
    No. 8445.
    Congregation of St. Mary of Mount Carmel Church vs. B. Farrelly and Wm. Hommerich.
    The enforcement of the penalties provided by law against executors for failing to prosent their accounts, to deposit money in bank, and to obtain proper authority to pay debts, is a matter within the sound discretion of tho Court.
    In the case at bar, the Court sees reasons, in the conduct of the executors, not to inflict such penalties.
    APPEAL from Hie Fifteenth Judicial District Court, Parish of West Feliciana. Yoist, J.
    IT. W. Leake, for Plaintiff and Appellant:
    Amendments not changing tho issue will he allowed at any stage of the cause, prior to j udg- . ment. 27 A. 316, 713; 28 A. 627; 32 A- 395.
    An executor who fails to render an account once in twelve months shall be dismissed from office, and pay ten por cent, per annum from the date of the expiration of the twelve months. R. S. 1465 • 9 A. 376; 13 A. 585 ; 33 A. 1021.
    All executors, etc., shall deposit all moneys in one of the chartered hanks of this State, or one of their branches, allowing interest on deposit, if there be one in the parish, * * and shall not pay any claim until a tableau of distribution shall he homologated, or unless ordered by a competent court, and then only to pay such debts as may be ordered for payment, etc., etc. R. S. 1463; R. G. C- 1150; 19 A. 97 ; 32 A. 557.
    
      Wiekliffe & Fisher, for Defendants and Appellees :
    •* Corporations unauthorized by law' or by an act of the legislature, enjoy no public character, and cannot appear in a court of justice, hut in the individual name of all the members who compose it, and not as a political body.” + * C. C. 446; 29 An. 379, Workingmen's Accommodation Bank vs. George T. Converse et ais.; 12 R. 428; 3 A. 541.
    11 The act requiring executors, etc., ‘to deposit all moneys collected by them, etc., under penalty of being condemned to pay the estate 20 per cent, per annum interest on the amount not so deposited or withdrawn without order of court, besides all special damage, and dismissed from office, being highly penal, must be rigidly construed.' ” 7 R. 477; 9 A. 412; H. B., vol. 11, p. 1490.
    •* Where there is no bank paying iuterest on deposits in the parish where tho executors reside and tho succession is opened, they need not deposit the funds, the object of the law being not so much their safety as to render them productive.” 7 R. 477; 11 A. 279.
    “ The right to do what is ordered to be done within a given time exists so long as no action of court or the opposite party has in erveued to conclude that right.” H. 1). verbo Time, p. 1580.
   The opinion of the Court was delivered by

Fenner, J.

Tho object of this suit is to destitute the executors and to enforce the penalties provided by R. S., Sections 1465 and 1463, on the grounds:

1. That they have failed to file accounts once in every twelve months.

2. That they have not deposited moneys in bank, and have paid debts without order of Court.

The petition was originally filed in the- name of the congregation, as if it were a corporation. Exception was filed that, not being incorporated, the congregation could not sue in that form. The exception was undoubtedly good. Workingmen’s Bk. vs. Converse, 29 A. 369; 12 Rob. 428; 3 A. 551; 15 A. 441.

The authority of the Court to allow the plaintiff to amend by substituting the names of the members, is not questioned; but, in granting this permission, the Court should have sustained, and not overruled the exception. This, however, is of slight consequence. Before the amended petition was served, the defendants filed their account, which is the subject of opposition by the plaintiff, In another appeal, now under submission. This should, perhaps, end the case, so far as the failure to account is concerned, for we consider it very questionable whether an action to destitute on this ground could possibly lie, after account filed.' Indeed, it was held by this Court, in one case, that the sole remedy of the creditor, in such case, was to apply to the Court for an order to file account, and only on failure to comply with such order, to demand the removal. Sue. Head, 28 A. 800.

However this may be, it is well settled that the enforcement of the penalties, provided for this and similar defaults of executors and administrators, is a matter within the sound discretion of the Court. We find nothing in this case to call for their infliction. Defendants have filed an account, the fulness and completeness of which is not disputed. The debts paid by them, without order of Court previously obtained, are shown to have been justly due. They are not proved to have made any improper use of succession funds, and are excused for not depositing them in bank, by the fact that there was no bank in the parish. On the whole, we think the demand of plaintiff was properly rejected.

Judgment affirmed, at appellant’s costs.  