aside his debtor's deed until he has exhausted his legal remedies.-State v. Goggin, Mo., 90 S. W. Rep. 379.

71. GUARANTY-Discharge of Gurautor.-The liability ofja guarantor of a note under an absolute guaranty of payment held not affected by the neglect of the payee to enforce a chattel mortgage.-Warder, Bushnell & Glessner Co. v. Johnson, Mo., 90 S. W. Rep. 392.

72. HABEAS CORPUS-Findings of Lower Court. - In habeas corpus to determine the right to the custody of an infant, the finding of the lower court as to the facts has the effect of a verdict of a jury.-Smiley v. McIntosh, Iowa, 105 N. W. Rep. 577.

73. HABEAS CORPUS-Jurisdiction of Federal Courts.Federal courts have no jurisdiction to release by habeas corpus a person held in custody by state authorities for contempt in refusing to testify before a legislative investigating committee.-Carter v. Caldwell, U. S. S. C., 26 Sup. Ct. Rep. 204.

74. HOMESTEAD-Exemptions as to Proceeds. — The proceeds of a homestead are only exempt for a reason. able time during which they are held for the purpose of reinvesting them in another homestead.-Campbell v. Campbell, Iowa, 105 N. W. Rep. 583.

75. INFANTS-Right to Avoid Contract.-A minor who sold a judgment to his attorney could avoid the sale and recover the amount collected on the judgment.-Vance v. Calhoun, Ark., 90 S. W. Rep. 619.

76. INJUNCTION-Insufficiency of Bill.-Where an injunction is the primary relief demanded, and the bill is not sufficient to sustain the same, it is proper for the court to dismiss the bill on the merits on the hearing of an application to dissolve a preliminary injunction.Davis v. Baltimore & O. R. Co., Md., 62 Atl. Rep. 572

77. INTOXICATING LIQUORS Illegal Sale.-It is immaterial whether plaintiffs in selling intoxicating liquors had any knowledge for what purpose they were pur chased, if they were intended by the purchasers for illegal sale in the state.-Heintz v. LePage. Me., 62 Atl Rep. 605.

78. INTOXICATING LIQUORS.-Innkeepers.-A keeper of a hotel who has not applied for a license to keep a hotel with the privilege of retailing liquors is not liable to the license tax imposed by Ky. St. 1903, § 4224.—Com. monwealth v. Central Hotel, Ky., 90 S. W. Rep. 565.

79. JUDGMENT-Fraud in Procurement.-In order to entitle plaintiff to have a judgment set aside for fraud and collusion between her co-plaintiffs and defendant, defendant's complicity in the fraud must be estab lished.-DeGarcia v. San Antonio & A. P. Ry. Co., Tex., 90 S. W. Rep. 670.

90. JUDGMENT-Matters Which Might Have Been Litigated.-All defenses existing to the contract exemption from state taxes asserted in a suit to enjoin collec tion of the tax held foreclosed by the decree establishing such exemption -Gunter v. Atlantic Coast Line R. Co., U. S. S. C., 26 Sup. Ct. Rep. 252.

81. JUSTICE OF THE PEACE-Complaint in Unlawful Detainer.-A complaint in an unlawful detainer proreeding before a justice of the peace held not fatally defective because it was signed in the name of the plaintiff by "T., Agent," instead of by T. "as agent," for such plaintiff.-South St. Joseph Town Co. v. Scott, Mo., 90 S. W. Rep. 727.

82. LANDLORD AND TENANT - Lien For Unaccrued Rent. Where rent was not yet due, held that the landlord was entitled to restrain the sale of the lessee's property which was subject to lien for rent.-Miller v. Bider, Iowa, 105 N. W. Rep. 594.

83. LIFE INSURANCE-Applications Where Copied From Original. Where an insurance company or its agents undertake to fill in an application from a previous ap. plication or statement made by applicant, it should be held to the strictest adherence to the terms of such application.-Hewey v. Metropolitan Life Ins. Co., Me., 62 Atl. Rep. 600.

84. LIFE INSURANCE-Application When Signed in Blank. An application for life insurance, signed in blank, by one desiring insurance, and filled in by the

company or its agents, should be construed more favorably to the applicant.-Hewey v. Metropolitan Life Ins. Co., Me., 62 Atl. Rep. 600.

85. LIMITATION OF ACTION-Husband and Wife.-The fact that a husband and wife are living apart under such circumstances as to constitute an abandonment of the wife by the husband, which would authorize her to sue for the possession of her real estate, does not impose an obligation on her to sue therefor, and the statute of limitations does not begin to run against her on that account.-Graham v. Ketchum, Mo., 90 8. W. Rep. 350.

86. MALICIOUS PROSECUTION-Probable Cause.-That defendant in an action for malicious prosecution in prosecuting plaintiff for alleged destruction of a highway acted in his official capacity was a matter to be considered in determining the question of probable cause.Skeffington v. Eylward, Minn., 105 N. W. Rep. 638.

87. MANDAMUS-Grounds.-Where the authorities of a city where threatening to unlawfully appoint a successor of a municipal officer, and to dispossess him of his office and property thereof, his remedy was not manda mus, but injunction.-Callaghan v. McGown, Tex., 90 S. W. Rep. 319.

88. MANDAMUS-Tax Levy to Pay Township Bonds.County auditors and treasurers may be compelled by mandamus to levy a tax to pay a judgment on township bonds, though the township has been abolished by state constitution, and its corporate agents removed.-Graham v. Folsom, U. S. S. C., 26 Sup. Ct. Rep. 245.

89. MASTER AND SERVANT-Duty of Carrier to Keep Track in Repair.-Violation of a railroad company's duty to keep its track in a reasonably safe condition, or warn its employees,may be charged in general terms.-Illinois Cent. R. Co. v. Leisure's Adm'r, Ky., 90 S. W. Rep. 269. 90. MORTGAGES-Foreclosure Sale.-A sale on foreclosure in entirety of two parcels covered by separate deeds should not be ordered unless the interests of the parties require it.-Warner v. Grayson, U. S. 8. C., 26 Sup. Ct. Rep. 240.

91. MUNICIPAL CORPORATIONS-Amendment of Charter. An adoption by a city existing under a special charter of a part of the general charter pro tanto amends the former, and renders it subject to that extent to further amendment by legislative action alone to change the part so adopted.-Hay v. City of Baraboo, Wis., 105 N. W. Rep. 654.

92. MUNICIPAL CORPORATIONS - Authority to Grant Lighting Franchise.-An ordinance granting a franchise to supply gas to a city for 20 years held to grant a fran chise which began on the acceptance of the bid, and is valid under const. § 164.-Truesdale v. City of Newport Ky., 90 S. W. Rep. 589.

93. MUNICIPAL CORPORATIONS-Funds Liable for Satisfaction. A decree against a city held such that it would be satisfied from the general revenue or from a tax to meet the decree, and not from current school reven ues.-State v. City of Knoxville, Tenn., 90 S. W. Rep. 289. 94. MUNICIPAL CORPORATIONS-Liability of Abutting Owner.-A city charter making it the duty of owners of premises to keep the abutting sidewalks in repair or pay the expenses of the city in so doing does not make them liable to travelers for injuries occasioned by a lack of repair. Hay v. City of Baraboo, Wis., 105 N. W. Rep.

654.

95. MUNICIPAL CORPORATIONS Street Sprinkling. The work of street sprinkling need not be regulated by ordinance or resolution in order to authorize a municipality to pay therefor.-McAllen v. Hamblin, Iowa, 105 N. W. Rep. 593.

96. MUNICIPAL CORPORATIONS - Waterworks Franchise.-A grant of waterworks franchise held not to devest a municipality of its power to construct an independent waterworks system of its own. - Knoxville Water Co. v City of Knoxville, U. S. S. C., 26 Sup. Ct. Rep. 224.

proximately contribute to cause the injury complained of.-St. Louis Southwestern Ry. Co. of Texas v. Parks, Tex., 90 S. W. Rep. 343.

98. NEW TRIAL-Notice of Denial.-Aparty making a motion for a new trial is bound to take notice of the filing of an order denying the same, and is not entitled to the service of notice thereof by the adverse party.Bell v. Staacke, Cal., 83 Pac. Rep. 245.

99. PARENT AND CHILD-Emancipation.-The waiver by a parent of right to compensation for a child's services need not be before the services are performed.— McMorrow v. Dowell, Mo., 90 S. W. Rep. 728.

100. PARTNERSHIP — Accounting.-A partner buying out his copartner for the balance shown by an accounting by the other held entitled to have the accounting surcharged for errors through fraud or mistake, though he did not exercise any surveillance.-Ehrmann v. Stitzel, Ky., 90 S. W. Rep. 275.

102. PHYSICIANS AND SURGEONS Practicing Medicine. One who diagnosed patients' diseases by microscopic examination of a drop of blood, and treated them by subjecting them to rays of electric light, held to have practiced medicine within Act 1901, p. 115, ch. 78.-O'Neil v State, Mo., 90 S. W. Rep. 627.

193. PHYSICIANS AND SURGEONS-Validity of License.A proceeding on behalf of the state to cancel a license to practice dentistry must be brought by the attorney general, and the state dental board is a necessary party defendant.-Brown v. Grenier, N. H., 62 Atl. Rep. 590.

104. PRINCIPAL AND AGENT-Declarations of Agent.The admission or claim of one pretending to act as another's agent, and that he has authority to do so, has no tendencies to prove the agency.-McCune v. Badger, Wis., 105 N. W. Rep. 667.

105. PRINCIPAL AND SURETY-Failure to Inform Sureties of Embezzlement.-Failure of directors of a bank to inform sureties on the bond of the bank treasurer of prior embezzlements by him held not to have amounted to fraud releasing the sureties.-Watertown Sav. Bank v. Mattoon, Conu., 62 Atl. Rep. 622.

106. PUBLIC LANDS-Rights of Parties.-Intended concealment from government of trust under which a party perfected the title to scrip land held not to affect the enforcement of the trust, where government officials knew and considered all the facts in relation thereto.Keely v. Gregg, Mont., 83 Pac. Rep. 222.

107. REFORMATION OF INSTRUMENTS-Mistake.-A writ ten contract having been pleaded in defendant's answer, plaintiff held entitled to pray for a reformation of the contract for mistake in reply.-Turner v. Wabash R. Co., Mo., 90 S. W. Rep. 39.

108. RELEASE-Consideration.-Though a shipper has a cause of action for breach of contract to furnish cars, held he may for a consideration release it by a subse quent contract.-Fountain v. Wabash R. Co., Mo., 90 S. W. Rep. 393.

109. ROBBERY-Assault With Intent to Rob.-One may be convicted of an assault with intent to rob, on a prose. cation under the statute imposing a penalty for robbery where the robber is armed with a dangerous weapon, with intent, if resisted, to kill or maim the person robbed.-People v. Powler, Mich., 105 N. W. Rep. 611.

110. SALES-Options.-An option under agreement for transfer of corporate stock held not an option to purchase, but only to return, and if not exercised at time named, the sale is complete, and the promise to pay the purchase price becomes absolute.-Guss v. Nelson, U. S. S. C., 26 Sup. Ct. Rep. 260.

111. SCHOOLS AND SCHOOL DISTRICTS-Bids and Acceptance.-A telegram to a bidder: "You are low bidder. Come on morning train" held not to be an accept

ance of his bid.-Cedar Rapids Lumber Co. v. Fisher, Iowa, 105 N. W. Rep. 595.

112. SET-OFF AND COUNTER CLAIM-Master and Servant. In a suit to eject defendant from complainant's house, a cross complaint to recover the difference between the reasonable value of defendant's services and the amount complainant had paid her held maintainable. -Mixer v. Mixer, Cal., 83 Pac. Rep. 273.

113. STATES-Suits Against.-County treasurer sought to be enjoined from collecting state taxes because of an asserted contract exemption from taxation held endowed with power to submit the rights of the state to judicial determination under the statute under which the taxes were levied.-Gunter v. Atlantic Coast Line R. Co., U. S. S. C., 26 Sup. Ct. Rep. 252.

114. STATUTES-Imp.ied Provisions. Whenever a power is given or duty imposed by statute, everything necessary to make that power effectual or essential to the performance of the duty is conferred by implication. -Callaghan v. McGown, Tex., 90 S. W. Rep. 319.

115. STREET RAILROADS-Instructions as to Care Required In an action against a street railway company for injuries to a passenger, an instruction stating that it was the duty of the conductor to exercise great care, without in any way limiting or defining that expression, was erroneous.-Raymond v. Portland R. Co., Me., 62 Atl. Rep. 602.

116. STREET RAILROADS-Instruction as to Proximate Cause. In an action for injuries to a person, while being driven in a carriage, by a collision with a street car, an instruction held objectionable as misleading the jury on the issue of the proximate cause of the injury.-Han son v. Manchester St. Ry., N. H., 62 Atl. Rep. 595.

117 SUBROGATION-Crops Raised on Shares.-A third party claimant of cotton levied on by a tenant's execu tion creditor held not concluded by a judgment in an action by the landlord against such execution creditor to which such claimant was not a party.-Miles v. Dorn, Tex, 90 S. W. Rep. 707.

118. TAXATION-Injunction Against Illegal Taxation.— The rule that tender of valid portion of a tax is a condition precedent to relief by injunction cannot be invoked to defeat relief in aid of a decree enjoining collection of state taxes.-Gunter v. Atlantic Coast Line R. Co., U. S. S. C., 26 Sup. Ct. Rep. 252.

119. TAXATION-Notice as to Sale of Land.-Notices of sale of lands for taxes to the record owners in which the name of the county and state was omitted from the description held ineffective.-Tucker v. Van Winkle, Mich., 105 N. W. Rep. 607.

120. TAXATION-Situs of Personalty. - The situs of a testatrix' personal property for the purpose of assessing a legacy or succession tax is her domiclie at the time she died, regardless of the statutes of foreign states also subjecting property of nonresidents therein to similar taxation. In re Hartman's Estate, N. J., 62 Atl. Rep. 560. 121. TELEGRAPHS AND TELEPHONES Liability to Sender for Failure to Deliver. A telegram reading: "Your mother is dying. Come at once. [Signed] Callie"-did not, on its face, charge the telegraph company with notice that the sender had any interest in the subject-matter of the message.-Western Union Telegraph Co. v. Bell, Tex., 90 S. W. Rep. 714.

122. TELEGRAPHS AND TELEPHONES-Licenses.-Where a city sold a franchise to a telephone company, held, that it could not afterwards impose a license tax on such com pany for conducting its business.-Cumberland Telephone Co. v. Hopkins, Ky., 90 S. W. Rep. 594.

123. TRESPASS TO TRY TITLE-Issues and Proof.-In trespass to try title, the defendant, under a plea of not guilty, may prove an outstanding superior title in a third person.-Lamberida v. Barnum, Tex., 90 S. W. Rep. 698. 124. WITNESSES-Cross-Examination to Show Bias.-Where a party seeks to show that an adverse witness should be discredited by ill will, he has the right to show so much of the facts as may be necessary to inform the jury of the cause of improper influence.-State v. Malmberg, N. Dak., 105 N. W. Rep. 614.

Central Law Journal.

ST. LOUIS, MO., JUNE 1, 1906.

THE ADMINISTRATION OF THE LAW IN THE INDIAN TERRITORY.

The following from the case of George v. United States, 89 S. W. Rep. 1122, shows the condition of judicial affairs in the Indian Territory, and while this may be the limit of judicial intelligence of its kind. it yet, nevertheless, shows what the attorneys of that country are subjected to and the need of statehood, which need should be thundered in the idex at Washington, to waken the members of congress and the senators to the outrage they will be permitting if they do not make a state of the "twin territories." The opinion is by Judge Townsend.

or

The fifth assignment of error in the case referred to was as follows: "The court erred in instructing thejury as follows: If the jury find from the evidence that there was one, two, or three or more any number interested in the larceny of this horse and the defendant was one of them, why it would make no difference if the other parties were not indicted and here on trial.'" Judge Townsend remarked as to this instruction: "Under the fifth assignment the court, in the instruction states, that if the jury should find one, two, or three or more were interested in the larceny, and the defendant was one of them, it would make no difference that the others were not indicted and on trial. We find no evidence in the record that authorizes such an instruction, unless we are to draw the inference that every one who associated with the defendant was a thief. We think this instruction was prejudicial to the defendant." The sixth was as follows: "The court erred in instructing the jury as follows: Now gentlemen of the jury, if you find beyond a reasonable doubt, from the testimony in this case, that the defendant, Robert George, at the time alleged in the indictment or about the time next before the finding of the indictment, conspired with others or combined with others and got up a kind of writing, an order

or affidavit, and presented the party who had possession of the horse, claiming that it was his horse, and put in this proof that it was his horse and by means of the papers shown by the defendant that Tate went to the field and brought the horse up to him and he put a rope around the horse's neck, claiming the horse was his own, and if you find he did this I instruct you that you find him guilty of larceny of the horse.'" The seventh is as follows: "The court erred in instructing the jury as follows: 'Now, right on that I want to say again, if you find from the testimony, and if you believe from the testimony that the witness Tate, voluntarily went and got the horse, and he was not induced to do this by the representation of the defendant, then his going and getting it would not be the defendant going and getting it. Under the state of facts it would be necessary for the defendant to take charge of the horse and move it, and if you find from the testimony that he put his rope on the horse and led him one step that would satisfy that part of the law called asportation. The eighth is as follows: "The court erred in instructing the jury as follows: 'If Tate was induced to go and get the horse, if this man sent Tate after it by showing the papers and claiming he was the owner of it and Tate went and got the horse and brought it to him, then that is sufficient asportation of taking and carrying off the horse, but, if the evidence does not satisfy beyond a reasonable doubt that Tate was so induced to do this, by the representation of this defendant and the producing this order or affidavit, then in order to perfect the larceny, it would be necessary that after this he, the defendant, took charge of the horse and the horse was moved.'" The ninth is as follows: "The court erred in instructing the jury as follows: 'If the testimony of the witnesses was that he, the defendant, led the horse before he was arrested, if you believe beyond a reasonable doubt that that is true, that is sufficient carrying away of the horse to satisfy the part of the law that we call asportation, regardless of going after the horse and bringing it.' The twelfth assignment is as follows: "Larceny among other things, consists of the unlawful taking without the consent of the owner, and the witness Tate, in this case, knew the horse did not belong to the defend

ant, and under the law Tate was the bailee of the owner of the horse, and if he turned the horse over to the defendant, at the time not believing the defendant was the owner of the horse, but for the purpose of letting the posseman have an opportunity to arrest the defendant, then the defendant would not be guilty of the crime of larceny." Judge Townsend remarks, p. 1123: "It is certaintainly apparent, from the testimony disclosed by this record that this case contains some peculiar characteristics." We are certainly inclined to agree with him. The editor of this journal has just returned from a trip of a month among the attorneys of northern Texas and the Indian Territory. The conditions in the Indian Territory we found deplorable. The attorneys we found as fine a lot of educated gentlemen as may be met with anywhere. The larger percent were graduates of Yale, Harvard, Princeton, Michigan, Chicago, Columbia, Kansas, Missouri, University of Virginia, and many other colleges. These, together with those who were not college graduates, will rank well with any of our state bars. There was but the one story everywhere of the impositions of congress in its administration of the judicial affairs of the territory. Though they have had some good judges in the past and even at present, they are the exception; and and it is discouraging to men learned in the law not to be able to practice before a court which is not fully capable of comprehending the finer and more subtle points of the law not purely technical, and which make for more exact justice. The sad part of the matter is that the conduct of those who should have the real welfare of the Indian Territory at heart should be responsible for such a result as the above record shows. It should shame them into decency and a proper consideration of the rights of the citizens of the Indian Territory, and if there is any good reason why the time is not ripe for statehood, congress should at least be giving that consideration to the rights of a people whose burdens have been gathering and whic cry aloud for relief. Years behind in their court work, and business interests lagging, the conditions would be a disgrace to congress but for the fact that "human nature must bear the greater part of the disgrace and share it with mankind."

NOTES OF IMPORTANT DECISIONS.

EXECUTORS AND ADMINISTRATORS-RIGHT TO SCE IN EQUITY IN FOREIGN JURISDICTION WITHOUT QUALIFYING UNTIL AFTER SUIT IS FILED. It seems now to be the settled rule in equity that a foreign executor may institute a suit in equity in a federal court to foreclose a mortgage belonging to the estate of his testator, and if the bill is filed within the time allowed by the statute of limitations his subsequent taking out, before the hearing, of ancillary letters testamentary or of administration in the local jurisdiction will relate back to the date of the filing of the bill, not only for the purpose of qualifying him to maintain the suit, but also for the purpose of the statute of limitation. This was the decision of the United States Court of Appeals for the eighth circuit in the recent case of Leahy v. Haworth, 141 Fed. Rep. 850. The court thus expresses itself: "The question for consideration is whether the filing of the last amended bill by complainant without having secured his appointment as executor in Nebraska until after the filing thereof is fatal to his right of recovery. In considering this question it should be borne in mind that complainant had an interest in the subject matter of foreclosing the mortgage in question even though he did not have a standing in court to do so. He was, by virtue of his appointment in Great Britain, the holder and owner of the note secured by the mortgage, and had a duty imposed upon him by law to collect it. No appointment as ancillary executor in Nebraska could add anything to his legal title or to his right to collect the same. Such ancillary administration is required as a matter of public policy to insure the satisfaction of local creditors out of local assets before they are withdrawn from the state or turned over to the domiciliary administrator for that purpose. This policy is equally subserved, whether the appointment as executor actually occurs before or after the institution of the suit, provided, only, that it shall be made before trial. From these considerations it is obvious that whether the appointment of an ancillary executor be made before the bringing of a suit or afterwards, but before the trial, is purely formal and technical. From the authorities we think the rule is well settled in equity practice, however it may be at law, that an executor named in a will may file a bill in his capaci y as executor before probate of the will and maintain an action as such executor, provided he secures probate of the will before the hearing of the cause. Learned counsel for appellant have favored us with no authorities sustaining the opposite view; neither have we, in our examination found such. Accordingly we are constrained to hold that the fact that Haworth had not qualified as executor in Nebraska on June 28, 1902, the time he filed his last amended bill (he having so qualified later, on September 20, 1902) is not a defense to the present action.

The qualification related back at leas to the date of filing the amended bill. The amended bill was filed two days before the statute of limitations would have barred the action. Whether, therefore, the amended bill related bac to the commencement of the action, which the authorities already cited indicate, is quite immaterial. The action in any event, was not barred by the statute of limitations."

The authorities fully sustain the court in its decision in the principal case. Thus, "in the case of Swatzel v. Arnold, 1 Woolw. 383. Fed. Cas. No. 13,682, Mr. Justice Miller, had before him a similar question. In that case the plaintiff brought in Nebraska his suit as administrator to foreclose a mortgage. His only right to sue as administrator rested upon his appointment by the probate court of a county in the state of Kansas in which decedent was domiciled at the time of his death. He held that the Kansas administrator might institute suit in the courts of Nebraska before taking out ancillary letters of administration in that state, and upon taking out such letters might by amendment show the fact. In that case he gives forcible reasons for the conclusion reached by him. He says: "The present plaintiff as administrator of the domicile had a right to receive for final distribution, the sum due on the mortgage. He had an inchoate right to be appointed administrator here, and if any one else had been appointed, that person would have been liable to account to him for what was in hand after paying the debts in that jurisdiction. The incapacity of the foreign administrator not being radical so as to entirely deprive him of power to proceed with his cause, the fact of his taking out letters in this state was matter which he might aver by amend. ment and maintain his suit thereon.

*

The impediment to the exercise of the full powers of an administrator in a jurisdiction foreign to that granting his letters is essentially technical and formal and should not be strained beyond its necessary application,'-citing Yeaton v. Lynn, 5 Pet. 224, 8 L. Ed. 105. Judge Ship. man in Black v. Allen Co. (C. C.), 42 Fed. Rep. 618, 624, 9 L. R. A. 433, after quoting with approval some of Mr. Justice Miller's remarks in Swatzel v. Arnold, supra, says: "The court early found relief in cases of equity from too strict adherence to technicality upon the ground that "in equity a plaintiff may file a bill as administrator before he has taken out letters of administration, and it will be sufficient to have them at the hearing, which is not the case at law." Therefore in Humphreys v. Humphreys, 3 P. Wms. 349, where the next of kin had brought a bill without administering, and the defendant demurred, the Lord Chancellor allowed the demurrer and then permitted the complainants to take out letters of administration, which, when granted, he said, related to the time of the death of the intestate, and to allege the same by way of amendment or by supple

* *

mental bill.' In the case of Humphreyɛ v. Humphreys (supra), a bill was filed by an administratrix as such. To this a plea was filed alleging that the taking of administration was subsequent to the filing of the bill. The Lord Chancellor (according to the report) with great clearness, and not without some warmth in respect of the delay, overruled the plea, observing that the mere right to have an account of the personal estate was in the plaintiff, * a8

she was the next of kin and it was sufficient that she had now taken out letters of administration, which, when granted, related to the time of the death of the intestate, like the case of an executor before his proving the will, brings a bill, yet bis subsequent proving the will makes such bill a good one, though the probate be after the filing thereof. In 1 Daniell's Chancery Pl. & Pr. p. 318, it is said: 'If an executor, before probate, file a bill, alleging that he has proved the will, such allegation will obviate a demurrer. He must. however, prove the will before the hearing of the cause, and then the probate will be sufficient to support the bill. although it bear date subsequently to the filing of it. In like manner, a plaintiff may file a bill as administrator before he has taken out letters of administration, and it will be sufficient to have them at the hearing.' Chancellor Kent, in Doolittle v. Lewis, 7 Johns. Ch. 45. 11 Am. Dec. 389, in discussing a kindred subject, says: If the party sues as executor or administrator, without probate, or taking out letters of administration, the taking them out, at any time before the hearing, will cure the defect, and relate back so as to make the bill good from the beginning. In a light so merely formal is that omission viewed.' Bates, in his work on Federal Equity Procedure (volume 1, § 52), says:‘In equity a plaintiff may file his bill as administrator before he has taken out letters of administration, and it will be sufficient to have the letters at the hearing, which is not the case at law. It is a general rule in equity pleading and procedure that facts which have occurred after the filing of the bill must be brought before the court by supplemental bill and not by way of amendment; but, as an exception to the rule, an executor or administrator appointed in one state may sue as such in another state and subsequently take out letters testamentary or of adninistration in the latter state, and set up that fact by way of amendment.' In the case of Hodges v. Kimball, 91 Fed. Rep. 845, 34 C. C. A. 103, the Circuit Court of Appeals for the fourth circuit had before it the same question we are now considering, and after an exhaustive examination and citation of authorities announced the rule in harmony with that already stated, to the effect that domiciliary administrators might institute a suit at law in a foreign state without having first taken out letters of administration, and might afterwards secure letters of adminis tration in that state and by amendment to their original cause of action make the same appear