delivered the opinion of the court. This action was brought in the district court; the defendant, curatrix of her husband's estate, had judgment and the plaintiff appealed.

It is unnecessary to examine the case on the *239merits--the action ought to have been brought before the court of probates--the district court had no jurisdiction.--Vignaud vs. Tonancourt, 12 Martin, 229.

Judgment was incorrectly given on the merits--the suit ought to have been dismissed. But in relieving the plaintiff, we think we cannot do so at the costs of the defendant, as the plaintiff committed the first error.

It is therefore ordered adjudged and decreed that the judgment be annulled, avoided and reversed and that the plaintiff's action be dismissed, he paying cost in both courts.