
    
      TAYLOR vs. HOLLANDER.
    
    Appf,\l from the court of probates ot the parish and city of New-Orleans,
    Wieii an es. “mThisoLnt ac-lo“g'ng “h,?® ^demanded for-
   Pouter, J.,

delivered the opinion of the court. This cause presents two questions. '

1. Whether a creditor who is not put on the bilan of an insolvent, can bring a separate suit against him before the proceedings are homologated.

2. Whether the executor of an estate, who becomes insolvent, is suable before tlie court of probates, or that where the concurso is pending.

I. The creditor who is not put on the hilan may bring a separate suit, because he is not a party to the proceedings, and is presumed to be ignorant of them; but as soon as he is informed by the answer, that the concurso is form* ed, the cause must be transferred to the court 1 "here that action is pending, and be cornu-lated with it. The neglect of the debtor to jnser| (he creditor’s name in the bilan, may be cured at any time before the tableau of distribution is homologated. The law has conceived it a less inconvenience that the creditor should be deprived of the right of voting for syndics, than that separate suits should be carried on at the instance of particular creditors. Salgado,

II. The court of probates has exclusive jurisdiction of suits brought by minors against executors for the settlement of their accounts, and the payment of the sums which may be due on that settlement. But the law provides that when an insolvent has filed his bilan and obtained an order for a stay of proceedings, all actions must be cumulated before the tribunal where the suit in concurso has commenced. To reconcile these apparent contradictions, it is necessary to distinguish. The rule that all suits should be cumulated before one tribunal, must be understood where the insolvent is sued in his own right, and not as the representative of others. Where the object of the action is to make him account m his capacity of tutor, curator, or executor, . and hand over property existing in kind which belongs to those he represents, there the probate court does not lose its jurisdiction. The judgment cannot affect the creditors, for the property in his hands belonging to others, did not, nor could not, make a part of that ceded. It is, therefore, not necessary it should be carried contradictorily wish those who have claims against him in his own right.

There is some difficulty in applying these principles to this case. The plaintiff prays that the defendant may render his account as executor, and deliver up certain notes and obligations belonging to the estate. Of this claim we think the court of probates retained jurisdiction, notwithstanding the suit in con-curso ; the petition, however, goes further, and prays for judgment against the defendant for a sum of money. Of that claim, the court of probates after the failure of the executor, could not take cognisance; it could not after that event give judgment against him in his own right. Such demands must be settled contradictorily, with the other creditors in the court where the proceedings for insolvency t. are carried on. But the joining this demand to the others in the petition, did not take from the court of probates the right, of adjudi-eating on the other matters therein contained, of which it had jurisdiction; it should have proceeded with the cause and decided on those parts of the petition of which it could take cognisance, and rejected the rest: it consequently erred in sending the case before the district court.

Hennen for the plaintiff^ Peirce for the defendant.

It is therefore ordered, adjudged and decreed, that the judgment of the court of probates be annulled, and reversed; and that the cause be thereto remanded, to be proceeded in according to law, the appellee paying the costs of this appeal.  