
    Succession of Nora.
    sThe sfcat. cf 1 5 March, 1830, s. 1, merely makes lawful certain sales of the property of successions made hy auctioneers. It does .not purport to interfere with the power of courts to direct such property to be sold hy their officers. Under the new organization of the judiciary and of the office of sheriff, hy .the constitution of 1845, such sales shouldbe made hy the sheriff.
    APPLICATION for a mandamus to the judge of the Second District Court of New Orleans. The testamentary executor of the widow Nora represented that, with the consent of the heirs of age and by the advice of a family meeting on behalf of the minors, he had, in his capacity of executor, applied for the sale of the immovable property of the succession, to be made by one Tricou, a licensed auctioneer of the .city of New Orleans: That the judge refused to comply with the petitioner’s demand, that the sale should be made by .the auctioneer named by him, thus refusing to the petitioner the exercise of a right granted to hint by a particular statute, that of having the property administered upon by him sold by a licensed auctioneer: That this refusal is a denial ,of justice which can only be remedied by a mandamus, and that the property in question exceeds the sum of 55300. ITe prayed for a mandamus to the judge .of the court below, .commanding him to comply with the .demand of the petitioner.
    In answer to a rule to show cause why a peremptory mandamus should not .be issued, Canon, J., alleged: That the sale prayed for had been ordered to be jnadeon the 25th of January, 1847, under the provision of the Code of Practice, arts. 760, 767: That it is provided by the Code of Practice, art. 1046, that the sales of property belonging to successions shall be made, in New Orleans, by the register of wills, under the direction of the judge: That by the 1st sec. of the stat. of 15 March, 1830, it was declared that the sales of .such property might be made by auctioneers, “ provided that the executor, ¡fee. .cause the procés-verbal of such sales when made in the parish of Orleans, to be recorded in the office of the register of wills, and when made in any other parish ofthis State in the office of the judge ;”that since the re-organization of the ¿he judiciary system, and the suppression of the office of register of wills, the right to employ an auctioneer to make such sales must be considered as done .away with, since the procés-verbal of the sales can no longer be recorded in the .office of the register of wills.
    
      Le Gardeur, for the petitioner.
    A mandamus is the only means by which the plaintiff can obtain redress. The judge alleges that he has ordered the sale prayed for, to be made by a competent officer. But that officer is not the one we have designated, as we had a right to do, and the order given is not the order prayed for.. This order is not final but interlocutory, being rendered on matters incidental to the settlement of the estate; and such judgments are not appealable from, unless they'produce an irreparable injury. In this case, not only jg there I10 irreparable grievance, but there is not even a grievance so far as the succession is concerned, as it will certainly not be contended that the parties interested can by any means be aggrieved, or injured, simply because the sale would be made by the sheriff. Indeed the only party aggrieved is the executor, who is denied the exercise of a right which is secured to him by law; but as the succession is neither aggrieved nor injured, the consequence is plain that the executor had no right, for the redress of his individual wrongs, to appeal from that judgment, had it been appealable from. The Code of Practice, art. 831, provides that a mandamus may issue at the discretion of the judge, even when a party has other means of relief, if the slowness of ordinary legal forms is likely to produce such a delay, that the public good and the administration of justice will suffer from it.
    It is not contended that the sheriff had no right to sell succession property. But cap this general authority destroy the right vested in executors by a special law of the land ? In other words, can a special law be repealed by implication ? This is the only question before the court. Until 1830, the probate judges in the country and the register of wills in New Orleans were the only persons authorised by law to make sales of the property. Code of Practice, art. 924, no. 5, and art. 1046. In 1830, the legislature passed an act, the first section of which provides “ that it shall be lawful for testamentary executors, administrators and curators to cause the property, real and personal; of such succession or successions as may be under their administration, to be.sold by any commissioned auctioneer, and such sale or sales, so made, shall be good and valid in law.” So that, previous to the abolition of the parish and probate court system, the law with regard to the sale of succession property stood thus: The power to sell was vested in the probate judges in the country and the register of wills in New Orleans, and this was the general rule on the subject; but under the 1st section of the statute of 1830, executors, administrators and curators, had a right to cause the property under their administration to be sold by any commissioned auctioneer; and this was the exception to the general rule. How does the law stand on this subject now ? The .sheriff, if the reasoning of the lower court be correct, and we have no interest or disposition to question its soundness, is the officer who has superseded the register of wills, so far as the sales of succession property are concerned. The power to sell such property would then vest in him, under the general rule of law. But as no change has taken place ip our system of laws relative to the settlement of successions, although the ministerial officers, through whose agency it was carried into effect may have been changed, the consequence is that the exception in the 1st section of the act of 1830, which existed before the adoption of the new constitution, and w.as a limitation of and a restriction upon the general powers of the register of wills, still continues to exist as an exception to the general rule, under which, in the opinion of the lower court, the sheriff is now authorized to make the sales in question. Registers of wills are no longer known to our laws; but the duty was imposed on auctioneers to file a procés-verbal of the sales made by them in the register’s office, because the latter was the clerk of the probate court; and this formality can easily be complied with now, by recording the procés-verbal in the clerk’s office of the court which orders the sale. Besides, the new constitution, art. 142, provides that “all laws in force at the time of the adoption of this constitution, and not inconsistent therewith, shall continue as if the same had not been adopted and the statute of 1830 is certainly not inconsistent with the constitution which vests no new powers in sheriffs, but simply provides (art. 83) that “ a sheriff shall be elected in each parish by the voters theof, for the term of two years.”
    If it be correct that no express repeal of the act of 1830 can be found; that there is no contrariety between the general power to sell succession property as claimed for the sheriff by the lower court, and the special power vested to the same effect in auctineers by the statute of 1830 ; and lastly, that the statute under consideration is not inconsistent with the new constitution, the conclusion must be that the statute is still in force, unless abrogated by considerations of a general character. And this brings ns to the only question before the court, that is, whether a special law can be repealed by implication.
    Zacharia;, “ Gouts de Droit Civil Francais,” vol. 1, p. 31, § 29, says: “ Toute fois, l’abrogntion tacite ne peut résulter que d’une contrariété formelle; daq le doute, ilfaut, en la rejetant, interpreter la loi nouvelle de maniére it la mettre en harmonie avec la loi antérieure. Posteriores leges ad priores pertinent, nisi contraries sint.- D’un autre colé, une loi sptciale n’est pas tacitement abrogtepar une loi genérale posttrieure. Lex specialis per generalem non abrogatur.” Pothier, in his Pandects, title De Legibus, sect. Í, art. 5, no. 25, speaks thus : “ Cum duax leges contrarios videntur, quarum- altera specialiter de casu de quo judicandum aut respondendum est, disponit, altera generaliter duntaxat disponit,- prsevalere debet illa quce specialiter disponit.” Merlin, in his “ Répertoire de Jurisprudence, Vo. Loi, §11, art. 3, says : “Les lois spé cíalessont-elles abrogées do plein droit par les lois générales pestérieures ? Non.” The Court of Cassation, in a decision dated August 8th, 1822, (Journal du Palais 17, page 561,) held that “ en principe,-íes lois et róglemens relatifs á desinatieres spéciales nepeuvent étre considérés comme abrogés par des lois genérales postérieures, qu’autant que célles-ci coritiennent des dispositions /ormelles et expresses d’abrogation.” The same learned tribunal, in another decision of July 13th, 1826', held the same doctrine, but in a different language. They said: Les lois générales ne dérogent point tacitement auxlois speciales, qui, par leur nature meme, conservent leur eífet tantqu’elles no sontpas spbcialemcnt abrogtesj” Journal du Palais, 20, p. 688.
    Sir Wm. Blackstone, in his celebrated Commentaries- on the laws of England. at page 89, of vol.-l.st, says:
    “ Where the common law and a statute differ, the common' law gives place to-the statute, and an old statute gives place to a new one. And this, upon a gen-ex-al pi'inciple of univei-sal law, that “ leges posteriores priores contrarias abrogant;” consonant to which it was laid down by a law of the twelve tables at Rome, that “ quod populus postremum jussit, id jus raium esto.” But this is to' be understood lohen the latter statute is couched in negative terms, or where its matter is so elearly repugnant, that it necessarily implies anegative. But if both acts-be merely affirmative, and the substance such that both may stand together, here the latter does not repeal the former, but they shall both have a concurrent efficacy. If by a former law an offence be indictable at the quarter sessions, and a latter law makes the same offence indictable at the assizes, here the jurisdiction of the sessions is not taken away, but both have a concurrent jurisdiction, and the' offender may be prosecuted at either,- unless the new statute subjoins express negative words, as that the offence shall be indictable at the assizes, and not elsewhere.”
    
    In the case of De Armas, (10 Mart. p. 172,) the Supreme Court adopted the px-inciples recognized by the authorities above quoted, and held: “ That a particular law is not repealed by a subsequent genei-al law, unless there be such repugnancy between them, that they cannot be complied With under any circumstances..” But nowhere is this principle more cleax-ly and forcibly illustrated, than in the recent case of the Bank of Louisiana v. Farrar and wife. 1 Ann. Rep. 49. Mrs. Farrar had bound herself jointly and in solido with her husband, in favor of the bank, under the 32d section of the charter gx-anted to that institution in 1824. When sued upon that joint obligation, she resisted the claim, on the ground that the 32d section of the charter was repealed by art, 2412 of the Louisiana Code, which prohibits a wife from binding hei-self for her husband. But your honors thought differently; and his honor, the chief justice, who delivered the opinion of the court on that occasion, said: “ In Louisiana, special laws form a large portion of our legislation. It is one of the evils of the times. An effort was made in the late convention, to place some i-estraint on what was felt to he an abuse in legislation; but it failed, and special legislation is a pai-t of our system. We cannot hold this section to be repealed by what we consider an implication. For the exception of the 32d section is no more in contradiction with art. 2412, than it was to the laws in reference to which it was passed; the relation it bears to each, is to all intents and purposes, identical. It was an exception to the former law; it remains an exception to this.”
    The case of the Bank of Louisiana v. Farrar and wife, is alone decisive of this. In that case, the wife resisted the plaintiff’s demand, on the ground that the special law of 1824, was repealed by the general law of 1-825. But the court thought differently, and decided that the exception in the special law of 1824 was no xnore in contradiction with the general law of 1825, than it was with the law in referonce to which it was passed; that it was an exception to the former law, and remained an exception to the latter. In this case, the execu-' tor claims the exercise of a right vested in him by a special law of 1830? and that;' right is denied to him by the learned judge of the Second District Court, because, in 1845, the office of register of wills was abolished, whence he concludes that the sheriff has the right to sell suecessionproperty, under the general' powers of his office. But it will be decided, in accordance with the principles laid down in the case of Farrar, that tho exception in the special law of 1830 is no' more in contradiction with the laws of 1845, than it was with the laws in reference to which it was passed; that it was an exception to the former laws, and remains an exception to the latter.
    
      Chymes, contri.
    The plaintiff in his anxiety to prove that he has no other remedy but that of mandamus, has succeeded in showing most clearly, that he is not entitled to that writ. He admits in his argument that there is not only no “ irreparable grievance,” but no grievance at all, “ so far as the succession is concerned; as it will certainly not be contended that the parties interested can by any means be aggrieved or injured, simply because the sale would be' made by the sheriff': indeed, the only party aggrieved is the executor, who is denied the exercise of a right secured to him by law,” etc. From this we see' clearly the issue tendered by the petitioner, and the true grounds of his complaint, and what he calls a denial of justice.
    It appeal's by the answer of the honorable judge of the Second District Court, that the order for the sale prayed for by the plaintiff, was actually grant-' ed on the 25th of January, 1847. The return of the judge is not traversed, nor its truth denied; it must, therefore, be taken as true. It is distinctly admitted that the succession, and those interested in it, are in no manner aggrieved or' injured by the nature and tenor of the judge’s order ; and that the plaintiff, in his representative character of executor, in which' capacity the whole proceedings in the' cause were conducted, has sustained no injury. The whole cause' of complaint is, that the plaintiff has not been permitted to exercise his arbitrary caprice in' the choice of an agent to execute a judicial judgment or decree, in opposition to judicial discretion, fairly and clearly exercised. The object of the struggle is to deprive the court of all discretion in the choice of the officer who-is to execute its mandates and judgments, and to vest it in the arbitrary will of an irresponsible suitor, one acting (as in this case)1'not in his own right, but irr a fiduciary' capacity, under the saction and by the appointment of that very court, immediately amenable to it, and considered in law as administering in all respects under its supervision and control.
    From these facts, and others appearing in this case, we submit, in support of the cause shown by the-judge of the Second District Court, the following propositions':
    1. In the language of Lord Bacon, that “ a mandamus is a writ commanding the execution of an act where otherwise justice would be obstructed, or the* king’s charter neglected, issuing regularly only iff cases relating to the public' and the government; and is therefore termed a- prerogative writ.” 4- Bacon, page 498 — vei'bo Mandamus. And, in the language of the Code of Practice, that “the object of this order (mandamus) is to prevent a denial of justice, or the consequence of a defective police,” and should be issued where the Jaw has assigned no relief by the ordinary means, and- where justice and reason require that some mode should exist of redressing a wrong or an abuse.
    2. That no obstruction of justice has taken place, the order prayed for having been granted. That no injury has resulted either to the thing,- nor the persons interested in the thing-over which the court exercised jurisdiction in thee course of the proceedings complained of, and no injury or damage caused to the' immediate party in his representative or fiduciary character, in which capacity alone he was before the court; nor any actual damage'or loss to him iw his individual capacity.-
    3- That the exercise of a sound discretion by the court, is a power and a’ right inherent in all courts, unless forbidden by positive law, and more especially in courts of probate, which are invested by law With the supervision over the administration of estates in the hands of trustees, such as executors, administrators, tutors etc. etc.; and that the exercise of such discretion involves nothing in relation to the public and the government, in the true sense of the authors quoted, and is nothing more than ordinry judicial action upon matters coming before the courts, in the exercise of their acknowledged jurisdiction.
    
      4. That there is nothing in this case in relation to defective police. There is no wrong to redress; for it is expressly admitted that 1he parties interested have suffered none. There is no abuse to correct; for the privilege contended for by the plaintiff is a bare naked right, uncoupled with any perceivable interest — not granted to him by any statute, positive in its terms, passed upon any considerations of a public nature, but subject to judicial interpretation and judicial discretion.
    5. That the statute of 1830, quoted by the plaintiff, (Bullard and Curry's Digest, p. 2,) is directory only in its terms; it creates and vests no positive and absolute rights in the persons named in the statute, independent of all judical interpretation, discretion, or control: it does not, in direct terms, exclude judicial action ; and this can never be done by implication — by the general terms of the law: it cannot be conclusively inferred that it relates to the sales of property to be made by the judgment or order of the court. In its terms it would seem to relate to the extra-judicial action of the executor, curator, etc. To suppose that a statute contemplated judicial action as necessary to the accom plishment of an act — -that it should be done by virtue of a judgment or decree of a court, and at the same time deprive that court of all power or discretion as to the organ or means by which its judgement should be executed, and vest that power in a. party to the suit, would be to suppose a case that might be within the scope of legislative power; but it is a conclusion which no court should arrive at by implication. It would render the court the mere organ of the party to the proceedings — -invest him with an arbitrary authority, to be exercised ex parte, and without opposition, destructivo of I he legitimate power and authority of the court, and tending to disorder, fraud and numberless abuses. When the powers of the judiciary are necessarily called into act ion, for the accomplishment of any lawful purpose, they are necessarily seized of the whole subject — have a right to act upon it in all its parís- — lo look lo the execution, as well as the rendition of their judgments, unless restrained by some clear, positive, and prohibitory law. No such law is to be found in the statu!e quoted and relied on by the petitioner. If (he court had any discreiion in the matter, (hen a mandamus will not be granted (Louisiana. College v. The Slate Treasurer, 2 La. 394); nor is a mandamus in this case at all necessary to aid this court in its-appellate jurisdiction, as contemplated by (he (lode of Practice, art. 838.
    (i. The privilege claimed by the plaintiff has no appreciable value; it could not come before this court, nor be considered by it, in the «exercise of its appellate jurisdiction. It has no permanent-, fixed, or useful existence. It may be used capriciously, or it may not be used at all, and, if not claimed or used, the matter would belong to the court, which is (he strongest argument to prove that the court is not wholly without, power or discretion in the matter. For all these reasons we believe that this is not a case for a mandamus.
    Supposing all these objections to (lie remedy by mandamus to be overruled, and the court in possession of the cause, what judgment should be rendered ?
    1. The probate system and all its machinery, as it exisled prior to the adoption of the new constitution, has been abolished, or modified by the new constitution, to such an extent as to repeal or render inapplicable many of the statutes passed iu relation thereto. In relation to the particular statute relied on by the plaintiff, the first section declares that the sales to be made by auctioneers shall be good and valid in law, upon an express proviso: that the procesverbal of such sales shall be recorded in tne office of the register of wills, when made in the parish of Orleans, and in the office of the parish judge, when made in any other parish. The office of register of wills in the parish of Orleans is abolished, and so are (he parish judges throughout the State; and, neither the conslitut-ion, nor any law passed under it, has endowed any other office or officer with all the faculties or functions exercised by either the register of wills or parish judges; yetthe proviso of the statute is clear that such sales shall only be valid in law upon that condition.
    But suppose it should be considered that by necessary implication those duties and functions have been transferred to some other officer, and that a recording in some other office would satisfy the exigency of the law. What office is this to be ? Surely it would be for the judiciary to decide this, upon a fair and legal interpretation of the constitution and laws; and travel round the whole circle of this case, and we must come back to this point of judicial interpreta, tion. In the present state of the law there is no escaping from it; it must be. gin in the inferior court, for this court has no original jurisdiction. The cor. rectness of the judgment of a court of the first instance, pronounced on matters of law arising in the course of judicial proceedings, and submitted to its decision, connot be inquired into on a mandamus; and if the powers of this court, in the exercise of its ordinary appellate jurisdiction, will not reach the case; if the thing claimed has no value, or none but an imaginary one which will not support the jurisdiction of this court, it only proves that it is a ease in which the constitution has not provided the means of revising such judgments.
    By this statute it is made the duty of the executor, curator, &c. &c., or some one else, to cause the proces-verbal of sales to be recorded. Suppose the executor or curator fail to do it? Suppose no person else takes the trouble to do it? The statute makes it a condition precedent to the validity of the sales, that, the recording should take place. Judges of the District Court cannot be expected to devote their time to watching the conduct of suitors, of executors, curators, &c., or to the performance of any extrajudicial functions; this is forbidden by the constitution. If the law invoked by the petitioner be in force, and gives him what he contends for, the absolute right, independent of all judicial power or action, to the exercise of this privilege, the validity of all sales of this nature must depend upon the conduct and will of executors, administrators, curators, &c. and great confusion, frauds and litigation must be the natural consequence. Such a state of things must be sufficient to open the door and let in the judiciary to act upon the subject, and its judgments must be considered as judgments in the discharge of their ordinary judicial functions, and to be revised and corrected in the ordinary manner, and where this cannot be done, to remain final, as in other cases.
    2. We take it for granted, that the sheriff, by virtue of his office, is the proper person to execute all orders, judgments, decrees and mandates of the several courts of justice of this State. That this is the peculiar, appropriate, universal and necessary attribute of his office, independent of any special statute or law so declaring it. That a judgment, order, or decree of a district court, directing or ordering a sale of property, is, in every sense of the word, a judicial act or judgment, done or rendered by such court; and that the execution of such a judgment or decree would fall directly within the legal and natural attributes and functions of the sheriff’s office. That all special legislation, by which any part or portion of the duties, powers or rights of the sheriff are transferred to any one else, is an exception to the general rule; and, if the person to whom any such powers, rights and duties are transferred be an officer of the State, it is to all-intents and purposes a transfer of the duties and powers of one office under the State, to be held and exercised by another. The 126th article of the constitution of the Slate declares, that “no person shall hold or exercise at the same time-more than one civil office of emolumont.” The act of 1830, authorizing auctioneers to execute the judgments of the courts, is in conflict with this article of the constitution, and, of course, repealed by it. Auctioneers are offi - cers of the State — they are appointed by the governor, by and with the advice and consent of the senate — and commissioned as such, and their duties are regulated by law; they are the collectors of a considerable portion of the revenue of the Slate; and it is not competent to the legislature to get round the true meaning of the constitution, by cutting up and parceling out the legitimate and lawful powers, duties, and attributss of one office, and accumulating and adding them to another; and thus doing indirectly, that which it would be unconstitutional to do directly. No court of justice would be justified in sanctioning such a course, under the actual legislation on the subject; nor will this court, by mandamus, compel a district judge to act as in the case of an acknowledged, valuable, indisputable and useful right, in a case where the construction of the constitution and the statutes of the State are called in question, and where his judicial discretion is necessarily called into action.
    3. The judge of the Second District Court returns, that the order for the sale, as prayed for by the plaintiff, has been granted; but, that he has ordered it to be made by the sheriff of the parish of Orleans. In this he has exercised a sound legal discretion, upon every principle of public order, safety and convenience. To execute the j udgments and decrees of the courts of justice, is the natural and almost exclusive duty of the sheriff, as laid down and regulated by law. He acts under an oath of office, and a heavy official security. His office is in immediate contact with all the courts of justice, and he is under their easy and constant superintendence; and, asan officer of the courts, he is subject to their authority by summary process. All the records, documents and proceedings in relation to the business of the courts; are kept together in one office, and of easy access to the public. Being an independent public officer, and his duties regulated and prescribed by law, and the most summary remedies provided to restrain him within the bounds of his duty, and to punish him when he exceeds them, the public business is more safe in his hands; and his fees or compensation being fixed and regulated by law, all temptation to bargains and collusions with executors, administrators or curators, for a share in commissions and emoluments is done away with. He is elected by the people of the parish and is amenable to them; and in addition to all the other checks and securities created by positive law, the slightest violation of duty is subject to die action of public opinion through the ballot box, at short periods. The struggle on the part of the petitioner in tilis case is for the exercise of an arbitrary privilege or will, that has no intrinsic value to him in the fair and honest exercise of his functions as.executor. Its only object is to enable him to distribute his patronage, and the emoluments arising from sales of this nature among die auctioneers of the city, at his pleasure. Thisis a dangerous power with which to invest individuals, who are parties to judicial proceedings — who are mere trustees, guardians, or administrators of property for others. It is dangerous to the public to entrust the execution of judicial decrees or judgments to many persons who aro not under the immediate eantrol of the courts, who act under no official responsibility, and who owe their employment and its emoluments to the patronage or choice of one party to a suit or judicial proceeding. As to the emoluments arising from business of this nature, if they must accrue, it is certainly better that they should go to the sheriff than to any one else. His office is essentially a public one — he is not supposed to be engaged in any private business, trade or calling — it is wholly for the public — it is a very expensive one, and the profits or emoluments are divided among a host of deputies, clerks and employés, whom he is obliged to maintain for the public service, whether the emoluments of his office be great or small, and being thus distributed contribute to the support of a large number of persons and famlies who are in need of such employments. Auctioneers, on the contrary, are not only officers of the State, but they are also private merchants, traders and dealers — the whole trade and commerce of the country is open to them, they are subject to all its vicissitudes, from the accumulation of large fortunes to bankruptcy. They employ no more clerks or persons than are necessary for their private business; they contribute to the emolument or living of no one beyond the exigencies of their own interests.
    They are appointed by the governor, and in proportion as you add to their functions and emoluments, and introduce them into the administration of justice., you add to executive patronage and power, and take away from the people that power and authority over public officers, and weaken their accountability to them, which it is clearly the object of our new constitution to create and establish upon an effectual and lasting basis.
    The auctioneer, not being an officer of the courts of justice, but owing his employment to the good will of a party litigant, is beyond the reach of the summary process and proceedings of the court; in many cases he could only be reached by the ordinary and tardy process of the law. He is without the restraint of an approaching popular election and accountability to the people; he may trust to explanations, and appeals to executive clemency, mercy or favor, fora re-appointment; when appointed by partnerships and associations in commerce, he may be the mere holder of a sinecure commission, and all the public business placed in his hands be entrusted to the management and control of persons not elected by the people — not even appointed by the executive — but private merchants and traders, wholly irresponsible to the public, and in whose appointment and induction into the most important public concerns, the public has never been consulted, directly or indirectly; or he may bring his commission as so much capital into the partnership, thus trafficing in executive patronage, and advancing his private fortune at tlie hazard of the public good.
    From all these considerations it is submitted that the judge of the Second District Court has exercised a sound, legal and just discretion in this matter, and that the mandamus asked for should be refused.
   The judgment of the court was pronounced by

Eustis, C. J.

The executor of the last will of the widow Nora applied to the Second District Court of New Orleans, for the sale of the property of the succession, and prayed that the sale might be made by an auctioneer designated in his petition. The judge considering that the sale ought to be made by the responsible officer of the court, who is bound by law to execute all its orders, directed it to be made by the sheriff. The executor has applied to us for a mandamus which was granted nisi, and on the return we have the reasons for the action of the district judge, which are conclusive. This is no case for a mandamus. The law of 1830 merely makes lawful certain sales made by auctioneers. It does not even purport to interfere with the pow'er of courts to direct the property of successions to be sold by their officers, who, for grave reasons, courts may consider ought to be entrusted with them, and still less to take away that power. Und.er the new organization of the judiciary, and of the office of sheriff, by the constitution of 1845, the district judge was certainly right in directing the sheriff to make the sale of the property of the succession.

The application for a mandamus is dismissed, with costs. 
      
      See .stat, of 10th March, 1847, ch. 79, relative to judicial sales, and the supplemen;ary act, as it is termed, of 7 April of tho same year, ch. 96.
     