Fourniquet et al. v. Perkins. Court of Probates, the point is thus succinctly stated by Mathews, Justice, in delivering the opinion of the court:"This suit was commenced against the defendant in his capacity of curator, to obtain a judgment rendering the succession which he represents liable to pay and satisfy the plaintiffs' demand, and also to obtain a decree against him personally, on the event of the property being insufficient to pay all just claims against it, as having illegally administered the succession of the intestate." The Court of Probates decided against the application, and the Supreme Court, in passing upon that decision, lay down the law in these words:-"As an administrator de son tort, or as an intermeddler, he may be answerable to creditors for waste; but those pursuits against him must take place in a court of ordinary jurisdiction." The next case on this point is that of Bouquette's Guardian v. Donnet, 2 La., 193. There Porter, Justice, pronouncing the decision, says "It appears to us this is a demand against the executor in his personal capacity for the value of the property sold by him contrary to law. In other words, for a tort done by him. We think the Probate Court had no jurisdiction of the case, and that the petition must be dismissed, with costs in both courts." In 6 La., 449 is the case of Hurst v. Hyde, Executor, in which it is ruled, that "the Court of Probates has no jurisdiction in an action for damages occasioned by an act of the executor not legally done in relation to the administration of the succession." The last authority which will be cited to this point is one of later date. It is the decision of the Supreme Court of Louisiana in the case of Hemken v. Ludwig, Curatrix, a decision made in 1845, and reported in 12 Rob. (La.), 188, upon an appeal from the Court of Probates of Ouachita. This was a petition brought to subject the curatrix for what, in the legal language of Louisiana, is called a maladministration of the succession, corresponding with the term waste at the common law. At page 191 of the volume, Judge Simon, in delivering the opinion of the court, thus states the law :-"It is clear, the Court of Probates was without jurisdiction to decide on the *mat*171] ters set out in the plaintiff's petition in relation to the defendant's personal liability. It is true she is sued as curatrix, but one of the principal grounds alleged against her from which she is said to have incurred personal responsibility is, that she has concealed property belonging to the estate and has converted it to her own use, whereby she has lost the benefit of her renunciation, and has become liable, personally, to pay the debts of her husband. The main Fourniquet et al. v. Perkins. object of the suit is to obtain judgment against her individually, and such was virtually the judgment appealed from. It is not pretended that the property which she failed to include in the inventory is in her possession as curatrix; but that she claims the same as her own, and refuses to give it up. It is well settled that courts of probate have no jurisdiction of a claim against an administrator personally for maladministration." That the petition of Fourniquet and wife presented to the Probate Court, and subsequently transferred to the District Court, contained charges of maladministration cannot be denied. Indeed, with respect to the succession of Mary Bynum, the mother, and Benjamin Bynum, the father, of the petitioner, Harriet, and with respect to the release charged to have been fraudulently abstracted from both the petitioners, it alleged, not merely acts of maladministration, but instances of dishonesty and spoliation extraordinary in character and extent, and claimed of the defendant, in consequence thereof, a heavy personal liability for lands, slaves, and money, unjustly appropriated to his own purposes. From Art. 126 of the Code of Practice, we have seen that the jurisdiction of the District Courts of Louisiana extends over all civil cases where the amount in dispute is over fifty dollars; in other words, that these courts are courts of general civil jurisdiction. By the authorities cited from the Supreme Court of Louisiana, it is equally apparent that the Probate Courts are not courts of general, but of special limited jurisdiction; and that from their cognizance are excluded cases of fraud, torts, waste, or maladministration generally, committed by executors and administrators; and that these cases belong peculiarly to the cognizance of the District Courts. Such being the conclusions warranted by a review of the law, and the facts of this case being of a character to fall directly and regularly within its operation, it may well be asked what just exception can be taken to the jurisdiction of the District Court in this case? It was not a jurisdiction depending at all upon consent, which, it is said, cannot invest a court with power not belonging to it by its constitution. It was a transfer of a litigation, by consent, from a tribunal confessedly without authority to decide it, to a tribunal in every respect competent to *take cognizance of the subject-matter,-whose peculiar province and [*172 duty it was to take cognizance of it. The exception, at the utmost, resolves itself into matter of form, which the parties were competent to waive, and which they did waive, for it is expressly stated upon the record, that the removal of the cause from the Court of Probate into the District Court was Erwin . Lowry. by the consent of all concerned. It cannot be pretended that the forins of pleading may not be dispensed with by suitors; as it is certain that the benefit of matters both of substance and form may be lost by mere neglect or omission, where no intention of the renunciation of either is apparent or ever existed. We must conclude that the District Court had rightfully jurisdiction of the cause removed into it from the Probate Court; that its judgment is and must be binding upon the parties to it, until it shall be annulled or reversed by a competent authority. The parties to that judgment, the subject-matter thereof, and embraced within the proceedings on which it was founded, being identical with those comprised in the bill in the Circuit Court of the United States for the Ninth Circuit, now under review, the judgment was well pleaded in bar of the claims set up by the bill, and the decree of the Circuit Court sustaining this plea we hold to be correct, and the same is therefore hereby affirmed. ORDER. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Louisiana, and was argued by counsel. On consideration whereof, it is now here ordered and decreed by this court, that the decree of the said Circuit Court in this cause be and the same is hereby affirmed, with costs. JAMES ERWIN, PLAINTIFF IN ERROR, v. ALFRED J. LOWRY, CURATOR OF ALEXANDER MCNEILL, DECEASED. Where a petition for the seizure and sale of the mortgaged property of a deceased person was filed, in the Circuit Court of the United States for Louisiana, against the executor of that deceased person, which petition alleged the plaintiff to be a citizen of Tennessee, and the defendant to be a citizen of Louisiana, and the proceedings went on to a sale without any objection to the jurisdiction of the court being made by the executor upon the ground of residence of parties, it is too late for a curator, appointed in the place of the executor, to raise the objection in a State court against a purchaser at the sale, and attempt to prove that the Circuit Court had no jurisdiction over the case, because the executor was not a citizen of Louisiana. Evidence dehors the record cannot be introduced to disprove it.1 1 DISTINGUISHED. Holmes v. Oregon &c. R. Co., 9 Fed. Rep., 244; s. c., 7 Sawy., 400. FOLLOWED. Id., 237, 392. CITED. Davis v. Gaines, 14 Otto, 392; Draper v. Town of Springport, 15 Fed. Rep., 331. See Hutchinson v. Green, 2 McCrary, 476; s. c., 6 Fed. A judicial sale and title acquired under the proceedings of a court of competent jurisdiction cannot be questioned collaterally, except in case of Erwin . Lowry. Where a lien existed on property by a special mortgage before the debtor's death, and *the property passed, with the lien attached, into the hands of an executor, and was in the course of administration in the Pro[*173 bate Court, the Circuit Court of the United States had jurisdiction, notwithstanding, to proceed against the property, enforce the creditor's lien, and decree a sale of the property. And such sale was valid.2 The Circuit Court of the United States, having jurisdiction over the parties and subject-matter, and having issued an order of seizure and sale, the presumption must be, in favor of a purchaser, that the facts which were necessary to be proved in order to confer jurisdiction were proved. No other court can inquire into those facts.3 Although the marshal did not give the notice required by law to the executor against whom the petition was filed, yet, if the executor was served with process on the spot where the property was situated and where the advertisements were posted up, was present at the sale and named one of the appraisers, and requested that the land and negroes should be sold together, he cannot afterwards impeach the sale because formal steps were not strictly complied with. Nor can the curator who subsequently represented the same estate. Where the judgment of the state court may be sustained on error, on any ground within the exclusive cognizance of that court, this court will not reverse such judgment merely because some point which can be examined here, was erroneously ruled.4 Where the court below ordered that a sum of money should be paid over by the party in whose favor they decided to the losing party, the reception of this money by the losing party, before the writ of error was sued out, will not be a sufficient cause for dismissing the writ of error.5 THIS case was brought up from the Supreme Court for the Western District of Louisiana, by a writ of error issued under the 25th section of the Judiciary Act. In the beginning of the year 1835, Dawson and Nutt were the owners of some land situated in the parish of Carroll, in the State of Louisiana, on the waters of the Walnut Bayou, amounting to 640 acres, and also of a number of slaves. On the 8th of January, 1835, they sold the land and slaves to Alexander McNeill, of the State of Mississippi, for one hun fraud in which purchaser was a participant. Griffith v. Bogert, 18 How., 158, 164, and cases cited. S. P. Succession of Fontelieu, 28 La. Ann., 638; Kindell v. Titus, 9 Heisk. (Tenn.), 727. 2 DISTINGUISHED. Peale v. Phipps, 14 How., 375. CITED. Andrews v. Smith, 19 Blatchf., 108. 3 FOLLOWED. Miller v. United States, 11 Wall., 301. Every presumption is in favor of the regularity of the proceedings of a court having a general jurisdiction. Sprague v. Litherberr, 4 McLean, 442; Biggs v. Blue, 5 Id., 148; Nat. Bank of Monticello v. Bryant, 13 Bush (Ky.), 419. And that the requisite prior proceedings to confer jurisdiction were taken. Lathrop v. Stuart, 5 McLean, 167; Rich v. Lambert, 12 How., 347; McGavock v. Wood lief, 20 Id., 221; Elliott v. Van Voorst, 18 Leg. Int., 396; Neff v. Pennoyer, 3 Sawy., 271; People v. Cole, 84 III., 327; Kilgour v. Gockley, 83 III., 109; Pacific Pneumatic Gas Co. v. Wheelock, 80 N. Y., 278. The rule is subject to the exception that the jurisdiction of any court exercising authority over a subject may be inquired into in any other court, when the proceedings in the former are relied upon, and brought before the latter, by a party claiming the benefit of such proceedings. Williamson et al. v. Berry, 8 How., 495. 4 S. P. Williams v. Oliver, 12 How., 111; Same v. Same, Id., 125. 5 FOLLOWED. nell, 3 Otto, 154. O'Hara v. Mac Con Erwin v. Lowry. dred and five thousand dollars, payable in five payments; the first four of twenty-five thousand dollars each, and the last of five thousand. McNeill gave a mortgage upon the land and slaves to secure the last four payments. Whether notes were given for all these payments, and when they were to be made, the record did not show. But by an indorsement upon the mortgage under date of January 15th, 1838, it appeared that all the payments had been made except the fourth. About the 28th of May, 1839, Alexander McNeill died, in Mississippi. By his will, which contains several legacies of small value, he bequeathed the mass of his estate to Hector McNeill, also a resident and citizen of Mississippi, whom he appointed his testamentary executor. On the 6th of June, 1839, this executor, stating himself to be a citizen of Coahoma county, in Mississippi, presented a petition to the judge of probates of the parish of Madison, in which, after stating that his testator had died on the date above stated, in Mississippi, and left a will, in which he was appointed sole executor and principal legatee, an authenticated copy of which was annexed to the petition, he *proceeds to say, that two large estates *174] were in the possession of his testator, situated in this parish. He says further, that, by the laws of Mississippi, as executor of the will, he was bound to present it for probate in Warren county in that State, without delay; but as the court would not sit for some weeks, he could not then have the will proved and recorded, nor could he then present a duly certified copy of it to be recorded in the said Probate Court of Madison. He says he is "desirous of taking on himself the succession of his deceased brother's estate, according to the terms of his last will and testament, and the laws of the State; he therefore prays that an inventory of all the property in the parish, belonging to the estate of said Alexander McNeill, deceased, be taken." And he prays the judge to grant him the succession of the deceased Alexander McNeill, according to the terms of the will and the laws of the State; and that he will grant any other and whatever order may be necessary to entitle him (Hector) to the possession and succession of the property left by the deceased. Upon this petition no order or judgment was given by the probate judge; but on the 2d of July following, he proceeded to make an inventory of the property composing Alexander McNeill's succession, which is signed by Hector McNeill, as executor. The will was probated in Warren county, Mississippi, on the 24th of June, |