
    
      [Appendix to ike preceding case of Desormes' Heirs v. Desormes' Syndic.]
    
    Collins v. Pease’s Heirs.
    
    An attorney for absent heirs, or a defensor appointed by the court to defend the rights of absentees in a suit against them, ought not to be permitted to surrender any lawful means of defence on their part, to the injury of those he represents. — 18 L. 282, and cases there noted.
    And where from want of skill or inexcusable negligence on the part of the defensor, by consenting to the introduction of improper testimony in favor of the adverso party, &c., it will form a proper caso for the application of the law, authorizing this court to remand causes to be tried de novo, when in its opinion justice requires such a measure. '>
    
    Appeal from the court of probates, for the parish of West Feliciana.
    In this case, Oollins had been curator of the vacant estate of Gamaliel Pease, deceased, and while it was in a course of administration, he presented [117] a claim of his own in his own right, and sued to recover it contradictorily with the attorney appointed to represent the absent heirs.
    The attorney pleaded a general denial and put the plaintiff on strict proof of his demand; and he further pleaded payment and prayed that the demand be rejected.
    On the trial the plaintiff offered as evidence of his claim several depositions, which were allowed to he read without objection. No evidence was offered or defence made on the part of the defendants who were absentees. There was a judgment for the plaintiff, allowing the principal part of his demand, and the attorney for absent heirs appealed.
    
      Mc Caleb for the plaintiff and appellee.
    
      Watts and Lobdell for the appellants.
    
      
       This case was decided at the June term, 1827, and omitted in Martin’s Reports. The court was then composed of Judges Mathews. Martin and Porter. The case is now published for the first time.
    
   Mathews, J.

delivered the opinion of the court.

This is a case in which a curator appointed to the estate of the deceased, as being vacant, caused proceedings to he commenced against the absent heirs, for the recovery of claims which he alleged to hold in his own right. A defensor was appointed to protect the rights of the absentees, who took on himself the trust; and after the form of a defence judgment was rendered by the court below in favor of the plaintiff, from which the real defendants have appealed.

The record shows, in every step of the proceedings taken in the court below, want of skill or inexcusable negligence on the part of the defensor, by consenting to the introduction ‘of improper testimony in favor of the appellee, and thus compromising the true interests of the defendants, in abandoning the just and legal defences of the cause.

We are of opinion, that a person appointed by a court to defend the lights of absentees in a suit against them ought not to he permitted to surrender any lawful means of defence on their part, to the injury of those whom he represents. We think the [¡resent a proper case for the application of the law [118] which authorizes this court to remand causes to he tried de novo, when according to our opinion justice requires such a measure.

It is therefore ordered, &c., that the judgment of the coux-t of px-ohateshe avoided, reversed and annulled; and that the cause be remanded to said court to be there again tried. And it is further ordered that the appellee pay the costs of this appeal.  