The of the court was pronounced by

This causo was tried ex parte. It is said that a sufficient interval, under the rule of the court, had not elapsed between the time of setting for trial, and the day of trial. It would be with reluctance that we would reverse an intrepretation of his own rule by a district judge, except in a very clear case of error; and wc will express no opinion on the point, as, on other grounds, we have determined to remand the case.

The object of this action is to impose on the heirs of Chamberlain, one of whom is a minor, a responsibility for the gross amount of the inventory of the -estate of Laglaise, of which Chamberlain was appointed administrator, in 1832. After Chamberlain's death, the present plaintiff took out, in 1846, letters of administration of Laglaise’s succession. The heirs of Chamberlain answered that he had undertaken the succession merely to protect the interest of one Bor gas, whose agent ho was, and who held a privileged claim sufficient to absorb the succession; that Chamberlain was also a creditor of Laglaise, for an amount exceeding his gross estate. ' Interogatories were propounded to the plaintiff pertinent to the defence.

At the trial of the'cause, in the absence of the defendants, the plaintiff offered what it is reasonable to believe are detached portions of the record of Laglaise’s succession, and not the entire record. The gross inventory was $469, consisting *369of a few articles of merchandize, and various notos for small sums made by several parties. An order of sale was made, upon the suggestion that the property was perishable. The result of the sale does not appear.

The judgment given against the heirs of Chamberlain upon this evidence, is for the gross amount of the inventory, §469. If the assets realized that amount, Chamberlain would, at least, have been entitled to credit for his commissions.

We are i ot disposed to shield administrators of estates; but, on the contraiy, to scrutinize their acts closely. But looking to the proceedings and evidence in this case as a whole, we cannot divest ourselves of the belief that the judgment is excessive, and that the ends of justice will be promoted by remanding the cause.

With regard to the plea of prescription, we have to remark that it is clearly untenable, so far as the running of prescription during Chamberlain’s life is claimed. Chamberlain was an officer, appointed by the court to discharge certain duties. As such, he must be considered as present before the court, in the nature of a party in proceedings there pending. Prescription had no commencement in his favor, at least, before the homologation of an account. As there is no evidence to establish the date of his death, it is unnecessary to consider what term of prescription would apply in favor of his heirs.

It is decreed, therefore, that the judgment of the court below be reversed, and that this cause be remanded for a new trial; the appellee paying the costs of this appeal. '