly constrained to hold that he has erred in his construction of it and in refusing the charges asked for.

The remaining bills of exception have no merit whatever and do not require notice.

We may say that the judge was perfectly right in warning the jury that the opinion of this Court in the former case was not to be considered as evidence in any manner affecting the facts of the case. We have nothing to do with the facts in criminal cases. We deal with them only as hypotheses, and say, “if the jury find such and such to be ttie facts, then the law is so and so.” Bnt it is for the jury alone to ascertain, weigh and determine the facts, independent of judges of District or Supreme Courts. We say thus much to guard any future jury in this case against being misled in this matter.

It is, therefore, ordered, adjudged and decreed that the verdict and sentence herein be annulled and set aside, and that the case be remanded to be proceeded with according to law.


text:
    No. 177.
    The State of Louisiana vs. Jim Jones.
    A juror wlio, when sworn on his vow dwe, says that from what he knows of the character of the accused he has a little prejudice against him, but that this feeling can, in no manner, affect his verdict and that he will be governed solely by the law and the evidence, is not incompetent.
    Where the mortal blow is given in one parish, bnt death ensues in another, the crime may be prosecuted in either parish, and it is not essential to the validity of the indictment in such case-that said facts should be averred therein. The crime may be charged to have been committed in the parish where the bill is found.
    Where a person, after being wounded, sends for a minister and declares to him that he expects to die, lias no hope of recovery and continues to speak in this strain till his death, the condition of mind prerequisite to making a valid dying declaration, is sufficiently proved.
    PPEAL from the Second District Court, Parish of Bossier. Brew, J.

      J. A. W. Lowry and M. J. Oram, District Attorneys, for the State, Appellee. 1

      J. JS. Beynolds for Defendant and Appellant.
   The opinion of the Court was delivered by

Todd, J.

The defendant was convicted of murder, and appeals from a sentence of death imposed under the unqualified verdict of the jury.

1. He first complains of the ruling of the trial judge declaring one George Gilmer a competent juror.

This juror was sworn on his voir dire and stated, quoting: “ That from his knowledge of the previous character 'of the defendant that he had some little prejudice against the defendant, but that he could lay this aside and try the case according to the law and the evidence regardless of this prejudice and do exact justice between the State and defendant, and be governed by the law and the evidence.”

We know of no law and have been pointed to none that, under the condition of mind disclosed by the juror in the above statement-, would disqualify him as a juror. He was certainly competent; but while so holding we think it the wiser course in a judge to exclude from the jury every man who entertains even a little prejudice against an accused from a knowledge of his reputation, or other mere personal grounds.

2. A motion for a new trial was filed and was urged mainly, if not exclusively, on the ground that the mortal blow had been given in the parish of Bossier, where the trial wa< had, but the death ensued in another parish, and that these facts were not set foith in the indictment, and that it was essential they should have been so averred; and an affidavit of the judge presiding showing said facts was annexed to the motion.

Of course, it was an irregularity to seek to take advantage of such an alleged defect in the indictment and proceedings by a motion for a new trial, but inasmuch as no objection is found of record against this mode of presenting the issue, we shall consider it.

The object of setting out in an indictment the place of death, is to show the jurisdiction of the court over the offense. Under the common law, such an omission or failure might be fatal to the prosecution. Section 988 of the Revised Statutes of this State, however, provides that when a crime “ shall be begun in one parish and completed in another, it may be dealt with, inquired of, tried, determined and punished in either of the parishes in the same manner as if it had been wholly committed therein.”

Under this Statute the district court of Bossier, where the mortal blow was inflicted, was expressly clothed with jurisdiction over the offense and its prosecution; and in consideration of this fact, it was legitimate and competent to charge in the indictment found by the grand jury of that parish, that the murder was therein committed, as was done, and not required to set out in detail that the death occurred in one parish and the mortal wound was inflicted in another, since the place of death need only be averred, as before stated, for the purpose of showing the jurisdiction in the court. The substantial fact charged in the indictment was the murder, the place where the victim died was an immaterial circumstance, considered with reference to the law investing with jurisdiction over the crime the court of the place where the mortal stroke was given.

The counsel for the accused cites the case of the State vs. Cummings, ó Ann. 331, as opposed to these views. We do not so construe that decision, the facts relating to the offense and prosecution are very unsatisfactorily and obscurely set out in the opinion of the Court, but if there is anything in that case opposed to the doctrine now announced, we are not disposed to follow it. The motion for a new trial was properly overruled.

3. The counsel for the accused took a bill of exceptions to the admissibility of a statement of the murdered woman, offered and received in evidence as her dying declarations. His objection to the same was, substantially, that it was not shown with sufficient certainty that at the time of the statement the person was under an apprehension of impending dissolution. The evidence on this point, as stated by the trial judge in the bill of exceptions, is as follows:

“ The witness Williams stated to the court that the deceased sent for him, a minister of the gospel, to come and pray for her, and when he reached her bed-side she told him she sent for him to pray for her, that she did not expect to live and wanted the prayers of herself and the church, and that he and some of the members of the church prayed for her; that ho watched her and was with her until her death * * * that at no time did she express any hope of life, but all the time said she would not get well and that she felt and expected she would die. ***** Both physicians testified there was no hope for her recovery.”

This evidence shows, we think, that the woman fully believed that she would die, and that the statement was made under a full sense of approaching dissolution. All authorities concur that, under similar expressions touching the expectation and belief of death, the statement must be regarded as a dying declaration.

The ground for the admission of such a declaration as evidence, is that in the expectation of approaching death, all temptation to falsehood either from interest, hope or fear will be renounced; and the awful nature of the situation will impress the declarant as strongly with the necessity of telling the truth as the solemn obligation of an oath. We must infer from the evidence that such was the situation of this party, and her mental condition when her declaration was made. She not only, declared once that she had no hope of living, but according to the evidence, continued to do so until death came. Even if there be but one declaration of the kind, it matters not that several days may elapse, as in this case, before the person dies. Whart. Crim. Ev., 8th ed., Secs. 281, 283.

This completes the view of the proceedings in the case as the record presents them, and we can find nothing therein to relieve the uniortunate accused from the impending sentence.

Judgment affirmed.


author: Fenner, J.

text:
    No. 186.
    The State of Louisiana vs. Hal Matthews.
    The rule that the jury is bound to accept and apply the law as laid down by the judge, and that it cannot disregard it without violating its oath and duty is reaffirmed; and it is not error to refuse a charge “that it* the jury cannot conscientiously believe that the judge has charged the law correctly, they do not violate their oath in disregarding it.” Such a principle would utterly emasculate and annul the rule.
    It is not essential that the violence inflicted by the defendant should have been the sole cause of the death¡ but if it hastened the termination of life, or really contributed, me* diately.or immediately, to the death in a degree sufficient to be a clear contributing cause, that is sufficient
    APPEAL from the First District Court, Parish of Caddo. Hieles, J.

      M. 8. Oram, District Attorney, for the State, Appellee.

      J. W. Jones, for Defendant and Appellant.
   The opinion of the Court was delivered by

Fenner, J.

Charges of error are based on five bills of exception.

Bill No. 1 is taken to the refusal of the judge to instruct the clerk to embody in the transcript the form of the oath administered to the jury. The refusal was utterly inconsequent, because the bill of exception, signed by the judge, contains the oath in full, and it is the same which we have heretofore sanctioned as legal. State vs. Johnson, 37 Ann. 421; State vs. Logan, id. 778; State vs. Vinson, id. 792.

Bill No. 2 arraigns the refusal of the judge to charge that, “the jury is a co-oi-dinate branch of the court and your oath as jurors obligates the jury to find a verdict according to the law and the evidence of the case.”

The judge did not question the correctness of the proposition, but refused because his written charge fully covered the point. The reason is good, as we find that the written charge had fully expounded the duty of the jury with reference to the law and the facts as laid down by this Court.

Bill No 3 excepts to the charge of the judge on the subject of the function of the jury with reference to the law and their duty to accept and apply the law as laid down by the court. The charge is couched in the very language of this Court in State vs. Vinson, 37 Ann. 792 and embraces every essential element.

Bill No. 4 is taken to the refusal of the following charge: “If the jury cannot conscientiously believe that the court has charged the law correctly, they do not violate their oath in disregarding it.”

This Court has repeatedly held that, the jury is bound to accept and apply the law as laid down by the judge, and that, while it has the power to disregard it, yet in so doing, it would violate its oath and duty. State vs. Vinson, 37 Ann. 792; State vs. Ford, id. 465; State vs. Johnson, 30 Ann. 905; State vs. Scott, 12 Ann. 386; State vs. Ballerio, 11 Ann. 81.

The charge invoked by counsel would utterly emasculate and annul the. rule thus repeatedly laid down, and the judge a quo rightly refused it.

The 5th aud last bill challenges the- judge’s refusal to give the following-charge: “Proof that the violence inflicted by the defendant was the cause of the death of the deceased is necessary and the evidence must connect the death with the special blow charged.”

The court had already charged that, before convicting “the jury must be satisfied that defendant caused the death of deceased, either wholly or in part. If Carey had been already mortally wounded, yet if defendant struck him with a bottle and thereby inflicted a wound which hastened the termination of his life, it was a sufficient killing by defendant.”

This charge is a correct exposition of the law, aud defendant’s counsel is quite in error in his contention that it applies - only to cases of conspiracy and concurrent injuries inflicted by several persons. On the contrary, it applies to other contributing causes of death of whatever nature. Thus Lord líale says: “If a man receives a wound not in itself mortal, but, either from want or neglect of helpful application, it turns to a gangrene or a fever, and that gangrene or fever be the immediate cause of death, yet this is murder or manslaughter in him that gave the wound.” 1 Hale, P. C. 428; see also State vs. Scott; 12 Ann. 274; 3 Greenleaf Ev. sec. 139.

And Mr. Bishop summarizes the doctrine thus: “Whenever a blow is inflicted under circumstances to render the party inflicting it criminally responsible if death follows, he will be deemed guilty of the homicide, though the person beaten would have died of other causes, or would not have died from this one had not others operated with it; provided, the blow really contributed mediately or immediately to the death in a degree sufficient for the law’s notice.” Aud again : <rIf the person would have died from some other cause already operating, yet if the wound hastened the termination of life, this is enough, as for example, if he had been already mortally wounded by another.” 2 Bishop Cr. L., secs. 637, 638.

In a certain sense, every man is born and lives, mortally wounded; that is, subject to laws which inevitably doom him to death. No murder does more than to hasten the termination of life.

We conclude, therefore, that the judge has correctly expounded the law, and that the charge asked was too broad, inasmuch as, without explanation, it might have conveyed the erroneous idea that it was essential that the blow should have been the sole canse of the death.

Judgment affirmed.


text:
    No. 188.
    The State of Louisiana vs. May Ford.
    1. The essential elements of forgery to be charged against the accused and proved are three:—
    1st. A writing, in such form as to be apparently of some legal efficacy.
    2d. An evil intent, of tho sort deemed fraudulent, in the mind of the defendant.
    3d. A false making of such writing.
    2. A jury ought to infer an intent to defraud the person who would have to pay the instrument, if it were genuine, although from the manner of executing the forgery, or from that person's ordinary caution, it would not be likely to impose upon bim.
    3. A clerical erior in wilting a name in an indictment cannot be invoked -a$ vitiating tho* proceeding. 32 Ann. 782: 35 Aim. 293.
    APPEAL from the First- District Court., Parish of Caddo. Hicks, J.

      M. S. Grain, District Attorney, for the State, Appellee.

      S. P. Watts and M. G. Elstmer for Defendant and Appellant.
   The opinion of the Court was delivered by

Watkins, J.

The accused appeals from a conviction for forgery and asks a reversal of judgment and sentence on the ground that “ the State did not prove on the trial that McKellar was indebted to Frier-son, or that Frierson was a creditor of McKellar.”

The indictment sets out that the name of S. J. Frierson was forged to an order for $85 in money, which the accused wilfully, falsely and fraudulently forged, counterfeited, uttered, published, aud put off as genuine; and which was presented to R. N. McKellar— on whom said order was drawn — for payment, with intent to cheat and defraud said McKellar, said May Ford well knowing said ordei to be false, fraudulent and forged at time of presentation.

It appears that after the trial judge had delivered an oral charge to the jury the prisoner’s counsel requested him to give them the following special charges, viz:

1st. That the jury must be satisfied from the evidence that R. N. McKellar would have paid the said order had it been genuine, before they could the defendant.

2d. That the jury must be satisfied from the evidence that the defendant forged the name of S. J. Frierson as charged in the bill, and not the name of J". 8.J. Frierson, before they could convict the defendant.

I.

These special charges the trial judge declined to give for reasons assigned in the bill of exceptions reserved by accused, viz: “ The'first charge was refused because the court had charged the jury that if the order was a forgery, it was sufficient if it had am adaptiou to accomplish a fraud.”

Mr. Bishop says: The essential elements of forgery, to be charged against the defendant and proved, are three:—

1st. A writing, in such form as to be apparently of some legal efficacy.

2d. An evil intent, of the sort deemed fraudulent, in the mind of the defendant.

3d. A false making of such writing. Crim. Proc. sec. 400; 2 Crim. Law, sec. 523.

“A jury ought to infer an intent to defraud the person who would have to pay the instrument if it were genuine, although from the manner of executing the forgery, or from that person’s ordinary caution, it would not be likely to impose on him, and although the object was general, to defraud whoever might take the instrument, and the intention of defrauding, in particular, the person who would have to pay the instrument, if genuine, did not enter into the prisoner’s contemplalion.” Russell and Ryan’s British Crown Cases, vol. 1, p. 291, Rex vs. Mary Mazorka; 19 Ann. 396.

(Tf there be, at any time, a bare possibility of fraud, it is enough to constitute the offense.” Whar. Crim. Law, p. 338; Archbold’s Crim. Plead. 346; 35 Ann. 1042, State vs. Ferguson.

The ruling of the court on this point was correct.

II.

The judge further assigns that the second charge was “refused because the order had been read to the jury without objection, and the jury were then the sole judges whether it proved the allegations of the indictment, as to alleged or supposed drawer or not.

If there was a variance in the name of the supposed drawer as alleged in the indictment, and that in the order, objection should have been taken when offered in evidence, and the court would have decided whether there was a variance.

“And because the court had charged that the jui'y must be satisfied beyond all reasonable doubt that the defendant committed the crime of forgery of the order as set out in the pleadings.”

In 35 Ann. 293, State vs. Morgan, this Court say: “A clerical error in writing a name in an indictment cannot be invoked as violating the proceeding.

32 Ann. 782, State vs. Given: “A question of variance between the allegation, and the proof is to be submitted, under proper instructions from the court, to the jury; unless the variance is palpable; in which case it is not.

“An allegation that a banknote is payabte to “A bearer,” is supported by proof of a note payable to “A or bearer.”

We think the instructions given by the trial judge to the jury, were sufficient, as also the reasons he assigns for refusing the charge requested.

III.

In this Court defendant’s counsel assigns error apparent on the face' of the record, that “the minutes of the court do not show that the defendant was present in court when the verdict of the jury was rendered. T. p. 10.

The minutes referred to as not affirmatively showing the presence of the accused in open court at the time when the jury delivered their verdict in open court is as follows, viz:

“Shreveport, La., Friday, September 24, 1886.

“Court met pursuant to adjournment, Ins Honor, A. W. 0. Hicks, judge, presiding.

“ Minutes of yesterday read and approved in open court.

“STATE OF LOUISIANA versus MAY FORD.

1 £ )

Forgery and Uttering.

“Case called for trial. The defendant, May Ford, in open court, having been duly arraigned and pleaded thereto not guilty. Now comes the district attorney who prosecutes on behalf of the State of Louisiana, and the prisoner at the bar in his own proper person represented by P. S. Watts and M. C. Elstnor, Esqrs., who announced themselves ready for trial. Whereupon came the following named jurors drawn from the regular panel, to-wit: * * * making in all twelve good and lawful men of the parish of .Caddo, duly empanelled and sworn who, after heaving the evidence, argument of counsel and charge of the court, retired to consider of their verdict, and on returning iuto open court do, upon their oaths, say : ‘ We, the jury, find the prisoner guilty.’ LOUIS LEVY, Foreman.”

All of these proceedings were had upon one and the same day, and without any adjournment of the court. The prisoner was present in open court when the trial commenced and must have been at the close when the verdict was rendered.

Tile repetition of that recital in the minutes would have been, under the circumstances detailed, unnecessary. Had there been an adjourn - ment of the court after the jury retired, or liad the verdict been rendered upon a subsequent day, chat recital in the minutes would have been necessary and its omission fatal.

Judgment affirmed.


author: Bermudez, C. J.

text:
    No. 9761.
    George L. Bright vs. Adam Thompson et al.
    Where the amount in dispute is really under tlie lower limit of the jurisdiction of this Court, though in the averments and prayer it be greater, the claim will be considered as fictitious and the appeal dismissed.
    APPEAL from the Civil District Court for the Parish of Orleans. Tissot, J.

      Geo. L. Bright and JS. L. Bdwards for Plaintiff and Appellant.

      T. Gibnore <& Sons for Defendants and Appellees.
   The opinion of the Court was delivered by

Bermudez, C. J.

The plaintiff complains that a line.of posts erected along Margaret Place and Camp street are a nuisance which ought to be abated; that they will injure to the extent of $2500 his property, which is some three squares from the Place;” that he has so far sustained $200 damages, and is entitled to recover $300 for attorney’s fees, for the prosecution of this suit.

From a judgment in favor of defendants this appeal is taken.

We have considered the evidence adduced below, and have failed to find any testimony or proof supporting the complaint and the damages claimed.

When on the stand, the plaintiff himself does not undertake to verify his allegations, and when asked about the damages, answers: “ It is hard to fix the damages of a thing of that kind,” and he proves none.

Ear from showing that any injury has been inflicted on the petitioner, or any one else, of will be caused to any person or thing, the proof in the record is to the effect, that the posts complained of are an ornament, in every way beneficial to the public.

We even notice an ordinance of the city on the subject, which declares, “ that for the purpose of adding to the usefulness of Margaret Place, as well as enhancing its beauty, and enlarging its area, for the recreation and pleasure of its visitors,” the portion of the ground on which the posts have been erected was declared part and parcel of said Margaret Park, and dedicated by the city for that purpose.

A long line of precedents is to the effect that, where the matter in dispute is really under the lower limit of the jurisdiction of the appellate court, although on the averments and prayer it be greater, the claim must be considered as fictitious and conferring no jurisdiction, and the appeal must be dismissed.

Following that well established and conservative rule, we have no other alternative left than to apply it to the present litigation.

It is therefore ordered that the appeal in this case be dismissed at appellant’s costs.


author: PochiJ, J.

text:
    No. 9688.
    Mrs. Kate S. Kent and Husband vs. Brown & Learned.
    In testing the validity of sales for taxes, the courts of this State are guided by the same rules which prevail in judicial sales.
    A monition which relates to informalities in the decrees under whioh judicial sales are made, and to irregular and defective proceedings connected with the sales, will cure the same defects which are reached and set at rest by the prescription of five years under the provisions of Art. 3543, Civil Code, and both remedies may he invoked to cure informalities in the assessment and in the sale for taxes.
    In an assessment not absolutely void, a monition will cure a defect in the description of the property, in listing the same on the resident instead of non-resident rolls, an omission to extend State and parish taxes on separate assessment rolls, and other errors not necessarily fatal to the assessment.
    A complaint that the taxes for whioh property was sold are excessive, comes too late after the sale is completed; it may be a good ground for an injunction but not for a suit in nullity.
    A judgment rendered by a court of competent jurisdiction imparts absolute verity, an.d has the force of tbe thing adjudged until set aside in a direct action of nullity; it cannot bo attacked collaterally.
    APPEAL from the Ninth District Court, Parish of Concordia. Young, J.

      JDagg é Mason and Montgomery & Ransdell for Plaintiffs and Appellants :
    The tax title pleaded by defendants is void for the following reasons:
    1st, There was no sufficient description of the property. B. S. §§ 3266, 3272; Act 42 of 1871, sec, 32; Bur. 330-1; Blk on Tax Titles, pp. 136,137 (a) 148; 13 L. 210; 6 Ann. 542; 8 Ann. 19 ; 9 Ann. 540 ; 32 Ann. 235; 33 Ann. 556,1164; 37 Ann. 61.
    2d. The rolls were not signed and sworn to by the tax collectors and board of assessors, as required hy law. B. S. §§ 3274, 3273; Acts 1871, No. 42, sec. 39, Blackwell, 122-3-4-9, 281; Burroughs. 274, 296 ; 9 Neb. 397; 6 Neb. 236; 33 Ann. 1165-6.
    3d. The assessment in 1867 was in name of Geo. 1?. Sanderson instead of estate of G. IT, Sanderson. See 33 Ann. 526; 35 Ann. 1086; Blackwell, pp. 150, 280.
    4th. Tbe property was placed on,resident, when it should have been placed on non-resident roll. B. S. § 3251; Acts 1870. No. 23, §§ 19-32; Acts 1871, No. 42, § 18; Cooley, 277; Blk. 159-60; 34 Ann. 126.
    5th. No parish taxes were extended on assessment rolls as required hy Acts 1870, § 44.
    Nor were there any separate rolls as required hy Act 42, sec. 43, of 1871; 34 Ann. 126. 6th. The parish taxes for the years 1870,1871 and 1872 were illegal, being in excess of the State tax. 34 Ann. 126, and authorities there cited.
    7th. The tax title shows that the property was sold to pay ta^es which the assessment rolls and the delinquent lists, as recorded in the mortgage hooks, did not show to be due. 8th. A portion of the taxes for which the property was sold appear to have been paid. 9th. Lands sold at tax sale, under Act 47 of 1873, should not have been divided into lots.
    The judgment is void for the following reasons:
    1st. The Carroll court was without jurisdiction to appoint Mrs. Sanderson tutrix, as she, at the time, was a resident of New Orleans, C. O. 307, 335; C, P. 944, 948-9-50 ; 2 Ann. 71. The nullity appears on the face of the proceedings. 32 Ann. 891; see also Cooley’s Con. Lim. 503 (407); 11 How. 437.
    2d. If legally appointed, Mrs. S, had forfeited her tutorship by marrying again without provoking a family meeting. O. C. 254; 3 M. 346 ; 5 Ann. 596; 32 Ann. 51.
    3d. The co-tutor was not a party to the judgment.
    4th. The Carroll court was without jurisdiction ratione personce to render judgment. The consent of the tutor does not give the court jurisdiction over the minor. C. P. 91.
    5th. The judgment was hy confession. The attorney who gave the confession was without authority from the tutrix, 29 Ann. 600; 6 Ann. 115; 3 L. 203; 7 Ann. 440. The tutrix herself could not have given the confession. 15 Ann. 226; 31 Ann, 389; 32 Ann. 906. 6th. The interests of the tutrix and her ward were in conflict. The latter should have been represented by an under tutor. C. C. 275; 2L. 142; 11 B. 120; 21 Ann. 712; 23 Ann. 617.

      Percy Roberts, Hiram. R. Steele and J. N. Luce for Defendants and Warrantors.

      Miller <& Fmney, Conner & Conner and W. T. Martin for the Citizens’ Bank, one of the Warrantors:
    The judgment of a court of competent jurisdiction appointing a tutrix cannot be attacked collaterally. Irregularities in the constitution of a family meeting cannot he.urged collaterally against the appointment of a tutrix made by decree oí a competent court in pursuance of authority conferred by a family meeting. 36 Ann. 831; 35 Ann. 592; 32 Ann. 955, 398, et passwi.

    Where there is no administrator appointed, a tutor has the right to stand in court in a suit brought to enforce a debt against the succession. 36 Ann. 744; 35 Ann. 296, 591, 826, et passim.

    A tax title based upon a proper assessment conveys a valid title. 37 Ann. 357; 35 Ann. 894; 32 Ann. 707; 31 Ann 662.
    If a tax title can be set aside at all. the owner thus dispossessed will be entitled to be maintained in all the rights he may have against the succession of the owner of the property. 32 Ann. 295, 296; 31 Ann. 839.
   Tlie opinion of the Court was delivered by

PochiJ, J.

Plaintiff, as the sole heir of her deceased father, G. F. Sanderson, claims ownership of the “Panola” plantation, in the parish of Concordia, which was the property of her father at the time of his death, in 1863, and which is alleged to he now in the possession in bad faith of the defendants, as owners thereof.

The defendants claim title to the property by right of purchase from W. A. Peale for three-fifths, and from the Citizens’ Bank, and Mrs. Georgia Miller Smith for one-fifth each, and they call their vendors in warranty.

The warrantors, defending the title of their vendees, claim to derive their former ownership from a tax sale of the property made in December, 1873.

In amended pleadings the defendants set up a judgment which they hold by transfer from W. A. Peale, against the succession of G. F. Sanderson in the sum of $38,628.01, with interest of 8 per cent per annum from January 1, 1867, until paid, subject to a credit of $15,000 of that date, for which they claim judgment in reeonvention against plaintiff, as the sole heir of her father, whose succession she has accepted.

Alleging their possession in good faith, they also claim reimbursement of the sum of $9722 on account of taxes on the property paid by them, and for valuable improvements placed thereon by them, during their possession thereof, in case of eviction.

On trial plaintiff assailed the tax sale as a nullity by reason of numerous illegalities and irregularities, both in the assessment and in the sale for taxes, and she also urged the nullity of the judgment against her father’s succession on innumerable grounds to be hereinafter consideied.

After plaintiff had developed her attack of the tax sale as a nullity, the defendants and warrantors pleaded the exception of res adjudieata in bar thereof, resting on a judgment rendered by the district court of Concordia on-the 24th of November, 1874, confirming and homologating said tax sale, in conformity with monition proceedings which had been previously instituted and' published, according to law, by the purchaser at said tax sale.

The district judge declared the sale to be null, but recognizing the validity and binding force of the judgment pleaded in reconvention by the defendants, which he considered to be in excess of the real cash value of the property in suit, he refused to adjudicate the nullity which he declared to have been established by the law and the evidence of the case, and he rendered judgment in favor of the defendants rejecting plaintiff’s demand for the ownership of the property.

.Plaintiff has appealed, and defendants pray for an amendment looking to a formal recognition of their title.

The grounds'of nullity alleged against the tax sale are as. follows :

1st. That the assessments for the years 1867 to 1872 inclusively, for which years’ taxes the property was sold, is invalid, because the assessment rolls for those years are nbt properly signed, sworn to or filed.

2d. That the assessment for 1867 is invalid because the property for that year is assessed to George P. Sanderson, and not to his succession.

3d. That the description of the property in 1867 as Panola ” is insufficient.

4th. That the property is assessed for all of the above years on the resident portion of the rolls.

5th. That all the taxes, State and parish, are not extended on the assessment rolls.

6th. That during the years 1871 and 1872 State and parish taxes are not extended on separate assessment rolls.

7th. That the tax for general parish purposes is in excess of four mills for the years 1869, 1870, 1871 and 1872.

8th. That the taxes for which the property was sold, according to the tax deed, do not correspond in amount with the taxes as shown by the assessment rolls, delinquent lists and recorded delinquent lists.

9tlr. That proper notices of the sale were not given.

I.

In support of the first ground of nullity, plaintiff introduced in evidence, over defendants’ objection, certain assessment rolls which liad been found in the recorder’s office, several of which are open to.the objections contained in that ground.

Defendants’ counsel then introduced in evidence certificates from the Auditor’s office, showing the existence in that office of assessment rolls for the same years, which were in form, and they offered testimony to show that the rolls relied on by plaintiff were not those on which the tax collectors had acted, and that the correct rolls, which were triplicates of those found in the Auditor’s office, were missing from the recorder’s office of Concordia. From the preponderance of the evidence, and in consideration of the legal presumption that the officer had done his duty, we conclude that defendants’ contention is correct; and that the genuine rolls originally left in possession of the recorder, if produced, would have agreed in their tenor, signature and recitals with the triplicate copies now on file, as returned in each consecutive year, in the Auditor’s office.

This presumption is more than confirmed by our knowledge of the conscientious ability of the attorney’s, Mayo and Spencer, who, as counsel for the Citizens’ Bank, Peale and Miller, warrantors herein, and at that time judgment creditors of the succession of Sanderson, conducted all the proceedings which resulted in the tax sale now under consideration. We must decline to accept the theory which rests on the supposition that these attorneys would have risked the funds of their clients, amounting to $5,564 56, the amount of their bid at the sale, on the faith of proceedings which lacked the foundation prescribed by law.

II.

The main question presented by the second ground of nullity involves the existence of any information in the records of Concordia touching the death of Sanderson, when the assessor made the rolls for the year 1867.

We gather from the record that his domicile was in the parish of Carroll, several hundred miles above the parish seat of Concordia, and that he died in the State of Georgia in the year.1863, his own wife being unable to give the precise date or month when his death occurred, and that his succession was opened only m the year 1866, in Carroll.

We must take judicial cognizance of the state of war in which the country was then engaged, of the closing of the courts during several years, of the difficulty, and at times, of the impossibility of communicating between the parishes of Concordia and Carroll, and from the record it appears that no positive information could be had from the records of Concordia of the whereabouts of Geo. F. Sanderson, or of the fact as to whether he was dead or alive. From the only sources of knowledge within the reach of the assessor, he had no -alternative but to list the property in the name of that owner, to whom it had been assessed, and who had paid the taxes thereon for years past. Those circumstances, .which are entitled to great weight, entirely remove this question irom the rule or scope of the two decisions mainly relied on by plaintiff’s counsel.

In Stafford’s case, 33 Ann. 520, it was in proof that when the assessor listed the property in the name of “L. A. Stafford,” he had been officially informed of his death by the very persons to whom he had sent notices of assessment as the agents of L. A. Stafford.

In Hickman’s case, 35 Ann. 1086, the record showed that the property had never been assessed in the true owner’s name, Mrs. Marie Emma Blanchard, from the time she had acquired it in 1860, to the time when it was sold for taxes in 1872, as the property of Mrs. E. A. Blanchard.

The correct solution of that point is confirmed by the case of Congreve et al. vs. City of New Orleans, 33 Ann. 816, in which it was contended that the assessment of property to the “Estate of Mrs. R. Jennings,” when it should have been assessed to her heirs, who had been'put in possession of the property as such, was a fatal error. The Court held that, as there was no proof of such transfer in the records of the parish where the property was situated, there was no irregularity in the assessment. See also, 28 Ann. 240, City of New Orleans vs. Ferguson.

Ill, Y, YI, VIII.

The discussion of the errors charged in the objections numbered 3, 5, 6 and 8, can be properly considered and disposed of under one subdivision of the subject.

In our opinion, these few grounds present questions of relative nullities, and not matters of substance or radical defects.

Hence, we conclude that these errors, if shown to exist, would be covered by the prescription of five years, and that they have been corrected by the judgment of the court on the monition applied for by the purchasers at the tax sale.

Under our discussion of the first two grounds of nullity, urged by plaintiff, and in our disposition hereinafter of the seventh ground, we think that the conclusion is justifiable that the assessment is not radically defective.

Now, the record shows that the property in suit has been designated and known as the “Panola” plantation, in the parish of Concordia, for more than forty years; hence, it follows that the description, although defective under the requirements of the law, was sufficient in fact to inform any and all parties in interest of the nature and locality of the property thus listed on the assessment rolls, especially as this defect occurs in only one year.

The same considerations are amply sufficient to dispose of the objections that the State and parish taxes were not extended on the assessment rolls, and that the same for the years 1871 and 1872 are not extended on separate assessment rolls, and further, that the taxes, as shown by the assessment rolls, do not correspond with the taxes as stated in the tax deed.

These several errors amount, at most, to clerical omissions and neglects of prescribed calculations, but surely they cannot be held as fatal to the whole assessment or to the sale made thereunder.

Our jurisprudence has crystalized the rule that the validity of tax titles is to be tested under the same principals as judicial sales. 30 Ann. 1235, Jurey & Grillis vs. Allison et al.; 37 Ann. 419, Giddens vs. Mobley; 38 Ann.—, Barrow et al. vs. Wilson et al., not yet reported.

Now, it has been frequently held that defective descriptions of property, and other errors of form or of proceeding, otherwise fatal to a judicial sale, are cured by the prescription of five years. (C. C., art. 3543.)

In the case of Holt vs. Board, etc., 33 Ann. 673, it was decided that the failure to serve on the defendant notice of a judgment by default rendered against him, was an informality, grievous though it was, whieh had been cured by the prescription of five years.

In the case of Walling’s Heirs vs. Morefield, 33 Ann. 1175, the same disposition was made of an informality growing out of a description held to be insufficient for vagueness. See also Fraser vs. Zyliez, 29 Ann. 535; Pasiance vs. Powell, 21 Ann. 584; Chambers vs. Wortham, 7 Ann. 113.

Now, the avowed object of the legislation wliich created the remedy of monition was to cure at once, and without the lapse of time required by the term of prescription provided for in Article 3543 of the Civil Code, the same informalities or defects which have always disappeared under that plea of prescription.

Its real mission and legal effect are thus described in the case of City Bank vs. Walden, 1 Ann. 46: “ The monition act of 1334, under which the present proceedings are instituted, was passed for the protection of bona fide purchasers at judicial sales from litigation concerning matters of form, a non-observance of which by public officers frequently exposed purchasers to unreasonable and vexatious suits. The difficulty of administering and preserving proofs of the observance of formalities rendered cases of this kind, in the hands of the unscrupulous, the instruments of great annoyance and expense to those who had purchased and paid for property exposed for sale tinder the authority of our courts. This law relates to informalities in the decrees under which judicial sales are made, and to irregular and defective proceedings connected with the sales.” Dodeman vs. Barrow, 10 Ann. 193; Willis vs. Nicholson, 24 Ann. 545.

Hence, we feel justified in holding as we do in this case, that defects of form and of proceeding in the assessment, which in tax sales stands in lieu of judgment and citation, are cured by a monition taken in accordance with law and confirmed by a judgment of a competent court.

Were it otherwise, and if such informalities could not be reached by monition, it would be difficult to conceive the object contemplated by the law-maker in adopting that legislation, or what mischief he intended to remedy by means of that enactment.

IV.

We think that the error of the assessor in listing the property in controversy on the resident, instead of the non-resident portion of the rolls, is likewise cured by the monition and the judgment confirmatory thereof.

On this point plaintiff places great reliance on Cooley, Burroughs and Blackwell, and their respective works on taxation, in which the doctrine is announced that the duty of listing lands on separate rolls as seated or unseated, resident or non-resident, is imperative, and that the omission of the same is a radical defect.

An inspection of the adjudications on which the doctrine rests, shows that the statutes therein construed made the distinction in the assessment rolls between seated and unseated lands, and resident and nonresident lists, with the object of fastening personal liability on the owners, in default of which the tax is lost, as there is no lien on the land itself. But that question does not present a similar importance under the tax laws of this State. Under our system, the tax is secured, not by the personal liability of the owner, as much’ as by the lien on the taxable property itself, and the legal object in requiring separate-rolls of resident and non-resident owners is to facilitate search by the owners in the tax rolls, and to regulate the mode of proceeding in tax sales in cases of non-residents; but the omission of the duty in this particular does not affect the validity of the assessment if otherwise sufficient in matter of substance. Cooley on Taxation, p. 277; Blackwell, p. 137; Burroughs, p. 208, et seq.

In the ease of Rougelot vs. Quick, 34 Ann. 124, we held that a defect in this particular contributed with other informalities to the nullity of the assessment, but in that case we had no monition to deal with, and our opinion is authority to the extent only that a non-compliance with the legal requirements as to resident and non-resident rolls, in the absence of monition or of the idea of prescription, will vitiate the assessment and the sale made thereunder. In our examination of the present case, we took the pains of re-examining the record .in Rougelot’s case, and we find that the only defense was a general denial followed by a demand for reimbursement of taxes paid and improvements made on the property by the defendant in the suit, purchaser at the tax sale.

VII.

The complaint that the tax for General parish purposes for the years 1869, 1870, 1871 and 1872 was in excess of the limit of parochial taxation, is met by the defendants by the contention that it comes too late after the sale.

The same point was presented and discussed in the case of Shannon vs. Lane and husb., 33 Ann. 490, in which this Court said:

“We think, however, the defendant has let go by the utite iempus within which she might have successfully urged defenses against these excessive taxes and she cannot now set it up against this plaintiff.” The point made in that case was that the complaint of excessive tax would have been good as a ground of injunction against a proposed sale, but that it could not avail as a means of assailing the sale after it had been completed.

The contention derives strength from reason and logic as well as from law and jurisprudence.

■ Proceedings for the assessment and collection of taxes are placed on the same footing as matters involving their validity as judicial proceedings. It is elementary that a judicial sale could not be set aside on the ground that the execution was for a larger amount than was actually due by the defendant. It is now settled that a writ of seizure and sale cannot be enjoined in toto, on the ground of an excessive demand; the injmiction is restricted to the amount alleged to be in excess of the debt due by the defendant.

We note that a similar complaint was favorably entertained in Rougelot’s case hereinabove referred to, but as stated, the point of its being too late was not made by the defendant in that case, in which the issue was simply a general denial.

IX.

The objection of the alleged want of notices of sale is not pressed on appeal, and is, therefore, considered as abandoned. It is at all events answered by the tax-deed itself, which' contains the recital, uncontradicted by any evidence, that all the notices required by law were given, and which includes fees paid to the curator appointed to represent the non-resident tax debtor.

A very thorough and a very prolonged and laborious consideration of all the points of attack levelled by plaintiff at the tax sale in this case has satisfied us that they are unavailing and the sale must bo sustained.

We therefore conclude that W. A. Peale, Mrs. Georgia Miller Smith and the Citizens’ Bank in their respective proportions acquired a just and legal title to the ‘-Panola” plantation at the tax sale made thereof, on the sixth of December, 1873, and that such was the title acquired from them by the defendants. Brown and Learned, on the twenty first of September, 1880, through the authentic act of sale of that date.

We thus reach the same judgment which was rendered below, but fortunately by an entirely different route, and through the very reverse of the reasons of the trial judge.

By the same process, however, we have reached the same conclusions followed by the district judge on the question of defendants’ re-conventional demand, which involves the validity of the judgment obtained by Henderson and Peale against the succession of George E. Sanderson on the ninth of October, 1867.

In their eagerness to obtain a judicial declaration of its nullity, plaintiffs’ counsel have surrounded that judgment with a dense cloud of blunders and errors. But in directing their multifarious attacks against the judgment, they seemed to have lost sight of the relative positions of the parties under the pleadings in this case, and that their present resistance of that judgment does not place their client in the legal attitude of a plaintiff in action of nullity. Hence their present attack must be restricted to absolute alleged nullities resulting from radical defects, omissions and irregularities apparent on the face of the record.

When sifted through that criterion, which is elementary in jurisprudence, the discussion of this attack is of necessity restricted to one or two points only.

Plaintiff alleges want of jurisdiction in the court of Carroll parish in the matter of the appointment of her mother as her tutrix, for the main reason that her mother was at that time a resident of the city of New Orleans, and had then abandoned her former domicile in the parish of Carroll.

But in her petition for the tutorship, she alleges her residence in the parish of Carroll. To this, however, the plaintiff herein, her daughter, and the tutrix herself both deny the authority of the counsel who appeared as her attorney in that petition as well as in all other proceedings in that court connected with the succession of George E. Sander-son, and with the judgment herein set up in reconvention.

That counsel was Edward Sparrow, the father of Mrs. Kate Sander-son, now Mrs. Foster, and the grandfather of the plaintiff. The record shows that in his day Gen’l Sparrow was one of the lights of the Louisiana bar, and an advocate whom honesty and delicacy of purpose were only equaled by the enviable reputation which he enjoyed throughout his whole career.

Were the record barren of evidence touching his professional authority to represent his daughter in the judicial proceedings now' under consideration, we would hesitate to believe the charge of his officious intrusion in a court of justice without warrant or authority from the party whom he sought or pretended to represent. Mason vs. Steward, 6 Ann. 736.

But the evidence in the record is overwhelming in favor of the proposition that in all these proceedings he was the employed counsel of Widow Sanderson, and that in addition he was empowered to represent her completely and absolutely in all legal and other business and matters by a general and special power of attorney, -which was of record in the parish of Carroll.

It follows, therefore, that, the judicial declarations made by him for his client are binding on the latter, and that Mrs. Foster is thus estopped from denying her residence in Carroll parish at the time that she was appointed and qualified as natural tutrix of her then minor daughter, the plaintiff herein. She would be estopped by the very oath which she took, and which is contained in the record, in order to be qualified as tutrix.

These considerations lead to the double conclusion that the District Court of Carroll parish was the proper and the only tribunal for the purpose of the tutorship, and the only tribunal in which the suit of Henderson & Peale against the succession of G. F. Sanderson could be legally brought; and also that the appearance in that suit of Mrs. Sanderson, through her counsel, as the legal representative of the succession, cured all the alleged defects of citation in the premises, now alleged by plaintiff.

Under this showing, it appears that the judgment in question was rendered by a court of competent jurisdiction ratíone materm et persona!, after issue joined, and it follows as a legal corollary that, until set aside in a direct action in nullity, it imparts absolute verity and has all the force and effect of the tiling adjudged

That proposition finds unqualified support in an unbroken line of decisions of this Court, and its effect is to absolutely shut the door against the innumerable irregularities -which plaintiff’s counsel have marshalled in their collateral attack of the validity of the judgment.

“ No principle of law has received greater and more frequent sanction, or is more deeply imbedded in our jurisprudence, than that which forbids a collateral attack on a judgment or order of a competent tribunal not void on its face ab initio." State ex rel. Mestayer vs. Judge, 36 Ann. 831; Stackhouse vs. Zuntz, 36 Ann. 533; Duson vs. Dupre, 32 Ann. 896, and authorities therein cited.

Another contention made by plaintiff must he noted in this case: it is the alleged want of evidence of the ownership of the judgment by W. A. Peale, who claimed in his sale to defendants to hold the same under a transfer from Henderson and Peale. That objection does not lie in the mouth of the judgment debtor. We are referred to no adverse claim set up in the premises by either member of that firm, or by their legal representatives or other assigns; and the defendants, claiming under them, have a proper standing in court until they are met by objections from parties claiming better rights than theirs. Bothick vs. Greves, 34 Ann. 907; Citizens’ Bank vs. Moreau, 37 Ann. 857.

Understanding that in his decree the district judge maintained the defendants’ title on the exclusive ground of the validity of the Henderson & Peale judgment, we reach the conclusion that although his reasons were had, his decree was correct.

The judgment appealed from is therefore affirmed at the costs of plaintiff and appellant in both courts.

Mr. Justice Todd concurs in the decree.