text:
    No. 7754.
    State ex rel. Isidore Newman vs. Judge Sixth District Court.
    The signature of the judge of the lower court, to a deoree in which he grants a mandamus and perpetuates an injunction, affixed before the expiration of the three day» allowed by law for a new trial, is premature; and he may on his own motion, any time before the lapse of those three days, order a new trial,
    The decree of a court granting a mandamus Is a final judgment, but it does not become final on its rendition.
    A PPLICATION for writs of mandamus and prohibition.
    Kennard, Home & Prentiss, Cotton & Levy for relator.

      James McConnell for respondent.

      George S. Lacey, amicus curiae.

    Kennard, Howe & Prentiss, Cotton & Levy, for relator, contended r
    At this writing, February 2,1880, the learhed judge of the lower court • has made no answer. We are therefore entitled to judgment without further discussion. State ex rel. Marin vs. Judge Fifth District Court, C. P. 843 ; 28 A. N. E.
    I. Under article 90 of the constitution of 1879, the former rule in regard to this court having only appellate jurisdiction has been done' away with, and this court has now the same supervisory control of inferior judges and jurisdictions as is exercised by the higher courts of England and the other States. This control may be ex- • ercised by “ * * - * prohibition, mandamus * * and other remedial writs.” High on Extraordinary Remedies, section 781; 20 N. Y. 531; 7 Ala. 459 ; 4 Ala. 569 ; 34 Ala. 466 ; 46 Ala. 384 ; 18 Mich. 247 ; 19 L. 178.

      II. In his action in the premises, Juclge Rightor exceeded his legitimate powers, quoad the particular matters complained of. The cause of mandamus before him was a summary one, and is so declared to be by the Code of Practice, Art. 786. According to this article it is to be tried and granted without going through the forms and delays of the ordinary action of article 146. By article 841, a simple order to show cause is to be granted. By article 843, if the answer to the rule is found insufficient, then a peremptory mandate shall issue, and if it be not obeyed an order of arrest and an imprisonment foilow.
    In such a case the judgment becomes final the moment it is rendered, and hence no new trial can be allowed. C. P. 786, 830 ; 18 A. 113.
    III. After a judgment granting a mandamus has been signed, it cannot be re-opened to admit an intervenor. C. P. 391 ; 6 L. 690 ; 4 A. 544 and 212 ; 19 A. 118.
    James McConnell, contra, contended :
    First — That the signing of a decree granting an injunction and a mandamus before the lapse of the three days after its rendition does not make the decree final, and hence that the judge might at any time within those three days grant a new trial, and permit the filing of an intervention. 5 A. 402; C. P. 547 ; 10 L. 209 ; 8 L. 80 ; C. PI 546 ; 30 A. 63 ; 24 A. 132 ; 20 A. 168 ; 5 N. S. 244 ; 4 A. 564 ; 6 A. 252 ; 5 A. 402 ; 26 A. 119 ; 23 A. 483.
    Second — A mandamus case must be tried on the merits, on petition and answer, or return, such averments of the latter as are not disproved being taken as true. 5 A. 294; 15 A. 73 ; 31 A. 205.
    Third — That this court will not, in a proceeding by mandamus and pro- . hibition, inquire whether the order setting aside the judgment was proper or not; that there is now no judgment of the district court in the case, and that this court will not by mandamus assume to control or direct the district court in regard to any orders or judgments heretofore rendered, or hereafter to be rendered, but will only examine.into the correctness of such orders or judgments on appeal, and will not assume, in the exercise of its supervisory jurisdiction over said court, to control its action upon any matters within its jurisdiction. C. P. 845 ; State vs. Judge, 12 M. 488 ; State ex rel. Turpin vs. Judge, 13 A. 481; State ex rel. Simmons vs Judge, 13 A. 485.
   The opinion of the court was delivered by

White, J.

The relator, representing himself to be the holder and owner of warrants drawn against the general fund, amounting to two hundred and seventeen thousand dollars, filed a petition asking writs of mandamus and injunction against the Treasurer and Auditor; of mandamus against the Auditor, to compel him to place to the credit of the general fund the sum of two hundred and sixteen thousand dollars, and against the Treasurer, commanding him to pay therefrom the warrants of the relator, with privilege over all other persons; of injunction against the' Treasurer, enjoining him from paying any portion of the sum to be transferred to the general fund to any other person than the relator. The prayer was for, after due proceedings, the issuance of the mandamus and the perpetuation of the injunction. The averments upon which the right to relief was founded were that the warrants of relator had been presented for payment and had been refused on account of want of funds, when, in consequence of article 3 of the constitutional-debt ordinance, there was in the treasury the sum of two hundred and sixteen thousand dollars applicable to the payment of the general expenses of the government, and therefore belonging to the general fund, against which the warrants of the relator were drawn. A rule nisi and preliminary injunction issued on the 19th January, the rule having been made returnable on the 22d, and on the 23d a decree was rendered making the alternative rule absolute and perpetuating the injunction. On the same day the court ex officio granted a new trial, and allowed the filing of an intervention, the issue now before us being a prayer for writs of prohibition and mandamus ; of mandamus to compel the vacating of the order granting the new trial, and of prohibition to prevent the trial of the intervenor. Divesting the case of all unnecessary issues, the simple question is, was the signature of the judgment premature; and if so, until the expiration of the three days allowed 'by law for a new trial, had the judge the legal right, after signature and before the lapsing of three days, of his own motion, to order a new trial ? ¥e say divesting the case of irrelevant issues, because we are clearly not now called upon to express any opinion as to the correctness of the judgment obtained by the relator, and because if the power existed to grant the new trial it is wholly immaterial what reason operated to bring about the exercise of the power. That a judgment signed before the expiration of the three days allowed for the application for a new trial is for the purposes of the new trial, and until the three days have run, in legal intendment not signed at all, is no longer an open question. Gardere vs. Murray, 5 N. S. 244 ; McWillie vs. Perkins, 20 A. 168. It is equally well settled that where a ease is open for a .new trial the 'court may order to that end o'f its own motion. O. P. 547.

These elementary propositions we take as not disputed in the brief of counsel, which seeks to avoid the consequence to result from their application by contending that the judgment on the mandamus being ■summary did not require the three days to make it definitive, and therefore it became final on its rendition. Conceding the correctness of the proposition for the purposes of the case only, the judgment below not only issued the mandamus, but it likewise perpetuated the injunction ; in which last respect it was clearly a definitive judgment, as to which the delays for a new trial were undoubtedly requisite.

There was one judgment, not two; and the correction of error in any portion rendered a new trial necessary as to the judgment in its entirety. Whipple vs. Hertzberger, 11 A. 475. But we do not concede-that a judgment on a mandamus is such a decree as to become final on its rendition. That it is a final judgment has been determined. 24 A. 133. The mere fact that the proceeding is summary does not make the-judgment in which the proceedings culminated a summary docket. In the absence of positive provision of law, we would be without authority for treating a final judgment rendered in a mandamus proceeding differently from other final judgments.

The rules are discharged, and tKe writs refused at the cost of relator.


source: Caselaw Access Project

author: Manning, C. J.

license: Public Domain

text:
    No. 6296.
    Woods, Slayback & Co. vs. John Rocchi.
    "Where a party buys certain merchandise through the agency of a broker, 'who falsely represents the price to be less than the vendor agreed to sell for, and before the delivery of the -whole of the merchandise, a notice of the real price is brought home to the buyer, he wiil be held to have ratified the contract made by the broker if he received the balance of the merchandise -without repudiating the contract.
    In a contract of sale the vendee cannot profit by a negligence of the vendor when he himself is guilty of an equal negligence.
    A seller who gives a clear statement of the terms of the sale to the broker of the buyer, is not responsible for the latter’s ignorance of those terms, arising out of the fault of the broker in not promptly delivering the statement to the buyer.
    A broker is the agent of him who employs him originally, and only becomes the agent of the-other party when the bargain between the principals is definitely settled.
    APPEAL from the Fourth District Court, parish of Orleans. J. lAjncliy

      Kennard, Howe & Prentiss for plaintiffs and appellants,

      J. Ad. Rozier for defendant and appellee.
    Kennard, Howe & Prentiss, for plaintiffs and appellants, contended :
    First — That one notified that a contract has been made for him, subject to his ratification, by another pretending to have authority, will be presumed to have ratified, unless he repudiate it immediately. Hennen’s Digest, page 838, No. 11; 11 L. 288 ; 2 Bob. 1; 6 Eob. 284;, 12 A. 159. ’

      Second — That in the absence of any Code of Commerce, we follow the law merchant, 4 A. 206; 6 A. 781; 2 R. 124; Hennen’s Digest, volume 1, page 795.
    So that the rule laid down in Story on Agency, section 31, being the law merchant, is law here. He says that the broker is “ primarily the agent of him who employs him originally, and he becomes the agent of the other party only when the bargain or contract is definitively settled as to its terms between the. 'principals.”
    Third — That the loss must fall on Rocchi, who by his action or inaction helped to cause it, and-by first employing Schexnailder as his broker, put it in the power of Schexnailder to do what he did. Walker vs. Cassaway, 4 A. 19 ; Bell vs. Keefe, 13 A. 524, 525; Lieu-teaud vs. Jeaunaud, 20 A. 327 ; Caldwell vs. Neil, 21 A. 342.
    Fourth' — The blame of the misunderstanding in this case must fall on the defendant, because the doubt and obscurity arose from the want of necessary explanations which he ought to have given. See C. C. 1958.
    Fifth — Let us drop, for the sake of argument, all endeavor to find out which of the parties was to blame. Let us say, that the broker alone was at fault. Let us say, what cannot be denied, that plaintiffs agreed to sell at 13-f, and that defendant agreed to buy at 13. What is the result?
    Let it be remembered that it is proved that the lard charged for in the bill was all delivered to defendant, has been shipped away and cannot be returned, and that 13f was a low price on that day, and lard kept advancing until it was delivered.
    The true solution in such a case is, that the plaintiffs are entitled to recover, under the prayer for general relief, and, the testimony of value ofered ancl received without objection, the market valúe of 13J. Can defendant equitably object to this ? Does he wish to get our goods . at less than their market value ?
    “ Parties are bound by testimony even on a point not presented by the pleadings, if not opposed, and all objections will be considered waived.” 6 N. S. 86 ; 1 La. 301; 18 La. 321; 9 A. 254; Hennen’s Digest, vol. 1, p. 493, (c.) No.'8.
    “ Where plaintiff sues on a contract for wages, evidence of their value as on a quantxm, meruit, if received without objection, will be considered.” Coon vs. Brashear, 7 La. 269.
    The rule has even been extended to a case where the unopposed oral testimony revealed the fact that there was written testimony not produced or called for. 5 A. 183 ; 20 A. 70 and 379 ; 15 A. 389 ; 17 A. 37; 12 A. 125 ; Benjamin on Sales, 2d ed. p. 69 ; 6 L. 40 ; 4 A. 39; 5 A. 549.

      J. Ad. Rozior, for defendant and appellee, contended :
    First — The plaintiffs appear, from their evidence and conduct in this transaction, to have been very neglectful in several respects. Had they followed the usual course of business, they would have required a bought and sold note. Story on Agency, \ 28, p. 25. Instead of this, they contented themselves with a simple memorandum, signed alone by the broker. It was incumbent on them to have required a bought note, and that should have been one signed by Roccki, and they should have furnished the latter with a sold note, for then the door would have been closed to any dispute as to the price. Not having complied with the usages in that respect referred to by the witnesses, or with the rule of law just quoted, the plaintiffs have nobody to blame but themselves, especially in the heavy transaction which is now engaging our attention.
    A broker has only a special authority, not a general one ; and if you employ the broker to buy one kind of goods and he buys another, you are not bound. Addis on Contracts, vol. 2, p. 108. Principal not bound by the contract of a broker exceeding his authority. Hil-liard Cont. vol. 7 112, p. 581.
    The broker or intermediary is he who is employed to negotiate a matter between two parties, and who for that reason is considered as the mandatary of both. C. C. 8017.
    Second — The law, foreseeing that misunderstandings will often arise as to the terms and conditions of sales, in emphatic terms (departing from the rule laid down in the title Obligations) has provided, “ that the seller is bound to explain himself dearly respecting the extent of his obligations.” C. C. 2374. “ Any obscure or ambiguous clause is construed against him,” continues the article.
    All reticence becomes suspicious. The interpretation includes, specially, all that relates to the price. See Grenier, Discours au Tribunal, 6 March, 1804, one of the legislators who framed the Code Napoleon. This doctrine, matter of legislation, is fully commented on by Merlin Rep. t. 17, v. Vente, § 10; Pothier Obligations, No. 234; Troplong, Vente, No. 256; Duranton, 1.16, No. 185, and all referred to in the Digest Code Civil, Annoté, by Lahaye and others, at verbo Vente, page 719 — being a commentary on the identical article of the Code Napoleon, 1602. Same doctrine in the Roman laws, as adopted in France and in Louisiana. Our own reports contain repetitions of this sound rule. See 4 R. 315 ; 5 Rob. 75 ; 10 R. 5 ; 2 A. 135 ; 3 A. 192 ; 4 A. 109, etc.
   The opinion of the court was delivered by

Manning, C. J.

This suit is for $2,479 80 and interest, balance of account for one thousand tierces of lard at thirteen and three quarters cents per pound. The answer is a general denial.

The dispute as to liability is primarily due to the bad practice and tortuous conduct of the broker who made the purchase. It is certain, that the plaintiffs sold at the price above mentioned, and it is equally certain that Bocchi supposed he was buying at thirteen cents. Schex-nailder was the broker. Early in January 1875 he proposed to Bocchi to buy this large quantity of lard at thirteen cents. Bocchi called to Hamburg for instructions, and received them Jan. 6th, and accepted the .broker’s offer. The negotiation was closed, and the following note of purchase received by the plaintiffs ; — •

“ New Orleans January 22, 1875.
“Messes. Woods, Slaybaoe & Co., 71 Poydras St.
Gentlemen — I have this day closed to John Bocchi Esq. of this city for your account one thousand tierces prime steam lard to be immediately shipped from St. Louis at thirteen and three quarters cents per lb. delivered here.
“Mr. John Bocchi binds himself to pay cash upon delivery of said lard.
“ Bespectfully yours,
“E. SGHEXNAXLDEB,
“ per Thiedden.”

No copy of this or duplicate was sent to Bocchi, nor did the plaintiffs know who was the purchaser until the 22d.

The lard commenced arriving February 8th, when over 500 tierces were delivered. The bill for it, charged at 13f cents, was delivered to the broker January 30th, but it does not appear to have been handed by him to Bocchi until February 14th. The delivery of the rest of the lard was made on the 20th, and before that day Bocchi had made payments amounting to $39,900 00. He then paid $3,106 14 which would be the balance due if the price of the lard was thirteen cents.

The testimony leaves no doubt on our minds of the good faith of' both plaintiffs and defendant in the beginning of the transaction, but Bocchi had received the plaintiffs’ bill, in which the price charged was 13| cents, as early as February 14th, and on Woods applying to him for a payment on the 16th, he turned to his desk and took out the bill, saying he observed that 13| cents was charged for the lard, and that he had bought at 13. Woods replied it was rather late to make such a claim. More than four hundred tierces of the lard were yet to be delivered, and Bocchi should then have declined to take them at the price charged if he did not intend to pay it. The plaintiffs never abated their price. Whatever might have been Bocchi’s contract with the broker, he had then the evidence that the broker had deceived him, and that the plaintiffs demanded the price at which they had sold, and held him bound for it. Lard had advanced. Woods says he could have sold the undelivered lard at a higher rate. If Rocchi had then and there refused to take the residue of -the lard, or declared distinctly that he claimed it all at the price stipulated between him and the broker, he might be possibly in a different attitude. From the conversation of the 10th, as detailed by both parties, Woods had the right to believe that Rocchi accepted the bill then in his hands as a correct account of the purchase. The witnesses say, Schexnailder was a purchasing broker. He acted for Rocchi, who calls him on the stand his broker. He certainly was not employed by the plaintiffs. A broker is primarily the agent of him who employs him originally, and he becomes the agent of the other party only when the bargain is definitively settled as to its terms between the principals. Story’s Agency 431. The contract, as actually made by the broker on behalf of Rocchi, was brought to his knowledge in ample time for him to have prevented the delivery of nearly half .the goods bought. He did not repudiate the contract made for him by his agent or his pretended agent, and in law he is presumed to have ratified it. Potts v. Shubert, 11 La. 286. Bonneau v. Poydras, 2 Rob. 1. Guim-billot v.'Abat, 6 Rob. 284.

The defendant’s counsel insists that the plaintiffs’ negligence has caused the difficulty. They should have required a “ bought and sold note,” but instead, contented themselves with a simple memorandum. The so-called memorandum was a formal notification of the sale, the price, and the purchaser. It has already been copied in. this Opinion. The usage here is shown not to be uniform in this respect. A produce broker testifies that this is one of the forms used here. Conceding that the plaintiffs should have required a bought note at the outset, it was equally the duty of the defendant to have required a. sold note, and as he was equally negligent with the others, he can take nothing on that score.

The counsel also insists that the seller is bound to explain himself clearly respecting the extent of his obligations, and any obscure or ambiguous clause is construed against him. Yery true, and how could the plaintiffs have explained themselves more unambiguously than they did when they rendered a bill, before any portion of the goods were delivered, in which was set forth clearly the price charged. If the broker did not deliver that bill at once, it was not the fault of the plaintiffs, but it was delivered as we have seen, and the reticence of the defendant, and his failure at the subsequent conversation to repudiate the contract or claim its performance at his price, is construed against him.

We said at the outset that both parties were in good faith in their several negotiations with the broker. Concede that this good faith eon-tinued, and the broker was alone to blame. Rocchi received a large part oi the goods alter he knew there was a mistake, and sent them abroad so they cannot be reclaimed, and have been consumed by use. If he should not pay the price stipulated by the broker, he should at least pay a fair price — a price equal to the value of the goods. The prbof is abundant that when both lots of lard were delivered, the article had advanced and the market'value of this quality was higher than the price claimed by the plaintiffs. Both law and equity are against the defendant. Therefore

It is ordered and decreed that the judgment of the lower court is avoided and reversed, and it is now decreed that the plaintiffs have and recover of the defendant John Rocchi the sum of two thousand four hundred and seventy-nine dollars and eighty cents. with five per cent, per annum interest thereon from February 20,1875 and costs of both ■courts.

Rehearing refused.


author: White, J.

text:
    No. 6964.
    J. J. Fouché vs. Stewart Bros. & Co.
    "Delivery is a matter of law to "be deduced from an established state of facts. Held that under the facts herein delivery was not shown.
    APPEAL from the Sixth District Court, parish of Orleans. Mghtor, J.

      Ogden & Buckner and O. N. Ogden for plaintiff and appellee.

      Thos. Gilmore & Sons for defendants and appellants.
   The opinion of the court was delivered by

White, J.

The plaintiff sequestered nineteen bales of cotton, which he alleged had been stolen from him and shipped from Sestos Landing, on the Yazoo, consigned to Stewart Bros., a commercial firm in this city ; he prayed to be recognized as the owner. The petition having been excepted to for its vagueness, a supplemental petition was filed, which averred that the cotton had been raised on a plantation belonging to the plaintiff, and which he had leased to J. W. McDonald; that the price of the lease was twenty bales of cotton, and that the nineteen bales in question were a part of the rent-cotton, they having been actually delivered to plaintiff, and after delivery clandestinely removed and shipped by J. W. McDonald, in the name of his brother, D. EL McDonald, for account of W. B. Shearin. The petition contained an averment that under the laws of Mississippi petitioner had a lien ; the prayer was, however, for recognition as owner. To this petition J. W. McDonald was made a party defendant. The petition was excepted to, because it changed the issue from one of ownership to a claim of privilege, and because McDonald was improperly made defendant. The court below correctly overruled it; the mere averment of the lien was controlled by the prayer. If McDonald was improperly joined, it could not have worked the dismissal of the action as to those regularly before the court Stewart Bros. & Co. answered declaring that at the time of the sequestration they were in possession of the cotton under a bill of lading showing it to have been shipped to them by D. EL McDonald, for acoount of W. B. Shearin, for whom they held it. Shearin intervened and claimed the cotton, averring that it was transferred to him by D. EL McDonald, in payment of a pre-existing and valid debt. J. W. McDonald, through a curator ad hoc, claimed the cotton as his.

Before passing on the effect of the shipment, we must necessarily examine the facts, as the position of the plaintiff is that the bill was a mere device, leaving the property yet in the hands of McDonald. The proof undoubtedly is that J. W. McDonald was the lessee of the plaintiff’s Sestos plantation in the year 1876, and the cotton was shipped from the landing of that place on the 29th of November, 1876, by a bill which recited that it was shipped by D. EL McDonald to Stewart Bros. & Co., for account of W. B. Shearin. Shearin, the intervener, supports his case by the following testimony : That he acquired from J. J. Campbell, in the early part of 1876, a note of D. H. McDonald, for six hundred dollars, and that he was the holder of a note of $110 26, drawn by J. W. McDonald, and indorsed by D. EL McDonald ; that when the note was acquired by him he was informed that D. EL McDonald was a sub-lessee'Of his brother J. W., and had agreed to ship from his crop cotton to cover the note; that the shipment was made under this agreement, and by his directions. Campbell, from whom he acquired, confirms his testimony, and swears that the consideration of the note was the purchase price of the mules and agricultural implements sold by him to D. H. McDonald, in January, 1876 ; that when the sale was made it was agreed that from the proceeds of his crop as sub-tenant he would ship ' sufficient cotton to cover it, and when the transfer was made to Shearin the like agreement was made. Both J. W. and D. EC. McDonald confirm this statement, and they both swear that the cotton in question was the property of D. EL, raised by him as sub-tenant, and shipped by him in consequence of the above-recited agreement. Neither the plaintiff nor his book-keeper have, we think, in any satisfactory way rebutted this testimony; the fact that when the lease was made J. W. stated that D. EL McDonald was a minor does not preclude his having been a subtenant. We give no great weight to the testimony of the two laborers. Their statement that the cotton was raised by J. W. McDonald and his tenants is not inconsistent with D. H. McDonald’s sub-tenancy; their declaration that he worked in the field is not inconsistent with his 'own testimony, and ought not to outweigh the testimony showing him to have been a sub-tenant, supported as it is by the deed of trust made- and put upon the public record at a time not suspicious. The delivery-which is claimed has not been proven. True, the plaintiff says this-cotton was delivered to him, but delivery is a matter of law, to be inferred from an established state of facts. Taking his testimony and that of the book-keeper, we conclude that the facts are as follows :

The day before this cotton was shipped, J. W. McDonald called at the office of the plaintiff, and told him he had the rent-cotton nearly ready, and he was told to ship it the next day. It is clear that this conversation was in no sense of the word a delivery of the cotton, either symbolical or otherwise. It is said that as there was no other cotton on the place, the cotton seized must have been referred to. Granting the-fact, we do not think it would constitute delivery. Taking this view of the proof, after a careful review of all the testimony, we are clear the case is with the intervenor; the cotton was never delivered to or in possession of the plaintiff, but was shipped in Mississippi for account of the intervenor, and was held by his agents under the bill of lading when the sequestration was levied. The landlord’s lien under such circumstances would not be paramount, even under the laws of Mississippi, which have been offered in evidence.

The judgment is reversed, and judgment be and the same is hereby rendered in favor of the intervenor, recognizing him as owner of the-nineteen bales of cotton. The costs of both courts to be borne by the-plaintiff.

Rehearing refused.


text:
    No. 7698.
    State ex rel. Martin Kramer vs. the Judge of the Parish Court of St. Tammany.
    The jurisdiction of this court, under the constitution of 1879, to revise by writ of certiorari, the proceedings of inferior courts, does not include an unappealable case, where the sole-ground of complaint is that the evidence, upon which the judgment was rendered, was* insufficient to justify it.
    PPLICATION for a writ of certiorari.
    Julien A. Seghers for relator :
    First — The Supreme Court, except in cases hereinafter provided, shall have appellate jurisdiction only. * * * (Constitution of 1879,. art. 81.)

      The Supreme Court shall have control and general supervision over ■ all inferior courts. They shall have power to issue writs of cer-tiorari, prohibition, mandamus, quo warranto, and other remedial writs. (Constitution of 1879, art. 90.)
    Second — The writ of certiorari can only be granted where the suit is to be or has been decided in the last resort, and where there lies no appeal.

    'The party applying for it must state the causes of nullity of the acts done by the lower court to his prejudice, in a cause where there lies no appeal.

    If the case be decided without evidence, (or on insufficient evidence?) it is a cause of nullity of the judgment. See 6 N. S. 381, Stewart vs. Barrow. O. P. 855, 856, 857, 8, 9, 60, 61, 64, 66.
    'Third — It is the duty of the undertutor to act for the minor whenever the interest of the minor is in opposition to the interest of the tutor. C. C. art. 275.
    Fourth — The tutor cannot borrow for the minor, purchase for him im-movables, or compromise respecting his rights, without an authority from the judge, granted on the advice of a family meeting. C. C. art. 353.
    Fifth — A tutrix has no right to create a debt against her minor child without the authority of the judge and the advice of a family meeting. "Woodbridge vs. Pope, 22 A. 296 ; 16 A. 88; 15 A. 148.
    Sixth — At common law, the writ is used for the purpose of revision, and is extended to all cases where palpable injustice has been done, and that even where the inferior court was acting in matters resting within its discretion. 1 Miss. 112 ; 1 Wend. N. Y. 288 ; 8 id. 47 ; 2d. Mass. 173, 489 ; 3d. id. 188, 229.
    Respondent made no appearance.
   The opinion of the court was delivered by

Manning, C. J.

This is the first application to this court for the ex■ercise of the supervisory power over the inferior tribunals conferred by art. 90 of the new Constitution.

A suit was instituted in the parish court of St. Tammany against "the widow Degalle, as tutrix of her minor daughter Louise, upon a note for one hundred dollars signed by her as tutrix, and judgment was rendered against her in that capacity last November. Shortly there•after execution issued, and a lot of ground in Mandeville, the property of the minor, was seized to satisfy the judgment. The relator is the minor’s undertutor, and prays that a writ of certiorari issue to the parish judge, to the end that a certified copy of the proceedings had before him in that suit be sent up to this court in order that their validity may be inquired into.

We had occasion in State ex rel. Seale v. Recorder, 30 An. 450, to notice the origin of this writ, and to exhibit the purposes it was first designed to accomplish, and to shew how certain articles of our Code of Practice were framed expressly to permit its use in unappealable eases. The writ has never been used in this State, except to complete the record in a civil cause, because of the restricted jurisdiction of this court. That restriction is now removed.

The relator alleges, as grounds of his right to the writ, that no evidence was before the inferior court that the tutrix had ever been authorized judicially or by a family meeting to execute the note or contract the debt on behalf of her pupil, and that the judgment is null so far as it may affect the minor or her property ; and that it is a judgment in the last resort, since no appeal lies from it to any higher court.

The only evidence before the parish court was the note.

It is thus evident that the object of the writ, invoked in this case, is to revise the action of the lower court in rendering a judgment on what is alleged to be insufficient evidence. This is peculiarly the province of an appeal. But the relator is debarred from that remedy because the case is unappealable, and hence he claims to come within the intendment of the law which provides this writ. This mandate is only granted in cases where the suit is to be decided in the last resort, and where there lies no appeal, by means of which proceedings absolutely void might be set aside, as where an inferior judge has refused to hear the party or his witnesses,or lias pronounced sentence without having cited them. Code Pract. art. 857.

We regard these two specified instances in which the writ may be invoked as only examples, by way of illustration, of what it may accomplish. The use of the writ is not confined to those cases, but we desire to more very cautiously in defining the objects which it may be made to subserve, and we shall content ourselves with saying that the relator is not entitled to it in the present case.

To hold otherwise would enlarge the jurisdiction of this court so as to embrace every conceivable suit before every court, and nullify practically the article of the constitution which defines our jurisdiction. The grant to this court of supervisory^ powers over the inferior tribunals is very broad, but we do not think it was intended to include an unap-pealable ease, where the sole ground of complaint is that the evidence, upon which the judgment was rendered, was insufficient to justify it.

The writ is refused at the costs of the relator.

Rehearing refused.


author: DeBlanc, J.

text:
    No. 7715.
    L. P. Caillouet et al. vs. Henry Franklin.
    Tlie failure to record any abstract or other document attesting the amount of the appraisement of a minor’s property prior to the 1st of January, 1870, will extinguish any tacit mortgage ho may have had on the property of his tutor.
    An action against the clerk of a court for damages, on account of his neglect to file with the recorder of mortgages an abstract of the inventory of a minor’s property, showing the value of that property, is prescribed in one year.
    APPEAL from the Fifteenth Judicial District Court, parish of La-fourche. Beattie, J.

      John S. Billiu for plaintiffs and appellants.

      Moore & Badeaux for defendant and appellee.
    John S. Billiu, for plaintiffs and appellants, contended:
    The special obligation imposed by the acts of 1869 upon the clerk of the court was to furnish to the recorder the necessary abstracts from his office to maintain and perpetuate the mortgage in favor of the plaintiffs. His neglect to do so was a palpable breach of that obligation which was specially imposed on him by law, and gave rise to damages ex contractu.

    We can readily conceive that & neglect by an officer in the general discharge of his duties is a breach which would give rise to damages ex delicto, and under the authority cited become prescriptible by one year; but, on the other hand, we make the distinction, that his obligations under the act of 1869 being ex contractu, and his breach thereof flowing from the violation of a special obligation, the same is not covered by the prescription of one year. 26 A. 677.
    Moore & Badeaux, contra, contended :
    Article 8536 O. C. provides that the actions resulting from offenses or quasi-offenses are prescribed by one year. A quasi-offense is defined to be an act which causes injury to another, but' which proceeds only from error, neglect, imprudence, or want of skill. O. C. 2316; Edwards vs. Turner, 6 R. 382; Gardner vs. Succession of Scherer, 31 A. 527. The character of the complaint against Franklin falls entirely within this definition, and hence is prescribed. 31 A. 527 ; 16 A. 354.
    As to the presumption of offenses or quasi-offenses, the law makes no difference between those committed by private individuals and those committed by public officers. 6 N. S. 470, and 665 and 691; 14 A. 390 ; 15 A. 418 ; 31 A. 560.
    If defendant is made to pay the amount of the judgment, he is entitled to a subrogation thereto, and if the latter is prescribed, and if by no fault of defendant it no longer exists, there is nothing to subro-gate, and plaintiffs cannot recover, if the plea of prescription is interposed. Emmerling vs. Graham, lá A. 390 (389).
    Franklin stands in the light of a surety, and is discharged “when he loses his right of subrogation.” Police Jury vs. Brookshier, 31 A. 736.
    Such judgment is susceptible of execution (Capdevielle vs. Erwin, 13 A. 286; Tanneret vs. Edwards, 18 A. 606); and is, in the strictest sense of the law, such a “judgment” as will preempt by a failure to “ revive.” This judgment was rendered well-nigh twenty years previous to the institution of the present suit, and, it is admitted, was never "revived.” 0. 0. 3466 ; 6 A. 344; 24 A. 160.
   The opinion of the court was delivered by

DeBlanc, J.

Marie Eveline Benoit died on the 31st of October 1858, and — nine days after her death — her succession was opened and her surviving husband confirmed as the natural tutor of the children born of their marriage. He — as such — rendered an account which was homologated in 1860, and — by the decree of homologation — the share inherited by each of his wards from their mother’s succession, was fixed at $628.33$.

From the day he was confirmed as their tutor, his children had, on his property, a legal mortgage, as security for his administration, and the responsibility which resulted therefrom; but no abstract of the inventory of the minors’ property, no document attesting the amount of its appraisement, was recorded prior to the 1st of January 1870, and— from that date and in their own words — “their mortgage became prescribed and lost.” -

Old C. 354, 3282, 3283, 3298 — Const, of 1868,. article 123.

Defendant — it is alleged — was, in 1868 and 1869 — the clerk of the district and probate courts of the parish of Lafourche, wherein the succession of the plaintiffs’ mother was opened, and they charge that — by his failure to comply with the 11th section of Act No. 95 of 1869, commanding the deposit with the recorder of the abstracts therein mentioned, they have lost the whole of their inheritance.

This suit was brought to recover — from said clerk, and as damages— the amount of that inheritance, and he — in bar of plaintiffs’ demand— pleads the prescription of one year. His plea was sustained, and they appealed.

That part of the 11th section of the act of 1869 relied on by plaintiffs, reads as follows: “and any failure of the clerks or recorders to perform the service required, shall subject them to any damage that such failure may cause any person, and shall further subject them to a fine of not less than one hundred, nor more than one thousand dollars, for the benefit of the public-school fund, to be recovered by the district attorney or district attorney pro tern:”

Considering the terms of that legislative provision, it seems evident that the clerk’s failure amounts, not merely to the violation of a duty as regards exclusively the plaintiffs, but to the violation of a general duty, imposed in the interest of an entire class — minors—and that damages resulting from a failure, which may subject the clerk to a fine of one thousand dollars, can be recovered but on an action ex delicto, which is barred by the prescription of one year.

C. C. 3536 (3501).

It is, therefore, ordered, adjudged and decreed that the judgment appealed from is affirmed with costs.


author: Spancer, J.

text:
    No. 7677.
    State of Louisiana vs. Gustave Breaux.
    In tlie absence of any statement of tlie grounds on ■which the judge below excused two of the thirtyjurors who had been drawn for the week of the term in which the defendant was tried for and convicted of murder, it will be presumed that the judge excused them for sufficient and legal cause.
    The defendant in a criminal trial has not the right to demand attachments for absent jurors when there is present a sufficient number to form a panel.
    APPEAL from the Fifth Judicial District Court, parish of West Baton Rouge. McVea, J.

      J. H. Lamon, district attorney, and H. N. Ogden, Attorney-General, for the State.

      William B. Robertson for defendant and appellant.
    W. B. Robertson for defendant:
    First — That the judge had no right to excuse from serving any juror who had been regularly drawn, except for cause shown. 3 A. 51; 7 A. 285.
    Second — That every man charged with crime has a right to a trial by an impartial jury, and that an impartial jury can only be had when drawn according to law. Constitution of the United States; Constitution of Louisiana, 1868, article 6.
    H. N. Ogden, Attorney-General, and J. H. Lamon, district attorney of Fifth Judicial District, contra :
    A copy of the venire was served upon the accused; he announced himself ready for trial. It has not been shown that he has not had a perfectly impartial jury, or a fair trial; it has not been proven that he has been injured in any way. The questions of fact presented in these motions are exclusively cognizable by the district judge. The identical points made by the accused have been decided adversely to him in the ease of State vs. John Johnson, 11 A. 422 also in 11 A. 81, 479 ; 26 A. 422 ; 28 A. 681; 29 A. 642.
    The action of the judge in refusing to issue the writs of attachment is; sustained by the authorities.
   The opinion of the court was delivered by

Spancer, J.

The defendant was indicted for and convicted of murder, and .sentenced to death. He appeals, and relies on the following prints for reversal of his sentence :

First. Of the list of thirty jurors drawn for the second week of the term, and served on him, the court on the day the list was served excused two, without the knowledge or consent of the accused, and without there being any legal showing made of the propriety or legality of excusing them. The accused objected to proceeding further with the trial until said jurors were present, or some legal showing made for excusing them. The court overruled the objection, and ordered the trial to proceed.

Second. In calling thelist of jurors summoned, two or more of them failed to appear or answer, whereupon the accused moved for attachments to bring in said absent jurors, and objected to proceeding further with the trial until the attachments were executed. The court refused to grant the attachments, and ordered the trial to proceed.

In regard to the first exception, the excusing of two jurors, it does not appear what were the reasons inducing the judge to do so. In the absence of any statement of the grounds, we must presume that the judge did so upon sufficient and legal cause. How can this court decide his action to be illegal, in the absence of all knowledge on the subject? The accused should have required the judge to state the grounds of his action, if he desired this court to review it. In 7 A. 285, 28 A. 631, and 29 A. 642, this court held that the jury-list served on defendant was not vitiated by the court excusing, for cause, one or more jurors. The case in 3 A. 51 was an extreme case. There a list of 156 jurors had been served on defendant; of these only thirty-six were held to serve, the others having been excused before the service. The list of these thirty-six was handed him only on the clay of trial. This court held that there was not a substantial compliance with the ,law, and that such irregularities were calculated to confuse the accused; that the list had been reduced to thirty-six before the service of the list of 156, and that to the knowledge of the officers of the court. The list, therefore, contained the names of 120 persons, who were not, at the ■time it was served, jurors. The court say that it suffices if the list is correct at the time of service.

On the second point, it is well settled that the accused has not the right to demand attachments for absent jurors when there is present a ¡sufficient number to form a panel. 11 A. 81 and 122, and 479 ; 26 A. 422. It is manifest that if such were not the rule, the trial of criminals would rarely ever be effected, as it would be next to impossible to have every person drawn as a juror present on the day of trial. Courts can only bo required to comply substantially with the law in such matters, care being taken that no prejudice be wrought to the accused.

The judgment is affirmed.


text:
    No. 7651.
    State of Louisiana vs. Suzanne Calvert.
    Where i.lie transcript iu a criminal case fails to show whether the jurors that tried the defendant had been sworn, and whether defendant was in court and present during the trial, tlie verdict and sentence will he annulled.
    APPEAL from the Fourth Judicial District Court, parish of St. James. Duffel, J.

      J. C. Egan, Attorney-General, for the State.

      Rort. G. Dugué for defendant and appellant.
    Rort. G. Dugué for defendant:
    First — After the jury had delivered their written verdict, the judge erroneously instructed them to change, alter, or add to it. He directed the foreman then and there to sign it as foreman, and to date it, and told him to date it on the 11th of October, 1879. All this is proved by the affidavit at the foot of the rule for a new trial.
    ¡Second — a. The judge erred, when, of his own motion, he caused the jury to be polled and the verdict to be changed. C. P. 527, 528. It is only when one of the parties requests it that the jury is polled, or their verdict corrected, altered, or amended, b. It was error, in polling the jury, to ask them “guilty without capital punishment, is that your verdict ? ” The inquiry should have been limited to the question “Is this your verdict? ” 12 A. 264.
    'Third — The verdict shows on its face that it was not signed by all the jurors, as it purports to be. All the names are in the same handwriting. The original verdict has, with the permission of the lower, court, been filed with, the record here for the inspection of the judges of this court.
    Fourth — The affidavit at’ the foot of the rule for a new trial and the other testimony in the record establish that the jury were illegally permitted frequently to separate after they had been empaneled.
    Fifth — As suggested in the assignment of errors, nothing in the record befpre the court shows that a jury was ever sworn to try this case, nor that a trial was had, nor, if had, that the accused or her counsel were present at the trial. State vs. Douglass, 28 A. 425, and authorities there cited ; 31 A. 379 ; 30 A. 367.
    J. C. Egan, Attorney-General:
    The motion in arrest of judgment was properly overruled by the court, because the grounds alleged that there was no legal grand jury, and that Louis S. LeBourgeois was not authorized to act as foreman, are not sustained by the testimony in the record. There was a legal grand jury, and said Bourgeois was foreman of the same. The plea of autrefois convict cannot be plead in this case. After the first conviction of murder the new trial was granted, then a nolle pros. was entered, the prisoner was then indicted by the grand jury for murder, arrested, and upon this trial convicted for murder. This was not autrefois convict, nor can autrefois convict be taken advantage of by motion in arrest of judgment. The error for which a motion in arrest of judgment is made must appear on the face of the record, and therefore no defect in evidence or improper conduct during the trial can be urged during this stage of the proceedings. Sec. 1109, vol. 1, Bishop on Criminal Proceedings.
   The opinion of the court was delivered by

DeBlanc, J.

Defendant was indicted for murder, and found guilty; but the jurors qualified their verdict, by adding thereto “without capital punishment.” She was sentenced to hard labor for life, appealed from the verdict and sentence, and assigns as error:

1. That the record does not show that a j ury was sworn to try her, nor that she was tried.

2. That — if she was tried — it does not appear that she was present at her trial.

The record does not sustain the conviction. The few important entries which it contains, show that Suzanne Calvert was indicted, arraigned and pleaded not guilty — that Mr. Dugue was appointed to represent her, and hex trial fixed for the 14th of March 1879, and that — on the 11th of October of that year — she was found guilty by the petit jury.

We are not informed, by the transcript, when defendant was tried, whether the jurors by whom she was tried had been sworn, and whether she was in court and present during the trial. To sanction the verdict and affirm the sentence, which — if executed — would close on defendant, and forever, the door of the penitentiary, we would have to rely on inferences and invoke presumptions, which — in criminal cases — are not authorized by either law or precedent.

9 A. 9á ; 28 A. 425 ; 30 A. 368 ; 31 A. 380.

It is, therefore, ordered, adjudged and decreed that the verdict and sentence appealed from are annulled and set aside — that Suzanne Calvert, the accused — be detained in custody to answer the second indictment filed against her for the murder of James Butler, and that this cause be remanded to the lower court, there to be proceeded with according to law.


author: Spencer, J.

text:
    No. 7744.
    R. T. Buckner vs. J. H. Beaird.
    "Where the lessee of a plantation, who is suedfor one half of the rent by one claiming to be the half-owner of the place, excepts, that plaintiff cannot maintain the action separately, because he is a joint obligee in the contract of lease, and this fact does not appear on the face of the plaintiff’s petition, the defendant must prove the fact; otherwise his exception must be overruled.
    Where a debtor has voluntarily paid to one of his joint creditors the lattei’s share of the debt, he cannot, subsequently, when sued by the other creditor for his share of the debt, set np the indivisibility of the obligation as a ground for compelling the plaintiff to join his co-obligee as a party to the suit.
    APPEAL from the Tenth Judicial District Court, parish of Caddo. Boarman, J.

      T. T. & A. D. Land for plaintiff and appellee.

      Hicks & Hicks for defendant and appellant.
    T. T. & A. D. Land, for plaintiff and appellee, contended :
    That no evidence was introduced to sustain this exception. It was properly overruled. It was one of non-joinder, and came too late, after' default. 10 A. 536, 216 ; 11 A. 637, 713 ; 22 A. 291. The act of 1871, p. 19, has repealed C. C. art. 2085, as to joint obligors, and it might be logically concluded that the decisions in regard to the joinder of joint obligees are now inapplicable. But this point it is unnecessary to decide in this case. The exception was dilatory, and should have been pleaded in limine litis; and besides, the allegations of the petition, which must be taken for true, do not disclose a suit on a joint obligation, or that any third person has a joint inr terest in the subject matter of this litigation. Plaintiff .may well have leased his undivided half-interest in the plantation to defendant for $1250.
    Hicks & Hicks, contra :
    First — That Buckner, a joint lessor, cannot maintain the action for his undivided half of the rent, and the exception must, upon the face of the papers, be sustained. See C. C. 2079, 2081, 2083, and 2093; also Ailing vs. Woodruff, 16 A. 6.
    '■Second — That the exception is not founded on form, but goes to the absolute want of any right in the plaintiff to maintain the action, and may be urged at any stage of the case. C. P. 345, 346; 17 La. 236. If the action of Buckner had been for the whole amount of the rent, then perhaps an exception of non-joinder must have been filed in limine litis.

    'Third — That the debt was indivisible without the express consent of each of the parties, and must be so enforced. B. C. C. 2111, 2153, 2083, 2093.
    Fourth — That even a payment to one obligee of his half does not dispense with the necessity of his being joined in the suit to enforce payment of the remainder. B. C. C. 2087.
   The opinion of the court was delivered by

Spencer, J.

Plaintiff, alleging that he was during the year 1877 half-owner of the Campo Bello plantation, claims of defendant $1250, ‘being one half of the rent thereof, as agreed upon by a verbal lease with defendant. He prays judgment accordingly.

A judgment by default was entered against defendant on 8th April, 1879. On 12th April, the defendant filed an exception, to -the effect that plaintiff could not maintain this suit, for the reason that if he, defend■ant, is indebted for rent, he is so to one Joseph Henry and plaintiff as .joint obligees. This exception was overruled, and defendant filed his ■answer. Defendant offered no proof in support of his exception. It was not apparent on the face of plaintiff’s petition ; for non constat that plaintiff did not lease his half of the place by separate contract. Joint owners of real estate are not partners, and they may well lease separately for the same or different sums.

The court properly overruled the exception on this ground, even admitting it to be pleadable after default. It is not necessary, therefore, do discuss the question as to the right ©f one joint obligee to sue to enforce his virile part of a debt, since on trial of the exception no proof .showed that state of facts to exist.

On trial of the merits, it appeared in evidence that B. T. Buckner and Jos. Henry owned the plantation in common, and that it was leased to defendant for $2500. That Henry had demanded, and the defendant had paid Mm his half of the rent. In other words, it appears that-Beaird had himself undertaken to settle with each creditor the amount of his share in the rent, and had himself divided what he now contends was indivisible. He shows by his own testimony that Henry has now no possible interest in the claim here sought to be enforced. We see no occasion, therefore, for entering into an examination and discussion of that most difficult title of our Code, treating of divisible and indivisible obligations, and of their enforcement. The party who intends to rely upon technicalities should be careful to keep himself within the technical rules he invokes. Defendant admits in his brief that he owes plaintiff the amount sued for, and the judgment below condemned him to pay it. Appellees have asked damages as frivolous appeal. The appeal is only devolutive, and we think the case, therefore, not one.requiring such penalty.

The judgment is affirmed with costs.


author: Marr, J.

text:
    No. 7702.
    L. K. Person vs. B. E. O’Neal and Others.
    Band cannot be validly sold for tases •without a legal assessment: and an assessment is not legal which does not contain a description by which the parts of the government subdivisions belonging to the delinquent can be ascertained and separated from the parts of the same subdivisions belonging to other persons.
    Where land is assessed as the property of an owner unknown, the appointment of a curator ad hoc, and the service of notice on him ten days before the seizure, are indispensable prerequisites to a sale for taxes.
    Where the seizure was made on the 12th Juno, by recording in the hook of mortgages, the advertisement on the fourteenth was premature ; and the sale on the 25th June was also premature and void.
    The publication of notice of a tax-sale by two insertions in a weekly paper is not a compliance with.the law which required notice by iDublication three times in ten days, or by posting for ten days.
    An illegal or insufficient'assessment, and tbe want of personal notice to tb© owner, or his agent, or curator ad hoc, ten days bofore the seizure, aro, radical defects, which are not cured by the prescription of three years, nor by that of five years.
    The effect of that clause of article 118 of the constitution of 1868, which made the deeds of tax collectors grima facie evidence of valid sales, was to impose on the person attacking snob sales the burden of proving tbat tbey had not been made in accordance with the requirements of the law.
    A sale for taxes in 1875, before the expiration of the delay granted to all taxpayers by the act of 1875, p. 106, was a trespass and a nullity.
    APPEAL from the Eighteenth Judicial District Court, parish of Bossier. Turner, J.

      T. T. & A. D. Land, ior plaintiff and appellant:
    First — Parol evidence is inadmissible to prove a list or return of property by a taxpayer to the collector for the assessment of taxes. The law requires the list or return to be in writing and signed by the taxpayer himself, and verified by his affidavit. See Acts of 1871, page 112, secs. 23, 24, and 25 ; and in the absence of such a list the assessor and collector must ascertain and give the true and correct boundaries of the taxpayer’s lands. Secs. 32 and 36, Acts of 1871, pp. 14 and 15 ; 14 A. 209.
    Second — The defendant, relying on a tax-sale for’ his title, is bound to show not only the existence of an assessment, but also its legality. He has shown an assessment of the lands, and the question to be determined is, whether that assessment was legal. “In forced sales for taxes, every formality, of the law must be strictly complied with, under the pain of nullity.” Nancarrow vs. Weathersbee, 6 M. S. 348 ; Smith vs. Corcoran, 7 L. 50 ; Reeves vs. Towles, 10 L. 283; 13 S. 205 ; 4 A. 248 ; 6 A. 542 ; 8 A. 19 ; 10 A. 329 ; 13 L. 210 ; 15 A. 15 ; 29 A. 508; 30 A. 175, 298. According to the doctrine of these decisions, the assessment of the plaintiff’s land without an accurate description of the boundaries, and assessed with other lands belonging to third persons, present in the State with titles of record, was an absolute nullity, and conferred on the tax collector no authority whatever to seize, advertise, and sell them for the taxes of 1872.
    Third — The sixth ground of nullity alleged in plaintiff’s petition is, that there was no legal seizure of his lands for the payment of taxes, in this, that there was no description of them as required bylaw in the mortgage-book of Bossier parish by the tax collector; he being required to record a correct and accurate description of the lands in order to effect a legal seizure.
    Fourth — The collector did not give the ten days written or printed notice to the plaintiff or his agent, as expressly required by law, before making a seizure, by recording the list or return of assessment in the mortgage-book of the parish. The failure to give this notice vitiates the sale. 30 A. 871; 29 A. 508,112 ; 30 A. 175 ; Act of 1873, sec. 1, pp. 98 and 99.
    Fifth — The lands could not have been legally sold before the 28th day of June, 1873, when, in fact, they were sold on the 25th. They should have been advertised three times within the ten days, when, in fact, they were only advertised twice. 31 A. 661.
    Sixth — The formal tender required by Article 407, O. P., is not required in an action to redeem lands sold for taxes. Brooks vs. Hardwick, 5 A. 675 ; Coleman, Executor, vs. Percy Baker, 24 A. 524.

      Seventh — Replications are not permitted by our law, and all allegations in the answer are open to every objection of law and fact, as nonage, coverture, fraud, prescription, and the like, or if specially pleaded. 2 Hennen’s Digest, page 1155; Pleading V. (c) 2; Ib„ Pleading YI. (A. 1) page 1163.
    Eighth — The nullity apparent on the face of the deed in this case is, that the collector sold the lands of the plaintiff, on the 29th day of June, 1875, in contravention of the prohibitory statute of that year, enacted for the relief of delinquent taxpayers. These authorities demonstrate that no action was necessary to set aside the tax-sale of 1875, and that no tender on the part bf the plaintiff was required before bringing his suit.
    - Ninth — The prescription of three years is pleaded under section 5 of the act of 1874, p. 155. That section is unconstitutional. Constitution of 1868, arts. 10,110, and 115.
    Tenth — The prescriptions of the Civil Code apply to tax-sales. 10 A.. 327 ; 10 A. 671.
    Eleventh — A purchaser in bad faith, at a tax-sale, acquires no title.
    Twelfth — A purchaser at a tax-sale, where there was not the description of the land required by law, can only acquire title by the prescription of thirty years. 15 A. 15 ; 29 A. 509 ; 30 A. 175.
    Thirteenth' — It is only the possessor in good faith, under the Civil Code, who is entitled to recover the value of improvements, and to gather for his benefit the fruits of the thing until it is claimed by the owner, except from the time of judicial demand. O. C. 3453 ; 4 N. S. 260 ; 12 A. 545 ; 16 L. 430.
    Fourteenth — A possessor, without just title, owes the fruits and revenues from the commencement of his possession. 7 N. S. 112 ; 6 R. 192 ~ 12 R. 256; 3 A. 258 ; 6 A. 356.
    J. A. Snider, contra :
    First — The owner must tender to the purchaser of land at a tax-sale-the taxes paid by the latter before he can sue to recover the land, 30 A. 1232.
    Second — A substantial compliance with the law touching the disposition of property at tax-sales is sufficient. Cooley on Taxation, pp. 324-, 205.
    Third — In the case at bar the plaintiff furnished the description to the tax collector in 1871, and in 1872 the same tax collector copied the list of the latter year from that of the former. The plata tiff was a non-resident, and the tax collector, “ in default of the taxpayer to furnish a description” fo.r 1872 of his property, did describe it “ according to his (the tax collector’s) knowledge,” etc.

      Fourth — Again, section 40 of the act required the clerk, recorder, and sheriff of the parish to assess the property d 'scribed in descriptive rolls, and to give notice, etc. This notice was given in the Bossier Banner, the official journal of Bossier parish, in exact accordance with the laws. Said notice was published weekly, for five weeks, beginning with the issue of date July 13th, 1872, and ending with that of August 10,1872. T. p. 190. State vs. La. Ins. Go., 19 A, 474 ; Dailey vs. Newman, 14 A. 580. The plaintiff is presumed to know the law, and he had from the first of August to the first of September, 1872, to appear before the board of appraisers constituted by law, and to correct the description or the valuation of his property. The list was made out in his name by a description given by him to the proper officer; he had his month in which to revise it.
    Fifth — The land was advertised in the Bossier Banner, the official journal of Bossier parish (a weekly journal, no daily being published in said parish), in its issues of June 14th and June 21st, 1873 (T. p. 109), and the sale took place June 25,1873. These facts are shown by the advertisement, by the recitals in the deed, by the production of papers, and the testimony of its proprietor. There were ten clear clays between the first publication of the sale and the sale, and the law was complied with so far as it is possible to do so in the country. The law says, “in the country parishes by public notice for sale, ten days.” Arts. 1116 and 1117, Rev. Civil Code, determine what public notice is, and how it must be given. The latter article (1117) expressly sanctions the giving of public notice for ten days, by advertisement “ inserted as often as the gazette appears during that time,” in all the country parishes. This view of the point under discussion seems to have been sanctioned by the court in Rensbaw, Cammack & Co. vs. Imboden et al., 31 A. 662.
    Sixth — Section 2809, Rev. Stats, of 1870, and Rev. C. C. art. 3543, establish the prescription of five years against all informalities connected with or growing out of any public sale made by any person authorized .to sell at public auction, etc. This prescription runs from the time of making the sale, and runs against minors, married women, or interdicted persons. It is the legislation embodied in sec. 4 of the Act of March 10th, 1834.
    Seventh — But a more serious prescription for plaintiff is that of three years, as found in section 5 of Act No. 105 of 1874, page 155. That section reads as follows : “ Be it further enacted, etc., That no writ of injunction shall'issue against any tax collector, sheriff, or purchaser proceeding under this act, and any action to invalidate the titles to any property purchased at tax-sales. under or by virtue of any laws of this State shall be prescribed by a lapse of three years from the date of such sale.”

      Ninth — The purchaser at tax-sale has a right to demand the value of all improvements he has made on the lands. Act No. 100 of 1873 ; 0. 0. 3451, 3453 ; 15 A. 698 ; 18 A. 407.
    Tenth — A tax-title is prima facie valid, and it cannot be attacked collaterally. Constitution of 1868, article 118 ; 29 A. 112 ; Cooley on ' Taxation, 329, 330, 331.
   The opinion of the court was delivered by

Marr, J.

Plaintiff seeks, in this action, to recover certain land on the Red River, in the parish of Bossier, which was sold in 1873 for the taxes of 1872, and purchased by defendant O’Neal. He alleges the nullity of this sale on several grounds ; and that, after the sale, he tendered to O’Neal the amount of the taxes, costs, and penalties for which the land was sold : and he claims $5000, damages for waste committed in the cutting of timber and cord-wood, and $3000 for the rents and revenues.

Defendant O’Neal alone appeared ; but as he claimed title no further notice need be taken of the other defendants. He excepted that plaintiff had not, before bringing the suit, tendered to him the taxes, costs, and penalties ; and that this was a condition precedent to the right of action. This exception was referred to the merits. Answering to the merits, defendant repeated his plea of want of tender ; and he claimed title to part of the land described in the petition under the sale in 1873, and to the remainder under a sale in 1875 for the taxes of 1874. He also claimed, in the event of a j udgment in favor of plaintiff, $3000, for taxes paid, and expenditures for improvements.

The judgment of the district court was against plaintiff, as in case of nonsuit, for the land sold in 1875 ; and in his favor for that sold in 1873 : and it condemned plaintiff to pay defendant $745, for the difference between the rents and the expenditures for taxes and improvements. Plaintiff appealed ; and defendant in answer to the appeal prayed that the judgment be so amended as to conform to the prayer of his answer to the merits.

Plaintiff, in his petition, describes the land claimed by him, as all that part of section 14, all that part of fractional section 22, and all that part of fractional section 23, in township 17, range 13, lying south of or below a certain boundary line as established by a judgment and survey in the suit of Jacob Irwin vs. L. K. Person, No. 611 of the docket of the district court of Bossier parish. This was part of a tract acquired by the planting partnership of Person & Irwin, in 1847, on which they established a plantation.

In 1854 Irwin brought suit against Person for a partition, describing the land, held in common, as the south- half of section 14: the south■east fractional quarter of section 15: the northeast and the southeast fractional quarters of section 22; and the entire fractional section 23, containing, according to the original government surveys, 1127 acres. The land was carefully surveyed for the purpose of partition ; and the quantity was found to be 1120 acres. It was valued by experts ; and the actual partition was made in 1856, and confirmed by final judgment in March, 1857. The whole was separated into two parts by running a line north, 69 deg. 30 min. east, from a point on the river, about the middle of the western boundary of the fractional quarters of section 22, through that section and across sections 23 and 14 to the eastern boundary of section 14, so as to leave on the north side of this line all of the south half of section 14, except a small triangle, about 40 acres, in the southeast corner, comprised within this division line, the eastern boundary of section 14, and the southern boundary of 14, which is, also, the northern boundary of section 23: all of the fractional quarter of section 15 : about half of the two fractional quarters of section 22 ; and a small triangle, containing about 40 acres, in the northwest corner of section 23, comprised within the division line, the western boundary of section 23, which is the eastern boundary of section 22, and the northern boundary of section 23, which is the southern boundary of section 14.

The land north of this division line was worth more per acre than that south of the line : and this line was so run as to equalize the value of the two tracts; by leaving 475 acres on the north side, and 645 acres on the south side, by actual survey. The portion north of the line fell to Irwin, who sold it to Hart ; and it now belongs to the succession of Hart. The portion south of the line, consisting of the triangle at the southeast corner of section 14: about half of the fractions of section 22 east of the river ; and all of fractional section 23, except the triangle at the northwest corner, was allotted to Person. This is the land claimed by him in this suit; and it is plainly shown by the survey and plat and the proceedings in the partition suit.

In 1871, and again in 1872, the whole of the land which had belonged to Person & Irwin, except the southeast fractional quarter of section 23, was assessed as the property of Person. By the government surveys the whole tract contained 1127 acres ; and the southeast fractional quarter of 23 contained 150 50-100 acres: so that the land thus assessed was about 977 acres, or about 330 acres more than all that was allotted to Person in the partition.

On the 12th June, 1873, the collector made a seizure for the taxes of 1872, by recording, in the mortgage-book of the parish, the amount of ■taxes assessed in the name of Person, §34 75, and the following description of the land : The south half of section 14 : the southeast fractional quarter of section 15 : the fractional part of section 22 ; and the northeast quarter, the northwest quarter, and the southwest fractional quarter of section 23, township 17, range 13, Northwest Louisiana. This description included the whole of section 23, except the southeast quarter.

It will be observed that of this whole body of land thus assessed and seized as the property of Person, he owned no part of the south half of section 14, except the triangle at the southeast corner: no part of the southeast fractional quarter of section 15: that he owned about half only of the two fractional quarters composing the east half of fractional section 22; and that he did not own the triangle already described at'the northwest corner of section 23.

Having thus made the seizure on the 12th June, the collector, on the 14th June, advertised the land for sale, in the Bossier Banner ; and that advertisement appeared again in that paper on the 21st June. The sale was made on the 25th June, and the collector’s deed on the 26th.

The description in this deed is the south half of section 14: the southeast quarter of section 15 : the fractional part of section 22 east of the river; and “ the southwest fractional section ” 23, T. 17, R. 13. This deed was confirmed by the Auditor on the 12th March, 1874, by the same description. But this description is not in conformity with that in the recorded seizure, in which the land in section 23 is described as the N. E. ¿ and the N. W. \ and the S. W. fractional quarter. The description of the land in this section, in tin' two deeds, is “ the southwest ■fractional section 23,” which designal<‘s no subdivision of land, nor could any land be located by such a d< ¡-cription.

We attach no importance to the statement that plaintiff when he paid the taxes in 1871 or 1872 gave the collector a list of his land for taxation ; because that list was not produced, and he says he referred the collector to the records for the metes and bounds.

The law in force at the time this sale was made required the tax collector to give notice, by publication, for twenty days, requiring the taxes to be paid: that is, general notice to all taxpayers. If the tax was not paid within ten days after the expiration of this notice, the collector was authorized to give ten days written or printed notice, that is personal notice, to the owner or agent of the property assessed; and if the tax was not paid at the expiration of this delay, the collector was authorized to make a seizure by recording a description of the property, with the amount due, in the mortgage-book of the parish : and, on the fourth day of such recordation “he shall procéed to sell, without legal process, after advertising three times within ten days, in the official journal ; and, in the country parishes, where such publications cannot be made, by public notice for such ten days.” See act of 1871, p. 120, section 57 ; act of 1873, p. 98, section 1.

The law also required, where the owner was unknown or absent,, that the collector should apply to the parish or district judge, and have a ourator ad hoc appointed, and to serve the ten-days notice on him prior to the seizure. Act of 1873, p. 100, section 5. The records of Bossier parish furnish no evidence that any such application or appointment was made in this case ; and Person was absent, and was a nonresident, having resided in the State of Arkansas for many years. The-appointment of a curator ad hoc is a judicial proceeding, in a court of record; and, while we may admit that parol testimony may be resorted to to prove the loss of a record, and the contents, such testimony is-clearly not admissible to prove a judicial proceeding until it has first been shown that such proceeding was had, and that the record evidence-of it has been, lost or destroyed. No witness proves that the collector-applied for appointment, or that the appointment was made in this case. There is proof tending to show that notice was served on a person who was appointed curator in some forty cases of tax-sales ; but O’Neal, the-defendant, testifies that he made thorough search, and could find no-trace, in the records of the parish, of any such application or appointment in this case.

The law required that land assessed should be designated by name, if it have a known name, by the name of the owner, if he be known, and by the boundaries ; or by the boundaries alone, if the other particulars be not known. Act of 1871, p. 114, section 32.

The tax-sale is fatally defective.

1. The land described exceeded by more than 300 acres the quantity owned by Person. The description omitted 150 50-100 acres, which constituted part of the tract allotted to him, and it included the parts of four sections which fell to Irwin in the judicial partition. There was not, either in the assessment, or the seizure, or in the deeds of the collector and the Auditor, any description by which the parts of the government subdivisions which belonged to Person' could have been ascertained or separated from the parts of the same subdivisions which belonged to the succession of Hart. Of course defendant cannot pretend to claim title under this sale to the southeast fractional quarter of section twenty-three, which was wholly omitted in the assessment, in the seizure, and in the deeds.

2. The seizure having been made on the 12th June, conceding that the previous notices had been given, which is not proven, the collector had no authority to proceed further until the fourth day, the 16th of June. The advertisement on the 14th was premature ; and the sale on the 25th was also premature.

3. The Bossier Banner being a weekly paper, notice by publication,, three times in ten days, could not have been given in the regular issues-•of that paper ; but the law, anticipating this, required the collector, in ■■such cases, to give public notice for ten days, that is, by posting. The record furnishes no evidence of notice, except that published on the 14th and 21st June.

The assessment, the seizure, the sale, were nullities for want of a proper description of the land : for want of personal notice: for prematurity of the advertisement on the second day after the recording of the seizure; and for want of the three publications, or posting for ten days, as required by the statute. See Renshaw vs. Imboden, 31 A. 661.

As to the plea of want of tender, the proof is that plaintiff did, in 1874 or 1875, at the office of defendant, tender to him $200 in order to redeem his land. Manifestly, plaintiff was under no obligation to tender so large a sum. The taxes for which the sale was made amounted to $34 '75, and they were assessed oñ more than 300 acres which did not belong to plaintiff. The price was $52 45, which paid the entire tax, costs, and penalties on the whole body of land. There was no means by which plaintiff or defendant could have ascertained what part of this sum was due by plaintiff, because the assessment, the seizure, and the sale included such a quantity of land which did not belong to him, and which was, probably, more valuable than his. In 1856 the 475 acres which fell to Irwin were valued by the experts as being equal to the 645 acres which fell to plaintiff. The whole of that which fell to Irwin -was included, while only 495 acres of the 645 which belonged to Person were assessed; and there is no proof of any change in the relative values •since 1856.

It is urged that the constitution of 1868, art. 118, made the deeds of tax collectors prima facie evidence of valid sales. That is true; but the prima facie evidence in this case is contradicted by the positive proof that the sale was not in accordance with the requirements of the law.

It is also urged that, by the act of 1874, p. 155, section 5, any action to invalidate the title to any property purchased at tax-sale under or by virtue of any law of this State shall be prescribed by the lapse of three years from the date of such sale. But in all forced alienations it must . appear, prima facie, by the recitals in the deed, pr aliunde, that the sale was made in accordance with the law. Without citation, a judgment is void. Without a description of the taxpayer’s property, by which it ■can be distinguished and taxed separately from the property of others, there can be no legal assessment; and a valid assessment is as essential to a sale for taxes as a valid judgment is to a sale under fieri facias. Without the previous personal notice to the former, or his agent, or the curator ad hoc lawfully appointed to represent him, there can be no valid seizure for the taxes ; and without the delays, and publications or posting, no valid sale can be made. Whatever defects in a tax-sale may be cured by the lapse of three years, the want of personal notice to the-owner, or his agent or curator cannot be, because such notice is a condition precedent to the seizure, without which there could be no sale.

Defendant also invokes the prescription of five years, established by the Act of 1834, re-enacted in 1855, and again in Rev. Stats, of 1870,. section 2809. This statute cures informalities not radical defects in. public sales, Woolfolk vs. Fonbene, 15 An. 15 ; and an illegal or insufficient assessment is a radical defect.- Thibodeaux vs. Keller, 29 An. 510.. Besides, on the 5th February, 1877, defendant addressed a letter to plaintiff, in which he offered to find a purchaser for the land if plaintiff would-sell at a satisfactory price. This was an acknowledgment of plaintiff’s right, and an interruption of prescription. R. C. 0. art. 3520.

Defendant also claims in virtue of the sale in June, 1875, for the taxes of 1874. On the roll of 1874 certain land is assessed as the property of “unknown No. 2.” The quantity is 1327 acres, in sections 12,13,. 14, 22, 23, 24, 25. No part of this land belonged to plaintiff, except that which is described as the N. J, and the N. W. \ of the S. W. J, and the N. E. J of the S. W. J, and the S. E. J of section 23 : and of these subdivisions of this section all were included in the seizure in 1873, and were actually claimed by O’Neal, except the southeast quarter, containing 150 50-100 acres. The total tax on this large body of land amounted to $26 15 ; and it was adjudicated to O’Neal for $43 14, which sufficed to pay the entire tax and costs. The greater part of this land belonged to the succession of Hart; and, on the 27th September, 1877, in consideration of the payment to him by Mrs. Hart of this sum, O’Neal renounced in her favor all claim to the land which fell to Irwin in the partition of 1856, and to 480 acres in sections 13 and 24. Having received from Mrs. Hart all that he paid for the taxes on 1327 acres, O’Neal demands with a bad grace the re-imbursement by plaintiff of any sum on account of the small portion of land belonging to him included in the assessment, seizure, and sale of the 1327 acres.

The titles to the land assessed in 1872 as the property of Person, and to the lands assessed in 1877 as the property of “unknown No. 2,” were public, of record, and of long standing ; and the tax collectors do not discharge the duties incumbent on them when they describe for assessment, as the property of " unknown,” lands which belong to several different persons, whose titles are accessible in the records of the parish. It is their special duty and business to examine the public records, and to ascertain the names of the owners, and proper descriptions of all taxable lands. We should not be inclined to treat as valid a sale for taxes of land assessed as the property of " unknown,” when the ownership could be so easily ascertained ; nor to sanction an assessment as the property of such “ unknown,” of an entire body of 1327 ■acres belonging to different proprietors.

But there is a cause of nullity in this case which is patent and incurable, as we had occasion to decide in the Workingmen’s Bank vs. Lannes, 30 An. 871. By the act of 1875, p. 106, a delay until the first of November was granted to all taxpayers throughout the State. It was therefore unlawful for the collectors to enforce payment of the taxes before the expiration of that delay ; and a sale in the meantime was a trespass and a nullity.

The plaintiff is dearly entitled to recover the lands described in his petition ; and the only remaining question is as to the rents and revenues, and the claim of defendant for expenditures for taxes and improvements.

The evidence shows that many years since Person removed to Arkansas, and that he has not cultivated this land since 1868, and has not seen it since 1869 or 1870. It is a low place, subject to overflow. The houses were in a dilapidated condition in 1873 : the greater part of the fencing was gone : there were some breaks in the levee ; and much of the land which had been cultivated was grown up in brush and cotton wood. It was a waste ; and could have had no great rental value in the condition in which it was in 1873. O’Neal caused a part of the land to be cleared and fenced, and some of the cabins were repaired and made habitable. The fencing was of a very inferior character, partly of cotton-wood poles; and the clearing of the land which had been cultivated up to 1868 could not have been very difficult or expensive.

The evidence does, not show, satisfactorily, what part of the improvements was on Person’s land, in 1877 O’Neal Sold to Boone 100 acres in section 24, which never belonged to Person. Boone lived on this land, and he cleared and cultivated about twenty acres, and put up a dwelling, a stable and crib, and a log cabin there.

We think the district judge erred in considering the tender made by Person as fixing his liability to O’Neal for the amount tendered, $200, for taxes up to the date of the tender. There is an admission that the taxes on plaintiff’s land were about $10 .

On the whole, our conclusion is that the claim for improvements and taxes is fairly compensated by the use and occupation of the land ; and that the pecuniary demands of plaintiff for rents, revenues, and damages, and of defendant for taxes paid by him and for improvements, are extinguished, the one by the other.

The judgment appealed from is therefore annulled, avoided, and reversed; and it is now ordered, adjudged, and decreed that plaintiff be recognized and declared to be the owner, and be put in possession of the land described and claimed in his petition; that is, of the parts of sections fourteen, twenty-two, and twenty-three, in township seventeen, range thirteen, Northwest Louisiana, lying on the south or lower side of the division line established in the judicial partition between Jacob Irwin & Levin K. Person, in the suit No. 611 of the docket of the district court oE Bossier parish; and that Benjamin F. O’Neal, defendant and appellee, pay all the costs in this court and in the district court.