
    No. 7270.
    Joseph Malnoury, Admr., vs. Walter Pugh.
    The accounts of an administrator of a succession cannot be revised and re-cast in a suit by him to recover contributions to an alleged deficit from one who has foreclosed a mortgage upon the real property of the succession.
    Appeal from the Fifth District Court of New Orleans. Rogers, J.
    The plaintiff had sold all the movables of his intestate under order of court to pay debts, and the proceeds were insufficient to pay the privileges. Pugh held a mortgage on the real property, and foreclosed by executory process. The plaintiff brought this action to recover of Pugh the sum necessary to pay the residue of the privileges. Pugh, among other pleas, specially excepted that no claim by way of intervention or otherwise had been interposed in his process, and that he was entitled to retain the whole of the proceeds of sale.
    After stating the case,
   Manning, C. J.

This appeal is from the Fifth Court. The testimony is the succession record entire in the Second Court. The defendant insists that to the cash in hand as stated in the administrator’s account should be added twenty per centum thereon which the administrator has been condemned to pay, and a sum must be deducted from the other side of the account which represents commissions wrongfully charged. In other words, he states the account anew. The plaintiff also revises his account and concludes his brief with an amended one, so that we are asked to review, on an appeal from the Fifth Court, the succession proceedings in the Second, and to correct an account therein filed, and after having done that, to take the corrected account as the basis of a suit in the Fifth Court and adjudge the rights of the parties.

It ought to have been needless to say that the whole proceeding is irregular. The parties must finish all contestation over the account in the Second Court, where alone disputes touching it can be heard. Until that is done, the administrator cannot know what sum, if any, he can demand of the defendant. While it is doing, the defendant may be able to shew what he claims to be the fact, viz.: that if the administrator has not had funds herewith to pay the privileges, it is his own fault.

Judgment of non-suit.  