3d. But as matter of law, the jurisdiction of | the court which pronounced the judgment pleaded in bar was a naked usurpation. It had no authority whatever ratione materiæ. Its decision was therefore wholly void, and required not to be excepted to by plea. Louisiana Code of Practice, art. 333.

And consent could not aid or give jurisdiction in such case. Ibid. art. 92; 1 Martin, N. S. 704; 14 La. Rep. 179.

Such adjudication is void. 1 Pet. 340; 2 Pet. 169; 13 Pet. 511; 12 Pet. 719; 3 How. 762.

The Code of Practice was adopted on the 2d of September, 1825, and in force throughout the State on the 2d of October, 1825. 11 La. Rep. 515.

To like effect is the case in 4 La. Rep. 539, and 10 La. Rep. 219, and many more could be cited.

The case in 5 La. Rep. 355, which might seem to conflict with the previous decisions, refers in its judgment to an adjudication by the District Court made before the Code of Practice.

Mr. Coxe, for the appellee, argued the case orally, and Mr. Mayer filed an elaborate brief. The reporter selects the following, however, from the brief of Mr. Downs, because it enables him to state the points upon that side rather more succinctly.

The following points are submitted against the bill, and to sustain the plea and answer:

1. The District Court of Louisiana has jurisdiction, and was competent in law to decide Before this code the probate powers were such a case, with the consent of the parties, somewhat distributed among the courts, and and the judgment so rendered was valid. That not well regulated or defined. The reported court was one of general jurisdiction, extendcases, therefore, before the year 1825, furnishing to "all civil" cases above a certain amount. no rule as to the jurisdiction involved in the The language is clear and unequivocal: "The present inquiry. See Tabor v. Johnson, 3 jurisdiction of district courts, excepting the Martin, N. S. 674. Art. 924 of the Code of court of the first district, extends over all civil Practice provides, that "Courts of probate cases where the amount in dispute exceeds fifty have the exclusive power, 2. To appoint tutors dollars." Code of Practice, art. 125, note 1, and curators for minors, etc. 4. To appoint and the cases there referred to; Tabor v. Johncurators to vacant estates. 5. To make inven- son, 3 Martin, N. S. 675; Foucher v. Caraby, tories and sales of the property of successions 6 Ib. 550; Dangerfield v. Thruston, 8 Ib. 241; which are administered by curators, etc. 9. Donalson v. Rust, 6 Martin, 261; 12 Ib. 235. To compel such administrators (all such) to The reasoning of the Supreme Court of render an account when required," etc. Louisiana in these cases is much strengthened by a paragraph in the 924th article, defining the jurisdiction of the courts of probate, which, it is contended, have exclusive jurisdiction of such cases. This paragraph, the fifteenth, provides that whenever the parish judge who is judge of the Court of Probate, is in any way disqualified from trying such cases, "the District Court or parish judge of the adjoining parish shall have jurisdiction thereof."

And by the Act of the Legislature of March 25th, 1828, sec. 14, it is enacted, "That all suits brought against curators and other administrators during the time of their administration or curatorship shall, after the expiration of said time, and even after said curators and administrators have rendered their accounts to the heirs, be and remain in the Court of Probates," there to be continued and tried, etc. See the act in Code of Practice, ed. 1839, pp. 194-198, or Bullard and Curry's Digest.

So stands the State law, as to the exclusive jurisdiction in the Probate Court of the matters in the suit pleaded in bar, as adjudged in the District Court. The jurisdiction of district courts is shown in art. 126 of the Code of Practice, and that of the Parish Court in art. 128.

In the case from the District Court, 6 Martin, N. S. 212, it was adjudged by the Supreme Court of Louisiana, in 1827 (after the Code of Practice was in operation), that the 165*] Probate Court *had the exclusive jurisdiction to compel the defendant, whose office of tutor had expired, to account and pay over money in his hands. And that the District Court was without such authority, and thereupon dismissed the case.

But the case in 7 Martin, N. S. pp. 105–107, decided in 1828, is precisely the case pleaded in bar. The suit was instituted in the Probate Court against the curator of a minor. The judge recused himself, and the suit, by consent of parties, was transferred for trial to the District Court. Held, that under the old code, where such consent was given, the adjudication was not void; but by the Code of Practice the Probate Court alone had power to try such cases, and consent of parties could not confer the power on the District Court. Judgment therefore annulled.

*It may well be doubted whether [*166 courts of probate have jurisdiction on questions of tort, contract, or fraud and dangers, as in this case. McDonough v. Spraggins, 1 La. Rep. 64; Hurst v. Hyde, 6 Ib. 451.

2. The case was in fact tried by the judge of the Court of Probate, who was called into the District Court for that purpose; the process, depositions, and all the proceedings were in the Court of Probate up to the moment of trial, when it was by consent of parties transferred to the District Court for the purpose of a trial by a jury.

This case, then, was in fact rather a reference of an intricate and long account to experts or arbitrators, under the provisions of the laws of Louisiana, and their award or finding or report could be objected to or set aside only in the way pointed out by law. Code of Practice, art. 442, 443, 456.

But even if the judgment was invalid, and the complainants have a right to demand its nullity, they have no right to demand it in the Circuit Court of the United States. This is not left in our system of jurisprudence to general principles or authorities at home or abroad, but in this, as in many other cases, our Legislature has provided a specific and an appropriate remedy, and declared the tribunals in which alone it may be sought. Before the promulgation of the Code of Practice, in 1825, there was some doubt and uncertainty in the laws of Lou

The third paragraph of the 606th article does not weaken this position. The judge of the District Court was not incompetent, either from the amount in dispute or from the nature of the cause, as shown in the authorities pre-hearing thereof, judgment was rendered in viously cited under the first head. If a court of probate had rendered judgment on a question of title, or contract, or fraud, or tort, being a court of special and limited jurisdiction, its nullity might have been demanded; but not so with the District Court, to which the law expressly gives jurisdiction in "all civil

record of the District Court, as to the subjects | sentative of a succession, holding those effects embraced within the issue which seems to have in his representative character. Where the purbeen submitted to the jury by the court; but pose is to charge the executor or curator perthere is no more reason for supposing that is-sonally for fraud, maladministration, waste, or sue to have been limited to the mere fact of the embezzlement of the succession, the Court of validity of the release mentioned, than there is Probate has not jurisdiction, but in such cases for extending it to the whole matter in contro- jurisdiction is vested in district courts. The versy. The petition brought up before the court law appears to have been so ruled in many cases 169] *was the same presented to the Court of by the Supreme Court of Louisiana. A few of Probate covered the whole gravamen of the these will be adverted to. Thus, in the case of complainants' case. All their alleged rights McDonough v. Spraggins, 1 La. Rep. 63, on | and wrongs were embraced within its state- an appeal from the Court of Probates, the point ments and prayers. This is not understood to is thus succinctly stated by Mathews, Justice, have been a suit in equity, nor to have been in delivering the opinion of the court: "This one not cognizable by a jury. The fair pre- suit was commenced against the defendant in sumption is, that the jury had the entire case his capacity of curator, to obtain a judgment before them. No exception to their cogni- rendering the succession which he represents zance of the whole case seems to have been in- liable to pay and satisfy the plaintiffs' demand, terposed or thought of, and they rendered a and also to obtain a decree against him persongeneral verdict for the defendant, to which ally, on the event of the property being inverdict no exception was taken. On other sufficient to pay all just claims against it, grounds it seems inadmissible to suppose that as having illegally administered the succession the case submitted to the jury was limited to of the intestate." The Court, of Probates desome specific fact or inquiry, or that the judg- cided against the application, and the Supreme ment of the court was necessarily founded Court, in passing upon that decision, lay down upon any such fact alone. By the consent or- the law in these words: "As an administrator der, transferring the cause from the Probate de son tort, or as an intermeddler, he may be to the District Court, we find a very compre- answerable to creditors for waste; but those hensive arrangement as to the procurement and pursuits against him must take place in a the forms of the testimony to be used; and in court of ordinary jurisdiction." The next case the entry of the judgment upon the record of on this point is that of Boquette's Guardian the District Court we find the language, "By v. Donnet, 2 La. Rep. 193. There Porter, Jusreason of the law and the evidence, and the tice, pronouncing the decision, says: "It apverdict being in favor of the defendant, it is pears to us this is a demand against the exectherefore ordered, adjudged and decreed, that utor in his personal capacity for the value of judgment be rendered in favor of the defend- the property sold by him contrary to law. In ant." Thus it appears that the mind of the other words, for a tort done by him. We think court was directed to the entire case before it, the Probate Court had no jurisdiction of the and not merely to an isolated question; that its case, and that the petition must be dismissed, judgment has embraced the whole cause as with costs in both courts." In 6 La. Rep. 449, presented upon the petition, the exceptions, and is the case of Hurst v. Hyde, Executor, in which the answer of the defendant, and although the it is ruled, that "the Court of Probates has no proceedings which led to the decision may seem jurisdiction in an action for damages occasioned to be irregular and anomalous, that decision by an act of the executor not legally done in must stand as a judgment, binding between the relation to the administration of the succesparties thereto, unless shown to be void for sion." The last authority which will be cited want of jurisdiction in the tribunal which pro- to this point is one of later date. It is the nounced it, or that it has been reversed and decision of the Supreme Court of Louisiana in annulled by some competent supervisory au- the case of Hemken v. Ludwig, Curatrix, a dethority. This brings us back to the inquiry cision made in 1845, and reported in 12 Robinto the competency of the District Court of inson's Reports, 188, upon an appeal from the the State to take cognizance of the subject on Court of Probates of Ouachita. This was a which its decision was made. petition brought to subject the curatrix for what, in the legal language of Louisiana, is called a maladministration of the succession, corresponding with the term "waste" at the common law. At page 191 of the volume, Judge Simon, in delivering the opinion of the court, thus states the law: "It is clear, the Court of Probates was without jurisdiction to decide on the *matters set out in the plaintiff's [*171 petition in relation to the defendant's personal liability. It is true she is sued as curatrix, but one of the principal grounds alleged against her from which she is said to have incurred personal responsibility is, that she has concealed property belonging to the estate and has converted it to her own use, whereby she has lost the benefit of her renunciation, and has become liable, personally, to pay the debts of her husband. The main object of the suit is to obtain judgment against her individually and

By art. 126 of the Code of Practice it is declared that the jurisdiction of the district courts extends over all civil causes where the amount in dispute exceeds fifty dollars. The natural import of this provision is to render the district courts of Louisiana courts of general jurisdiction in all civil causes not embraced within the above exception. But their powers have not been left to be now deduced for the first time from the language of the article above cited. They appear to have been defined and established by the supreme judicial authority of the State, and plainly distinguished from the functions of the probate courts with reference to subjects like those involved in the present case. The jurisdiction of the courts of probate appears to be confined to cases which seek a set170*] tlement *and an accounting for effects presumed to be in the possession of the repre

such was virtually the judgment appealed | ment, the subject matter thereof, and embraced from. It is not pretended that the property within the proceedings on which it was founded, which she failed to include in the inventory is being identical with those comprised in the bill in her possession as curatrix; but that she in the Circuit Court of the United States for claims the same as her own, and refuses to the Ninth Circuit, now under review, the judggive it up. It is well settled that courts of ment was well pleaded in bar of the claims set probate have no jurisdiction of a claim against up by the bill, and the decree of the Circuit an administrator personally for maladministra- Court sustaining this plea we hold to be correct, tion." and the same is therefore hereby affirmed. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel; on consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court, in this cause be, and the same is hereby affirmed, with costs.

JAMES ERWIN, Plaintiff in Error,

V.

McNeill, Deceased.

Jurisdiction-title under marshal's sale not attacked collaterally by proof of falsity of jurisdictional statements in record-foreclosure of mortgage in U. S. court-administration in Louisiana-erroneous ruling below no ground for reversal if judgment can be supported on other grounds adjudged—when debtor estopped from questioning marshal's authority-appeal, when not waived.

That the petition of Fourniquet and wife presented to the Probate Court, and subsequently transferred to the District Court, contained charges of maladministration cannot be denied. Indeed, with respect to the successions of Mary Bynum, the mother, and Benjamin Bynum, the father, of the petitioner, Harriet, and with respect to the release charged to have been fraudulently abstracted from both the petitioners, it alleged, not merely acts of maladministration, but instances of dishonesty and spoliation extraordinary in character and extent, and claimed of the defendant, in consequence thereof, a heavy personal liability for lands, slaves, and money, unjustly appropriated to his own ALFRED J. LOWRY, Curator of Alexander purposes. From art. 126 of the Code of Practice, we have seen that the jurisdiction of the district courts of Louisiana extends over all civil cases where the amount in dispute is over fifty dollars; in other words, that these courts are courts of general civil jurisdiction. By the authorities cited from the Supreme Court of Louisiana, it is equally apparent that the probate courts are not courts of general, but of special limited jurisdiction; and that from their cognizance are excluded cases of fraud, torts, waste, or maladministration generally, committed by executors and administrators; and that these cases belong peculiarly to the cognizance of the district courts. Such being the conclusions warranted by a review of the law, and the facts of this case being of a character to fall directly and regularly within its operation, it may well be asked what just exception can be taken to the jurisdiction of the District Court in this case? It was not a jurisdiction depending at all upon consent, which, it is said, cannot invest a court with power not belonging to it by its constitution. It was a transfer of a litigation, by consent, from a tribunal confessedly without authority to decide it, to a tribunal in every respect competent to 172*] *take cognizane of the subject matter whose peculiar province and duty it was to take cognizance of it. The exception, at the utmost, resolves itself into matter of form, which the parties were competent to waive and which they did waive; for it is expressly stated upon the record, that the removal of the cause from the Court of Probate into the District Court was by the consent of all concerned. It cannot be pretended that the forms of pleading may not be dispensed with by suitors; as it is certain that the benefit of matters both of substance and form may be lost by mere neglect or omission, where no intention of the renunciation of either is apparent or ever existed. We must conclude that the District Court had rightfully jurisdiction of the cause removed into it from the Probate Court; that its judg-1 ment is and must be binding upon the parties to it, until it shall be annulled or reversed by a competent authority. The parties to that judg

Where a petition for the seizure and sale of the mortgaged property of a deceased person was filed, in the Circuit Court of the United States for Louisiana, against the executor of that deceased person, which petition alleged the plaintiff to be a citizen of Tennessee, and the defendant to be citizen of Louisiana, and the proceedings went on to a sale without any objection to the jurisdiction of the court being made by the executor upon the ground of residence of parties, it is too late for a curator, appointed in the place of the executor, to raise the objection in a State court against a purchaser at the sale, and attempt to prove that the Circuit court had no jurisdiction over the case, because the executor was not a citizen of Louisiduce to disprove it.

ana. Evidence dehors the record cannot be intro

Where a lien existed on property by a spec ial mortgage before the debtor's death, and

the property passed, with the lien at [*173 tached, into the hands of an executor, and was in the course of administration in the Probate Court. the Circuit Court of the United States had jurisdiction, notwithstanding, to proceed against the property, enforce the creditor's lien, and decree a sale of the property. And such sale was valid. The Circuit Court of the United States, having jurisdiction over the parties and subject matter, and having issued an order of seizure and sale, the presumption must be, in favor of a purchaser, that the facts which were necessary to be proved in order to confer jurisdiction were proved. No other

court can inquire into those facts.

Although the marshal did not give the notice required by law to the executor against whom the petition was filed, yet, if the executor was served with process on the spot where the property was situated and where the advertisements were posted up, was present at the sale and named one of the appraisers, and requested that the land and negroes should be sold together, he cannot afterwards im

NOTE.—Jurisdiction of U. S. circuit courts depending on parties and residence. See notes to L. ed. U. S. 640; 2 L. ed. U. S. 435; 36 L. ed. U. S. 579.

General answer waives objections to residence. See notes to 3 L. ed. U. S. 36; 27 L. ed. U. S. 87.

following, he proceeded to make an inventory
of the property composing Alexander McNeill's
succession, which is signed by Hector McNeill,
as executor. The will was probated in Warren
County, Mississippi, on the 24th of June, 1839,
and a copy of it, and the proceedings in the
aforesaid court, recorded in the Probate Court
of Madison on the 1st of July, 1839, one day
taken the ita further than
before the taking of the inventory, but no order
taken on it, further than to record it.

By the inventory and appraisement, the whole property of the deceased in that parish amounted to $245,317.

On the 1st of November, 1839, Hector McNeill presented the following petition: "To the Honorable Richard Charles Downes, Parish Judge in and for the Parish of Madison, State of Louisiana.

"Hector McNeill, heretofore a resident of Warren County, State of Mississippi, respectfully represents to your honor, that he is the owner of large possessions in this parish, consisting of plantations, negroes, etc. etc.; that he is desirous of acquiring residence, and to be entitled to the privileges, etc. etc. of a resident Whether notes were given for all these pay-of this parish; that he is aged thirty-one years; ments, and when they were to be made, the that he is from the State of Mississippi, as record did not show. But by an indorsement aforesaid, and that he desires to pursue plantupon the mortgage under date of January ing in this parish, and to reside and make his 15th, 1838, it appeared that all the payments permanent domicil and home on the Walnut had been made except the fourth. Bayou, parish of Madison, Louisiana. Wherefore, he prays this notice may be duly filed and recorded.