
    FLINT vs. WELLS.
    APPEAL FROM THE COURT OF THE SIXTH DISTRICT, THE JUDGE OF THE SEVENTH PRESIDING.
    Where a suit is commenced by the curator of a vacant estate, on his predecessor’s bond, and the penalty is not claimed, the action will be considered as one to compel the previous administrator to account and pay over such sums, as he may be responsible for in relation to his administration.
    So, if such a suit be brought in the District Court, it will be dismissed for want of jurisdiction, at the plaintiff’s costs.
    The Court of-Probates has exclusive jurisdiction to compel a curator or administrator of a vacant estate, to account and pay over such sums ás he may be found responsible for.
    This suit is brought against the defendant on his security bond, as former administrator of the vacant estate of James O’Daniel, deceased, of which the plaintiff is now the curator, to compel the former to account to him in damages, for the value of property lost to the estate of O’Daniel, by his negligence whilst administering it, and for the hire of a negro woman and child, which he kept for some time in his possession, &c. The plaintiff prays that he be condemnéd in his capacity as administrator, &c., to pay two thousand dollars as the amount of damage due, and caused to the estate of O’Daniel, &c.
    The defendant excepted to the jurisdiction of the District Court to try the case, alleging that the Probate Court was the proper tribunal to sue in, &c. The motion was overruled, and answer to the merits put in. He plead a general denial, and justified his conduct as administrator; also, the prescription of one year to the plaintiff’s action. The jury found a verdict of seven hundred and seventy-two dollars and sixty-two cents against the defendant, and allowing him credit for his fees; also, seventy-two dollars for slave hire.
    
      There was mdgement confirming the verdict. The defeni j 6 , , , . , , . dant moved tor a new trial, which was overruled, and he appealed.
    Flint, for plaintiff, in proprie persona, contended:
    1. That the defendant is liable for the account of sales of the estate of O’Daniel.
    2. It is shown he had collected the greater part of the amount of the estate, and has never settled for it.
    3. He is responsible for the amount of the estate for which he took no notes, and for the hire of slaves that came into his as administrator.
    4. The administrator, when his office expires, is functus officio, and he is personally liable, in damages, for negligence and other misconduct in the management of the estate, and was properly suable in the District Court.
    Boyce, for the defendant, urged:
    1. That the defendant had always been ready to render an account of his administration, and ought not to have been sued.
    2. The Probate Court alone, is the proper jurisdiction before which an administrator is required to render an account. Code of P. art. 924, 7 Mar. JV. S. 105.
    3. The plaintiff charges Wells with negligence, in not taking security and collecting the debts of the estate, and for hire of slaves; he is not responsible for these things, and if he were, it would only be for damages, which are now prescribed by lapse of time. Lou. Code, 2295,3501. 6 Mar. JV. S. 665.
    4. The administrator is not bound for the hire of slaves or interest on money in his hands, whilst keeping the property of . the estate.
   Mathews, J.,

delivered the opinion of the court.

This suit is brought by the curator of one O’Daniel’s estate, against the defendant, who had obtained the administration of it from tbe judge of the Court of Probates of the parish of Rapides, where he was styled administrator of a vacant estate, which, according to law, is to be administered by an officer denominated a curator, the evidence found in the record does not show; he, however, took on himself the management of the estate submitted to his charge, and the present action was commenced by his successor, to compel him to render an account of his said administration. The cause was tried by a jury in the court below, who found a verdict against the defendant, and judgement being thereon rendered, he appealed.

Where a suit is commenced by the curator of a vacant estate, on his predecessor’s bond, and the penalty is not claimed, the action will be considered as one to compel the previous administrator to account and pay over such sums as he may be responsible for in relation to his administration.

for want of j£ the^iahitRNs c°?ts- „ The Court of Probates has diction to corn-Pel a, cm'atOT tor of a vacant count and pay °versuchsums found responSo if such a suit be brought in the District Court, it will be J!~~• — J

The petition sets out the bond given by the administrator, for the faithful performance of his duties; but the penalty appears not to be the gist of the action, as it is not claimed. This is, in truth, a suit to compel the defendant to account and pay over such sums of money as he may be responsible for, in relation to the estate by him administered.

A plea or exception was made in limine lites, to the jurisdiction of the District Court, which was overruled, and the defendant required to answer on the merits. We are of opinion, that the court below erred in its decision on this exception. By the Code of Practice* article 997, it is declared, . ' mat the judges of the Court of Probates shall alone • have power to compel officers, by them appointed, to administer successions, to account and pay over what they may be found te owe. This suit was commenced under the Code of- Práclice, and must be decided according to its provisions; and by these, the judges of the Court of Probates have exclusive jurisdiction in cases similar to the present.

The case of Ryan vs. Young, relied on by the’ plaintiff, and reported in 7 Mar. N. S. 294, has no relation to the present; that case was decided under the old Civil Code. But the decision in the case of Baldwin vs. Rills, (found in the same volume, at page 105), is based on the principles which have directed our opinion in the instance now before the court.

It is, therefore, ordered, adjudged, and decreed, that the judgement of the District Court be avoided, reversed, and annulled; and it is further ordered, adjudged, and decreed, that this suit be dismissed at the cost of the plaintifi in both COUrtS.  