
    D. Lyons, Under-Tutor, &c., &c. v. L. Andrews, Tutor.
    On the death of his wife, defendant qualified as natural tutor to his children. Having married a second time, he left his two daughters with their uncle and under tutor, and moved with the rest of his family out of the State. Plaintiff, the under-tutor, brought suit to deprive the father of his tutorship. The District Court dismissed the suit for want of jurisdiction. But Held: The act of defendant in changing his domicil has not deprived his daughters, who have never left the territorial limits of the jurisdiction, which originally conferred their guardianship upon defendant, of the protection of the-court which conferred such guardianship.
    Sequestration of the slaves maintained, and the appointment of the father as tutor annulled.
    APPEAL from the District Court of St. Landry, Dupré, J.
    
      T. S. Lewis & Porter, for plaintiff and appellant.
    
      Moore, curator acl hoc, for defendant.
   Buchanan, J.

The defendant’s first wife died, leaving four children, two sons and two daughters, issue of her marriage with defendant. He qualified as natural tutor of his children; and plaintiff, their maternal uncle, was appointed their under-tutor. In 1853, about a year before the institution of this suit, defendant (having married a second time) moved with his wife to Texas, taking with him his two sons, but leaving his daughters with their uncle and under-tutor, the plaintiff, who appears to have supported and educated them.

This suit is brought for the purpose of depriving the defendant of the tutorship of his children, on the grounds that ho has left the State without causing another to be appointed in his stead-, that previous to his departure, he failed to render an account of his administration ; that defendant has been unfaithful in his administration; and that he is a man of notoriously bad conduct.

Three slaves of defendant were sequestered at the inception of the suit, and a curator ad, hoc was appointed to represent him in the suit.

In an answer and amended answer, the curator ad hoc pleads the general issue, that the defendant had the right to remove from the State with his children and their property — that before removing from the State, he appointed an agent and attorney in fact, and that the matters and things set up in plaintiff’s petition have heen decided in a judgment which is pleaded in bar of the present action. ■ <

This suit was dismissed by the District Court, for want of jurisdiction. This j udgment seems to have been based upon the provision of the. Code, (Art. 48,) which declares the domicil of the tutor to he the domicil of the minor; and the decisions of the Supreme Court (4 M. R. 715; 5 N. S. 384; 10 Ann. 790,) which recognizes the right of the natural tutor to take minors and their property out of the State. But this case presents peculiar features which take it out of the scope of the cases cited. The under-tutor claims that the father of the minors who are in his (plaintiff’s) charge, be deprived of his tutorship for notoriously bad conduct. ‘ This is one of the grounds for removal applicable to tutors by nature. C. C. 326. Two of defendant’s children and wards have not been removed by the defendant from the State, although he himself has removed from the State. "We think that the act of defendant in changinghis domicil has not deprived his daughters, who have never left the territorial limits of the jurisdiction which originally conferred their guardianship upon defendant, of the protection of the court which conferred such guardianship. And we conclude, that the District Court should have maintained jurisdiction of the suit, so far as the daughters of the defendant are concerned.

Upon the merits, the witnesses all concur in representing defendant as a confirmed and habitual drunkard. Not to mention the details of the evidence of plaintiff’s witnesses on this head, a witness introduced by defendant states, on his cross-examination, that defendant was not always drunk, but would drink whenever he could get where there was any liquor. In addition, several witnesses declare that defendant is a gambler; and not only keeps had company himself, but takes his children to grogshops and gives them liquor. It is proved that his two daughters, who are with plaintiff, and who are jmung women, refused to go with their father to Texas, and claimed the protection of their uncle.

The evidence In the cause, of which the above is a very meagre synopsis, and which is entirely uncontradicted, shows conclusively that the defendant is not a proper person to have the guardianship of young females.

The sequestration appears, also, to have bden a proper conservatory measure.

The three slaves sequestered are but a small portion of the separate property of defendant’s deceased wife ; the remainder having been taken by him to Texas-

It is, therefore, adjudged and decreed, that the judgment of the District Court be reversed; that the defendant be removed from the tutorship of his daughters, Amelia Ann Andrews and Jane Andrews; that the sequestration herein issued be maintained, and that the cause be remanded to the District Court, in order that a dative tutor to said minors may be appointed, and all other necessary and legal proceedings be bad in the premisos.

It is further decreed, that there be judgment of non-suit, as to so much of the demand of plaintiff as relates to the removal of defendant from the tutorship of his two sons, Albert and John, and that defendant pay costs of this suit in both courts.  