sect or denomination of religion, or in aid of any priest, preacher, minister or teacher thereof, as such, and no preference shall ever be given to, or any discrimination made against, any church, sect or creed of religion, or any form of religious faith or worship," etc. Therefore, while we are grateful to God for religious freedom, with other blessings, we may not interfere with any citizen's natural right to also worship that same God according to the dictates of his own conscience. The Jew will be permitted without interference to worship God according to his conscience, and so will all others. schools of Caddo parish with reading from the Bible" is the equivalent of a command to them to do so. To request that the daily session should be opened with Bible reading and the offering of the Lord's Prayer is to say that the exercises for the day shall begin with such reading and prayer. And the request of the employer that the employees should do so as a part of the regular exercises in the schools is an order to that effect. The "lessons and truths" contained in the Holy Bible to be taught through reading by the teachers from the Bible to the children of the school, for the purpose of teaching morality, are read and taught as teachings from the inspired Word of God Himself. To read the Bible for the purpose Does the resolution under consideration interfere with the natural rights of these plaintiffs to worship God, or to have their children worship God, according to the dic-stated requires that it be read reverently tates of their consciences, or does it give a preference to Christians, and discriminate against Jews? and worshipfully. As God is the author of the Book, He is necessarily worshipped in the reading of it. And the reading of it forms part of all religious services in the Christian and Jewish churches, which use the Word. It is as much a part of the religious worship of the churches of the land as is the offering of prayer to God. While the resolution simply requests principals and teachers of the public schools of Caddo parish to open the daily sessions with reading from the Bible, without note or comment, the preamble to the resolution | shows that this reading is for the purpose of teaching children "at the most impressionable age" "lessons and truths contained within the Holy Bible" as being "of para-any, however little reason may seem to mount value in creating and maintaining a better moral atmosphere" in the community at large, and also in the individual life. The "lessons and truths" may be taught from the New Testament, as well as the Old Testament. The Christian parents might not be heard to object to "the lessons and truths contained within the Holy Bible" being taught to their children for the purpose of inculcating morals, because they profess to believe in the inspiration of the whole Word. But with the Jew it is different. He denies that the New Testament is the word of God, and he denies our Savior. He does not deny most of the moral teachings of Jesus Christ, but he denies His divinity and His resurrection. The general policy of the government always is to avoid with care any compulsion which infringes on the religious scruples of others to underlie them. Cooley, Const. Lim. p. 585. The reading of the New Testament as the Word of God infringes on the religious scruples of the Jews. The discrimination against them, and the inequality of rights and privileges, are manifest by such requirement. The subjection by school authorities of Jewish children to Christian worship is forbidden by the Constitution, which guarantees to every person the natural right to worship God according to the dictates of his conscience. "Before the Constitution Jews and Gentiles are equal; by the law they must be treated alike; and the ordi nance which gives to one sect a privilege which it denies to another, violates both the Constitution and the law, and is therefore null and void." Shreveport v. Levy, 26 La. Ann. 671, 21 Am. Rep. 553. And, as he is guaranteed "the natural right to worship God, according to the dictates of his conscience," and as the resolution in question permits "lessons and It is a fact that the reading of the Bible truths" to be read or taught from the New is religious instruction, and that when the Testament, particularly concerning the Son New Testament is read it is Christian inof God and His resurrection from the dead, struction. The character of the Book is that etc., it gives a preference to the children of it is a pious one, and it is essentially relithe Christian parents, and discriminates gious. It is not adapted for use as a textagainst the children of the Jews. The reso-book for the teaching alone of reading, hislution is therefore violative of the Constitution. The request made by the board of school directors of Caddo parish that the principals and teachers in its employ and under its control "open daily sessions of the public tory, or of literature, without regard to its religious character. Such use would be inconsistent with the true character and the reverence in which the Scriptures are held, and should be held. To permit the teacher to select the part from enforcing or carrying into effect the resolution of said board requesting the principals and teachers to open the morning sessions of the public schools of Caddo parish by reading from the Bible, without note or comment, and the offering of the Lord's Prayer. In all other respects the petition of plaintiffs is denied; defendants to pay costs in all courts. of the Bible to be read without test whereby of Caddo and the parish superintendent to determine the selection is to allow any part, or all parts, to be selected. One of the most important forms of instruction is that of reading; and it is impossible to read from the New Testament without giving instructions in Christianity. It (the New Testament) is the foundation and text-book of Christianity, based on the teachings contained therein that Christ is divine. And the lessons therefrom give a preference to Christians, and at the same time make a discrimination against the Jews. "The more enlightened opinion of the present day denies the duty [to teach religion in the public schools], and affirms that any step in that direction is in greater or less degree a species of persecution of those whose views are not favored, and therefore incompetent, in any country whose political institutions are based upon the principles of equality before the law. Religious instruction is, therefore, referred exclu sively to the voluntary action of the people." Cooley, Taxn. 197. The answer made by defendants that "in all of said schools the said teachers might with due propriety have excused from attendance on such exercises the children of said plaintiffs and others of similar belief, if so requested by the students or their parents or guardians," is an admission of discrimination against the children of those citizens whose consciences would not permit them to worship God as taught in the particular portion of the Scriptures selected and read by the teacher of the class in which the children of said citizens happened to be. Under such circumstances, the children would be excused from the opening exercises of the school because of their religious beliefs. And excusing such children on religious grounds, although the number excused might be very small, would be a distinct preference in favor of the religious beliefs of the majority, and would work a discrimination against those who were excused. The exclusion of a pupil under such circumstances puts him in a class by himself; it subjects him to a religious stigma; and all because of his religious belief. Equality in public education would be destroyed by such act, under a Constitution which seeks to establish equality and freedom in religious matters. The Constitution forbids that this shall be done. It is therefore ordered, adjudged, and decreed that the judgment of the District Court be annulled, avoided, and reversed. It is further ordered, adjudged, and decreed that there be judgment in favor of plaintiffs and against defendants, enjoining the board of school directors of the parish Land, J., recused on account of relationship to one of the parties. Provosty, J., concurs in the opinion, adding, however, that according to his understanding the objection of the Catholic Church to the popular reading of the Bible relates only to the Old Testament, owing to certain passages therein, the reading whereof might do more harm than good to the uninstructed. 1. Where the defendant, who was the coroner of Dakota county, and his surety, the defendant company, were sued by the administrator of the estate of one Robert Reed, deceased, who sought to recover from them the value of certain personal property which had belonged to said Reed at the time of his death, and which had been sold by the defendant coroner immediately after the death of the deceased, and to enable him to pay the necessary expenses of the funeral, and he had sold the property for its full and fair value, and had used the proceeds for that purpose, and at the request of the nephew of the deceased and his son, held: (1) That the defendants were entitled to - Allowance to executor de son Note. tort of disbursements or payments. In general. "An executor de son tort is a person who, without authority, intermeddles with the estate of a decedent, and does such acts as properly belong to the office of an executor or administrator, and thereby becomes a sort of quasi executor, although only for the purpose of being sued or made liable for the assets with which he has intermeddled. PPEAL by defendants from a judgment of the District Court for Dakota County in plaintiff's favor in an action brought to recover the value of personal property of delia-ceased sold by defendant Sawyer for the payment of funeral expenses. Reversed. The facts are stated in the opinion. Mr. Paul Pizey, for appellants: 2. Under the facts shown, the defendant Sawyer was at most an executor de son tort. The true representative is bound by those acts of an executor de son tort which are lawful and such as the true representative would be bound to perform in the due The designation is inapt in that it applies the term 'executor' to intestate as well as testate estates, and also in that it gives to a person who has merely incurred a certain liability by reason of his intermeddling an official title corresponding with that of a duly appointed representative, and in many states the so-called office of executor de son tort has been abolished by statute, while in others it is considered inconsistent with the prevalent system of administration." 18 Cyc. 1354. The question under investigation in this note, as the title indicates, is whether or not, and in what circumstances, an executor de son tort is entitled to an allowance or credit for disbursements or payments made by him in respect to the estate with which he has intermeddled. In the main the note, while including a few cases decided under modern statutes abrogating or modifying the common-law office of executor de son tort, is not concerned with the rights of intermeddlers under such statutes to credits, although it is believed, from the few exemplary cases here included, that, in the absence of anything to the contrary, the rules of the common law would apply. And cases like Spruance v. Darlington, 7 Del. Ch. 111, 30 Atl. 663, as to the right of an executor under a revoked will to credits in an action by the executor or administrator under the revoking will, and like Ellis v. Ellis [1905] 1 Ch. 613, 74 L. J. Ch. N. S. 296, 53 Week. Rep. 617, 92 L. T. N. S. 727, as to an administrator appointed by suppressing a will appointing an executor, are not regarded as within the scope of this article. The demand on Sawyer should have been for the property, not for an accounting, and upon a refusal of the demand, the action urally, it seems, that, upon reason and principle, while an executor de son tort should receive no benefit from his wrongful interference with the estate, as, for instance, by being allowed to retain for a debt owing to him by the deceased, he should nevertheless, as general rule, be entitled to protection in those disbursements and payments made by him which a rightful representative in the due course of administration would have been bound to make. For while in a few cases, at least, where the common law is still in force, the wrongful executor, by interfering and making such disbursements or payments, may deprive the rightful representative of his right to retain for his own debt (a right which has been greatly modified in this country by statute), his interference in such a manner as a usual thing constitutes no detriment either to the estate itself, or to the rights of parties interested therein. It seems, therefore, that the principle enunciated is sufficient to discourage indiscriminate interference with decedent estates, and at the same time accord justice where justice is due; and such, apparently, is the view taken by the great majority of courts. And since ordinarily, in the due course of administration, where the estate is insolvent, the rightful representative would be bound to pay only that proportion of the debts which the law allows, an executor de son tort, it would seem, should receive credit only for that proportion of the debts which the rightful representative would be bound to make. See Leach v. Prebster, 35 Ind. 419; but see also, in the same connection, De la Guerra v. Packard, 17 Cal. 183, and M'Carthy v. Donovan, 13 Ir. C. L. Rep. 195. As the very name itself indicates, an executor de son tort is a wrongdoer, an intruder, and intermeddler; but frequently his acts are prompted by good motives, and often result in no detriment either to the estate or to the rights of creditors thereof or other interested parties. This being the situation, it is interesting to know what course the law, in the light of its policy of discouraging wrongdoing and fostering fair play, pursues in regard to such executor. It suggests itself at once and quite nat-3 In accord with the principle that an executor de son tort shall receive no benefit from his wrongful interference, and to discourage a race between creditors to get possession of decedent estates, the rule is well established that such an executor is not entitled to retain in satisfaction of his own debt. Alexander v. Lane, Yelv. 137; Prince v. Rowson, 1 Mod. 208; Curtis v. Vernon, T. R. 587, 2 H. Bl. 18, 1 Revised Rep should have been brought for the value of, the defendants, for conversion, for the reathe property, not the amount received by Sawyer. Kendall v. Duluth, 64 Minn. 295, 66 N. W. 1150; Daggett v. Gray, 110 Cal. 163, 42 Pac. 568; Moynahan v. Prentiss, 10 Colo. App. 295, 51 Pac. 94; Saratoga Gas & Electric Light Co. v. Hazard, 55 Hun, 251, 7 N. Y. Supp. 844. If there is any liability it would be personal with Sawyer, and this suit is only upon the bond. Ottenstein v. Alpaugh, 9 Neb. 237, 2 N. W. 219; Dewey v. Kavanaugh, 45 Neb. 233, 63 N. W. 396; State v. Moore, 56 Neb. 82, 76 N. W. 474; State v. Porter, 69 Neb. 203, 95 N. W. 769. There can be no liability on the part of 774; Oxenham v. Clapp, 2 Barn. & Ad. 309, 9 L. J. K. B. 229; Coulter's Case, 5 Coke, 30a; Ayre v. Ayre, 1 Ch. Cas. 33; Featherstone v. West, Ir. Rep. 6 Eq. 86; De la Guerra v. Packard, supra; Leach v. House, 1 Bail. L. 42; Cook v. Sanders, 15 Rich. L. 63, 94 Am. Dec. 139; McMeekin v. Hynes, 80 Ky. 343; Partee v. Caughran, 9 Yerg. 460; Sharp v. Caldwell, 7 Humph. 415; Winn v. Slaughter, 5 Heisk. 191; Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452; Baumgartner v. Haas, 68 Md. 32, 11 Atl. 588: Neal v. Baker, 2 N. H. 477; Turner v. Child, 12 N. C. (1 Dev. L.) 331, 17 Am. Dec. 555; Hill v. Henderson, 13 Smedes & M. 688. An executor of his own wrong cannot retain any part of the deceased's goods to satisfy his own debt, for, as the court in Coulter's Case, 5 Coke, 30a, points out: "From thence would ensue great inconvenience and confusion, for every creditor (and chiefly when the goods of the deceased are not sufficient to satisfy all the creditors) would contend to make himself executor of his own wrong, to the intent to satisfy himself by retainer, by which others would be barred. And it is not reasonable that one should take advantage of his own wrong; and if the law should give him such power, the law would be the cause and occasion of wrong, and of the wrongful taking of the goods of the deceased. And the law of God saith, non facias malum ut inde fiat bonum, & melius est omnia mala pati, quam malo consentire." Suit by rightful representative. At common law, where the rightful executor or administrator sues the executor de son tort, if the action be trover for the goods of the deceased, the defendant cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts; but, on the general issues pleaded, he may give in evidence such payments, and they will be recouped in damages if they be such as the plaintiff would have been bound to make: or, in the language of some of the books, made in the due son that defendant Sawyer could at most be regarded merely as an executor de son tort, and as such would be permitted an offset to the extent of his reasonable charges, against any claim of the estate against him. 18 Cyc. 1363; Crispin v. Winkleman, 57 Iowa, 523, 10 N. W. 919. Mr. J. J. McCarthy, for appellee: The action is one that the plaintiff could not have brought in his individual capacity, and it makes a difference whether he is described "administrator" or "as administrator of the estate of Robert Reed, deceased." 18 Cyc. 978; Williams v. Eikenbary, 36 Neb. 478, 54 N. W. 852. The statute under which this action was course of administration. Whitehall V. Squire, Carth. 104; M'Carthy v. Donovan, 13 Ir. C. L. Rep. 195; Carpenter v. Going, 20 Ala. 587; Glenn v. Smith, 2 Gill & J. 493, 20 Am. Dec. 452; Weeks v. Gibbs, 9 Mass. 74; Hardy v. Thomas, 23 Miss. 544, 57 Am. Dec. 152; Rutherford v. Thompson, 14 Or. 236, 12 Pac. 382; Saam v. Saam, 4 Watts, 432; Cooper v. Eyrich, 41 W. N. C. 370; Gilfillen's Appeal, 170 Pa. 185, 50 Am. St. Rep. 760, 32 Atl. 585 (dicta); Roumfort v. McAlarney, 82 Pa. 193 (dicta). And see infra, Roggenkamp v. Roggenkamp, 15 C. C. A. 600, 32 U. S. App. 453, 68 Fed. 605; and McConnell v. McConnell, 94 111. 295. In Glenn v. Smith, 2 Gill. & J. 493, 20 Am. Dec. 452, the court, after stating that if sued by a creditor an executor de son tort may plead plene administravit, said: "There is, however, a difference between a suit by a creditor against an executor de son tort and one by a rightful executor or administrator. If the action by the latter be trover for the goods of the deceased, the defendant cannot plead payment of debts to the value, or that he has given the goods in satisfaction of the debts. But on the general issue pleaded, he may give in evidence such payments, and they will be recouped in damages, if they be such as the plaintiff would have been bound to make, or, in the language of some of the books, made in the due course of administration. In Whitehall v. Squire, Carth. 104, it was said that the wrongful executor could not plead payment of debts to the value, or that he had given the goods in satisfaction of the debts, because no man ought to obtrude himself on the office of the other. Quoting from Williams on Executors, 5th ed. p. 236, Monahan, Ch. J., in M'Carthy v. Donovan, 13 Ir. C. L. Rep. 195, says: "With respect to the liability of an executor de son tort, at the suit of the lawful representative of the deceased, there are several authorities to show that if the rightful executor or administrator bring an action of trover or trespass, the executor de son tort may give in evidence, under the general issue and in mitigation of damages, pay brought embraces such property as was sold | Reed, deceased. It appears that one Robert by Sawyer, and the defendant bonding com- | Reed died intestate at his home in Dakota pany must be held liable. Harris v. Allen, 15 Fed. 106; McDade v. People, 29 Mich. 50, 1 Ann. Crim. Rep. 81; People v. Treadway, 17 Mich. 480; Brandt, Suretyship & Guaranty, 2d ed. § 530; Dewey v. Kavanaugh, 45 Neb. 233, 63 N. W. 396; Huffman v. Kopplekom, 8 Neb. 344, 1 N. W. 243. county while living alone; that when his body was found the defendant Sawyer, at the request of the nephew of the deceased, took charge of the body and gave it a Christian burial; that he took possession of certain personal property of the deceased, sold it for its full value, and applied the proceeds to the payment of the expenses necessarily incurred for the burial casket, the lot Hamer, J., delivered the opinion of the in the cemetery, etc. The plaintiff, as ad court: This is an appeal from the judgment of the district court of Dakota county against the coroner of that county and the surety on his official bond. The suit was brought by the administrator of the estate of Robert ments made by him in the rightful course of administration, upon the ground that the payments, which are thus, as it is termed, recouped in damages,' were such as the lawful executor or administrator would have been bound to make, and therefore it cannot be considered as any detriment to him that they were made by an executor de son tort." But in the same case the court said that if the sums due to creditors should be larger in amount than the assets, an executor de son tort, it seems, would not get credit for the sums he had disbursed; because in the event of the question of priority being raised, the rightful executor might, by such wrongful interference, be debarred from making a selection in his payments. Ibid. But see infra this section, Leach v. Prebster and De la Guerra v. Packard. In Saam v. Saam, 4 Watts, 432, the court said: "It is said there is no defense by an administrator de son tort to the action of a rightful representative; that is, he cannot plead payment of debts to the value; yet it seems to be agreed that he may plead the general issue, and give such payments in evidence in mitigation of damages; and that if they amount to the value, the plaintiff shall be nonsuited. The present is an action of trover against the representatives of an executor de son tort, and the defense attempted would doubtless be competent, if it were supported by competent proof." The defendant in this case offered to prove that he had paid debts to an amount equal to the value of goods, but the proof, as above intimated, was incompetent. And in Meigan v. M'Donough, 10 Watts, 287, it was stated that an executor de son tort is liable to the rightful representative for all beyond rightful payments by retainer or disbursement. ministrator, brought this action to recover the value of the personal property so sold. On the trial the defendant offered to prove as a matter of set-off that the expenses incurred by him were proper and necessary, and were just and reasonable in amount; In trover and trespass by the rightful administrator against an executor de son tort, the latter cannot plead by way of equitable defense plene administravit before the grant of administration to the former. Elworthy v. Sanford, 3 Hurlst. & C. 330. Against this plea counsel, in support of his demurrer thereto, said: "The defendant might give in evidence, in mitigation of damages, payments made by him in the rightful course of administration, because the plaintiff, as executor, would have been bound to make such payments, and therefore it can be no detriment to him that they were made by an executor de son tort; but an executor de son tort cannot plead, in bar to an action by the rightful executor, payment of debts to the value of the assets, or of the goods sought to be recovered in trespass or trover. 1 Williams, Exrs. 5th ed. pp. 236, 237. As an equitable defense the plea is bad for not stating that the assets were sufficient to satisfy all the debts of the deceased. An executor de son tort cannot plead in mitigation of damages payments made in the due course of administration, unless the assets were sufficient to satisfy all the debts, for otherwise the rightful executor would be precluded not only from giving preference to one creditor over others of equal degree, but also of satisfying his own debt in priority to all others of equal degree. 1 Williams, Exrs. 5th ed. p. 238." And Bramwell, B., said: "The ninth plea is clearly bad. The defendant, who had wrongfully taken possession of the assets of the deceased, says that he has exhausted them in the payment of debts; but for anything that appears he may have paid his own debt while the rightful executor was also a creditor of the deceased." In Howell v. Smith, 2 M'Cord, L. 516, And see Collier v. Jones, 86 Ind. 342, to it was held in an action by the administrathe effect that in a suit by the administrat-tor for money had and received that disor of decedent's estate against an executor bursements made by the wrongful executor de son tort of the same estate, a plea of in payment of debts of the deceased would payment of "all debts and liabilities on ac- not be allowed in discount. What the nacount of the matters and things set forth ture of these were does not appear, but the in the complaint in this suit" is an improp-court said: "It is due to the defendant to er answer. state my full persuasion that his motives |