TUTORS AND TUTORSHIP-Continued.
may be appointed afterwards and before the notary begins the
partition.
Ibid.
5. Where it might be true that, technically, a widow had never
qualified as administratrix of her husbands's succession, yet where
she qualified as tutrix to her minor children, she necessarily be-
came administratrix of his succession, and payment to her as such
of a debt due to the succession would be valid.
Locke v. Barrow, 118.
6. Where the creditors of a succession opposed the final account of
the administratrix of said succession on the ground that a district
court judgment for several thousand dollars in their favor was not
placed on said account and paid: Held-That the administratrix
could not, in the parish court, dispute the final judgment against
her in behalf of the opponents; first, because a judgment not ab-
solutely void can not be attacked collaterally; second, because the
parish court can not revise a judgment of the district court, and
also because the parish court can not determine a controversy
when the matter in dispute exceeds $500, for want of jurisdiction
ratione materiæ. The administratrix should not have omitted to
place the claim of the opponents on her final account and to pro-
vide for its payment, because the process of garnishment had been
resorted to against one of the opponents by a third party.
Succession of Neal, 125.
7. Where a note for a certain sum of money was found in the suc-
cession of the father of the maker's wife, and was alleged to have
been given in acknowledgment of an avancement d'hoirie to said
wife, who sub equently died, leaving minors for her heirs: Held—
That said note being given in the individual name of the maker
must be considered as his individual debt, and is not subject to
collation on the part of the minors in the succession of their grand-
father, and that, even admitting said note to have been an acknowl-
edgment of indebtedness by the drawer in the name of his children,
a tutor has no right to make such an acknowledgment.
Succession of Landry v. Peray, 183.
8. Where A was appointed by will tutor to minors, and at the same
time the testator declared that the care, management and raising
of his children should be left in the hands of Miss B: Held-
That this was not appointing her tutrix; that this was merely
giving her the personal care of the children, whilst the legal con-
trol of the persons and property of the minors was vested in A,
who could as tutor, when he chose, remove them from her care.
Succession of Payne, 202.
9. On the plea that a tutrix can not authorize another person to bind
the minors on an injunction bond: Held-That it is the duty of a
TUTORS AND TUTORSHIP-Continued.
tutrix to protect the rights of her wards, and if, in the accomplish-
ment of that duty, it becomes necessary to execute a judicial bond,
she has the right to do so.
Dupré v. Swafford, 222.
10. Nothing is to be found in the statutes of this State relative to
adoption, which, being construed with the various articles of the
Civil Code on the subject of tutorship, inclines this court to be-
lieve that the Legislature, in permitting the adoption of children,
had any intention to abridge the right of a natural tutor to the
personal care and control of his minor child or to the administra-
tion of the child's property.
Succession of Forstall, 430.
11. The defense that the note sued on was given in settlement of the
claim of the plaintiff against defendant as tutor, when no account
had been rendered by defendant to the court, can not be sustained.
Neilson v. Neilson, 528.
12. The provision of the Code, which requires a tutor to render an
account ten days previous to entering into any agreements with
his ward, is intended for the protection of the ward, and he alone
can take advantage of its disregard. The tutor cau not take ad-
vantage of his failure to comply with the law.
Ibid.
13. The allegation that the note was given for two slaves purchased at
the tutor's sale of the minor's property, can not be listened to in a
court of justice. The tutor can not, in his own defense, be per-
mitted to urge his own dereliction of duty and violation of the
laws of his country. Besides, it is in evidence that the price of
the slaves was not the consideration of the note sued on. Ibid.
14. The execution of the note for the amount ascertained to be due
by the tutor did not change the character of the debt. It fixed
the amount due and the period when it should be exigible, but it
did not dxtinguish the legal mortgage wh ch the law gave to
secure the rights of the ward. Novation is never presumed.
SEE JURISDICTION. Nos. 9, 10-Lay v. Succession of O'Neil, 605.
SEE JUDGMENT, Nos. 33, 34, 35— Winter v. Tounoir et al., 611.
TRANSFER.
SEE BILLS AND NOTES-City of New Orleans v. Strauss, 50.
SEE MINORS, No. 1-Seyburn v. Deyris, 483.
SEE PRESCRIPTION, No. 11-Whitehead v. Dugan, 409.
TELEGRAPH COMPANY.
SEE PRESCRIPTION, No. 10-Lagrange v. Southwestern Telegraph
Company, 383.
SEE CARRIERS, Nos. 2, 3, 4-Ibid.
1. Where defendants received a certain quantity of cotton, sold it,
and collected the proceeds of the sale as commission merchants or
factors of the plaintiff: Held-That the debt resulting from it is
a fiduciary one, and exempted by the insolvent law from its
operation. The money was received in trust for the pla ntiff.
Defendants, by converting it to their own use, rendered them-
selves amenable to the criminal laws of the State. It can not,
therefore, be inferred that the insolvent laws of the State intended
to discharge a debtor from such a debt, even if it had not been
therein expressly excepted.
Tate v. Laforest, 187.
TAXES AND TAXATION AND TAX SALES.
1. The statute of 1871, creating additional remedy for embezzlement,
breach of trust or fraud, on the part of collectors of taxes, in no
manner conflicts with section 1593 of the Revised Statutes of 1870,
and the latter is not therefore repealed by the former.
2. Where the resistance to the payment of State taxes was founded
on the ground that the clerk, sheriff and recorder, before proceed-
ing to make the assessment on which the tax is levied, gave no
notice in the official journal of the parish, as required by section
forty of the Revenue law, acts of 1871, 116: Held-That the
plaintiff's objection rested merely on technical grounds, inasmuch
as he had paid voluntarily his parish taxes, which were levied
under the same law, by the same parties, upon the same assess-
ment, at the same time and in the same manner in every respect
as the State taxes, and had several times promised to pay said
taxes; and inasmuch also as he had made in this proceeding no
complaint of any error, injury, or injustice in the assessment and
levying of the taxes.
Gag v. Hebert, 196.
3. The object of section forty of the Revenue law of 1871 is to give
the taxpayer notice, that he may have an opportunity to have
errors corrected and a just assessment made. Where it is proved
that he had such notice, he has no cause to complain.
Ibid.
4. There is no prohibition in the constitution against the sale of
property for taxes in lots of from ten to fifty acres, or any other
quantity. The fact that the constitution directs that all lands sold
in pursuance of decrees of courts shall be divided into tracts of
from ten to fifty acres, does not inhibit the legislature from direct-
ing lands sold under other process to be similarly divided.
Ibid.
5. The impracticability of the proceeding prescribed by law and the
imposing of the cost thereof upon the purchaser of lands sold for
taxes, are not good grounds for an injunction on the part of the
TAXES AND TAXATION AND TAX SALES-Continued.
taxpayer. The consequences referred to will rest with the State
and the purchaser.
6. Where a piece of property was bought at a tax sale, the deed for
it made out by the sheriff and duly recorded in the office of the
recorder of the parish, and said property was seized by a creditor
of its former owners, who treated the tax sale as an absolute nul-
lity, and who, being injoined by said purchaser, proposed in the
injunction suit to attack the title by showing irregularities and
defects in the proceedings preceding the tax sale: Held-That on
its face the title of the purchaser is regular; that he is in posses-
sion under a recorded title; that by a special provision of the
constitution, article 118, the deed of sale is prima facie evidence
as to the title; that it is declared valid by section 59 of the act of
1872, No. 42, and that for these reasons the injunction must be
maintained.
Coco v. Thieneman et al., 236.
7. Where the plaintiff sued for the value of his services in transfer-
ring from the other district courts and docketing in the Superior
District Court some fifteen hundred tax suits, and obtained judg
ment in his favor for the sum of fifty cents per suit on all of said
suits: Held-That the extra compensation allowed the clerk in
this instance was not authorized by law.
Burk v. City of New Orleans, 301.
8. Where, instead of procuring and recording, according to law, cer-
tified copies of judgments as directed by city ordinance No. 1630,
administration series, the plaintiff followed the provisions in sec-
tion 12 of act No. 73 of 1872, by which a special mode was provided
for recording the taxes due to the city without any cost to the
city: Held-That if the provisions of this act are resorted to in
preparing and inscribing the tax judgments to preserve the lien
and mortgage in favor of the city, its provisions in regard to com-
pensation must be enforced. It is only by the terms of this law
that the lists or registers prepared by the plaintiff can have effect
as a legal inscription. But this inscription was to be made with-
out cost to the city. Outside of this law the said registers or
inscriptions of judgments, as made by plaintiff, are without effect.
The inscriptions are not made in the books of privileges and mort-
gages required by the general law on the subject.
Southworth v. City of New Orleans, 333.
9. The clerks of courts in the city of New Orleans do not come within
the provisions of section 52 of act No. 42 of the General Assembly
of 1871 in relation to the assessment and collection of taxes.
State ex rel. Lynne v. Clinton, 342.
10. There is no law which requires that the tax bills or receipts shall
TAXES AND TAXATION AND TAX SALES-Continued.
be signed by the Administrator of Finance of the city of New Orleans, or that stamps should be affixed to them.
City of New Orleans v. Crescent Mutual Insurance Company, 390. 11. It is not necessary that, in the judgment enforcing the payment of the tax bills, there should be specifications separating the amount assessed on real estate from the assessment on merchandise, capital and money at interest. It is sufficient that this shonld be done in the tax bills on which the judgment is predicated. Ibid. 12. It was a sufficient publication, and such as was required by the law, where it was proved that the notices to taxpayers were published at least four times in the New Orleans Republican, to wit: on the twenty-second, twenty-seventh and thirtieth of August, and on the nineteenth of September, 1872. It was not necessary that there should have been further evidence of the ordinances Nos. 1497 and 1498, than there is in the record. Ibid. 13. The offering in evidence of the several papers in which the notice of publication was made, and the subsequent filing of them, was sufficient to establish what the law required. Ibid. 14. The law relating to city taxes does not require the notices to be published for thirty days. It only declares that no judgment shall be rendered until after thirty days' notice, the notice to be thrice published. Ibid. 15. The city ordinances Nos. 1261, 1262, 1272, of December, 1871, do not make the aggregate taxation exceed two per cent., and this objection, so far as these ordinances are concerned, can not be maintained. 1bid. 16. The city ordinance of the nineteenth December, 1871, and the ordinance of the thirtieth December of the same year, are not in violation of the act of the sixteenth of March, 1870, section 18, which provides that the Common Council of New Orleans shall, once at a regular meeting in the month of December, and not oftener, in each and every year, lay an equal and uniform tax, etc. Ibid. 17. The ordinance of the City Council, seventh May, 1872, levying a third tax in addition to those levied by the ordinances of the nineteenth and thirtieth December, 1871, is not contrary to the statute which provides that taxes shall only be levied once a year in the month of December, because said ordinance rests on the act of the twenty-fourth April, 1872, which authorizes the levying of said tax on an estimate to be made from the tax rolls of 1871. The objection that this act is unconstitutional because retrospective in its effect can not be maintained.
18. The constructing of levees for the protection of lands subject to overflows is not made at the expense of the State treasury. That
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