
    Tucker v. The Agricultural Bank of Mississippi.
    No decision willbe given in an action against an absent defendant, where it does nofc appega* from the Record that the curator acL hoc appointed to represent him had accepted the appointment. Thc.case will be remanded to be tried below contradictorily with the curator ad hoc.
    
    Appeal from the District Court of Concordia, Curry, J.
    
      Frost, for the appellant. T. P. Farrar, for the opponents.
   The judgment of the court was pronounced by

Slidell, J.

This litigation cornos before us in a form so irregular, that we are unwilling to express any definitive opinion upon the rights of the parties, find must remand the cause for further proceedings.

The plaintiff obtained an order for executory process upon a judgment obtained in Mississippi. A curator ad hoc was appointed to represent the absent defendants, but Whether he accepted the appointmont does not appeal1. Ho has made no appearance, either in the court below or in this court.

This order of seizure is stated by the sheriff’s return to have been levied on1 three promissory notes, drawn by one Jesse Guice, to the order of the bank, amounting to about §8,000; but it appears from the shei'iff’s testimony that he' never got possession of the notes. Pending the so called seizure,- Brown, Brothers 4' Co. filed a third opposition, alleging that they had a privilege as pledgeesupon the notes, and praying that the proceeds of the sale when made might be' paid over to theirf. They asked the citation of the plaintiff but not of the de-' fendants. The plaintiff accepted service of this third opposition.

Soon after an adjudication-of the Guice debt was made, at sheriff’s sale, to’ James Brown, one of the third opponents, at twelve months’' credit. This sale' seems to have been irregularly conducted. The advertisement, so far as we’ can judge from the return, does not state whether the notes were protested at maturity, a matter of importance with reference" to the question of interest, nor iriake mention of the mortgage by which- they seem to have been secured. The appraisement was made by one appraiser, and the' notes which this appraiser,. ¡named by the plaintiff, had estimated at §8,000 and- upwards, were struck off at $2,020.

After the sale, tie third opposition was tried •without any representation of the defendants. There was judgment for the third opponent; the absent de^-fendants were condemned to pay the costs, and the plaintiff has appealed.

Questions of great importance are presented in this irregular manner. The' validity of a pledge in favor of Brown, Brothers Sf Co., to seeure an indebtedness of §500,000; the constitutionality, and effect, if constitutional, of a- statute of Mississippi, inhibiting the transfer of their assets- by the banks of that State, the validity of judicial sales of credits, belonging to absentees,-in the apparently loose and informal manner already noticed ; and, in the discussion of subjects of so great importance to the absent defendants, they have been entirely overlooked.

The necessity that the bank should be a party to this litigation is too obvious to' require comment, and demands that this cause should be sent back to the lower court to be tore tried in a proper manner. If the curator ad hoe declines the appointment, the court should make a new one.

It is therefore decreed that the judgment of the Courtbelow be reversed, and that this cause be remanded for a new trial, after due citation of the curator ad hoc already appointed,-and for further proceedings according to law; the third upponents paying the costs of this appeal.  