390
FEDERAL REPORTER.
appear that any intimation was given to'Mr. Davis after that time of dissatisfaction with the terms of the lease, nor was he advised of any intention to assail it during his life·time. March 18; 1869, Mr. Davis made his will, by which he devised the remainder interest in this real estate to the defendant. Ten years thus elapsing after the lease was recorded by Mrs. Laughlin before Mr. Davis made his will, he was justified in the belief that he had the right and power to devise this remainder interest to whom he pleased, and for this reason, if there were no other, I am of opinion that complainant is estopped from assailing this lease now, and is not entitled to have the same declared void and a cloud upon her title. She wa;s fully cognizant of all the facts in relation to her title, and in relation to the execution of the instrument during the life-time of her father. To wait until after his death, and until after the death of most of the persons who could have had any knowledge of the transaction, and after her father, by will, had disposed of his than he estate, presumably, in some respects, in a manner would have done had he not believed himself possessed of this property, and then attack his will, would be inequitable and unjust. Many authorities have been read and commented upon by the learned counsel on both sides, who have presented the questions involved with an ability rarely equaled, in this court, at least; but, with the view I have taken of the facts of the case, the rules of law con. trolling it are elementary, and a citation of authorities would but ex. tend this' opinion, already too long, without throwing further light upon the issues involved. The result is that the relief prayed for in the bill must be denied, and the cause dismissed at oomplainant's costs.
THOMAS
v.
POLICE JURY OJ' PARISH OF TENBAB.·
(Cltrcuit Court, E. D. Louisiana. December, 1882.) 1. REVIVOR-REV.
ST. 955. The effect of the statut.e of 1789, (vol. 1, p. 90, § 31; Rev. St. 955,) is that the suit descends to the of the deceased party, be he heir, executor, or administrator, as the case may be. An acquired jurisdiction on the part of the United States circuit court will not be ousted by a state statute Which, but for that previously existing jurisdiction, would have vested it elsewhere.
*Reported by Joseph P. Hornor, Esq., of the New Orleans bar.
THOMAS V. POLICJn JUBY Oll' PABISH OF TENSAS.
.891
2. ADMINISTRATOR-NATURAL TUTRIX.
The natural tutrix of the minor children is, under the law. of Louisiana, clothed with the authority to administer the succession of the' estate Of the deceased parent.
Thomas,J. Semmes and Edw:LrdH. Fa,rrar, for , E. T. Merrick, W. H. Foster, and E. T. Merrick, .lr.,for BILLINGS, D. J. After the commencement of this suit the plaintiff died. He was at the time of the institution of the SlJit, as well as at the time of his death, a citizen of the state of Mississippi. Upon the suggestion of his death an order wjts entered that the suit be revived, and that Mrs. Virginia Thomas" widow of fOrmer plaintiff, have leave to prosecute the same as administratrix of his estate and as natural tutrix of her minor children. This hearing is upon a motion to va· cate that order as having been improperly entered. The facts which appeared upon the hearing, were as follows: death of B. R. Thomas; that he was domiciled in Mississippi; the appointment there of Mrs. Virginia Thomas as administratrix of his estate; and her recognition in this state as natural tutrix of the minor children. My conclusion is upon these facts that she may continue this suit. It has never been decided that under the statute (vol. 1, p.90, § order to revive a suit, 31) it was necessary for the administratrix, to have taken out letters within the state where the cause was pend· ing. The court is already seized .of jurisdiction, and the question would be whether the effect of the statute is not that the suit descends to the representative of the deceased party, be he heir or eltecutor or administrator, as the case may be, in such a way that the only ,proof necessary is of the death arid of that relation. But it is not necessary to consider that question in this case, for if we concede that it would be necessary to hold that the proof of administration must be the same to entitle a party to revive as to commence a suit, such an administration is established. The natural tutrix of the minor children is under our law clothed with the au· thority to administer the succession of the estate of, the deceased parent. In Bryant v. Atchison, 2 La. Ann. 464, the court says it is immaterial whether the property of a succession, in theory, vests partly in creditors or wholly in heirs; that the tutor of minor heirs may, as such tutor, administer the succession, and may bring suit. Whether she has omitted to give bond, or whether there are major heirs, is matter to be established by proof, and until so established will not be assumed.
in
392
So, the objection that the assumption of domicile in this state was pretended, cannot be heard in this forum. Whatever ground it might furnish for a revocation of the appointment in the court appointing, it cannot be listened to here. See, also, Labranche v. Trepagnier, 4: La. Ann. 561; Hair v. McD{lde, 10 La. Ann. 534:. In v. Smith, 10 Pet. 169, the person conducting the suit was only a non-resident administrator, appointed ad collegendum; and even there the court held the authority sufficient. It is also urged that under the Mississippi law of inheritance the widow inherits the portion of a child. 'rhis is true, but it is also true that the choses in action vest in the administrator or executor; therefore the right possibly to receive a portion of the fruits of the administration would not the right of Mrs. Thomas to maintain such a suit there as administratrix and here as tutrix. The exception is overruled, and the motion to vacate the order is reo fused. REVn"OR. The section extends to every action where the cause of action survives, (Hatfield v. Buslmell, 1 Blatchf. 893; 'l'1'igg v. Conway, Hemp. 711,) but is confined to personal actions, (Mackel' v. Thoma,y, 7 Wheat. 530; Green v. Watkins, GWheat. 260;) nor does it relate to or affect suits in admiralty, (The James A. Wrigl,t, 10 Blatchf. 160; but see J'he Norway, 1 Ben. 193.) 'fhe revivor of the suit by or against the representative of deceased is a matter of right, and is a mere continuation of the original snit, without distinction as to citizenship. Clarke v. Mathewson, 12 Pet. 164; S. C. 2 Sumn. 262. The death may occur before or after plea or issue joined, or before or after interlocutory judgment, and the proceedings are to be as if the representative was a voluntary party to the suit, (Hatch v. EmUs, 1 Gall. 160;) so it may occnr before entry of a decree from which an appeal was taken, (story v. L'ivingston, 13 Pet. 359.) The executor may be made a party on his own motion, but he must show that he is executor, and produce letters testamentary if required. Wilson v. Codman, 3 Cranch, 193. The suit will be continued in the name of the representative, (Richards v.Maryland Ins. Co. 8 Cranch, 84,) and the adverse party is not entitled to a continuance, (Wilson v. Codman, 3 Cranch, 193; Griswold v. Hill, 1 Paine, 483.) Upon a bill to revive, the sole question before the court is the competency of the parties and correctness of the frame of the bill to revive. Bettes v. Dana, 2 Sumn. 3tl3. On the marriage of afeme sole a scire facias may issue in the name of the husband and wife to enable her to proseeute the suit. McCoul v. Le Kamp, 2 Wheat. 111. A bill' of reYlvor cannot be brought against a representative in a state otber than whence their authority proceeds, (Mellus v. Thompson, 1 Cliff. 125;) nor can it be filed against an administrator of a defendant who neither appeared nor was served with process, (U. S. v. Fields, 4 BIatch£. 326.)-[ED.
UNITED STATES V. WILDER,
893
UNITED STATES
WILDER,-
(Oircuit Oourt, S. D. Georgia. November, 1882.) CRIMINAl, PRACTICE-REV. ST.
+866. A commission will be allowed to the defendant in a criminal caBe to take depositions of witnesses residing abroad, under section 866 ofthe Revised Statutes. Whether such depositions can be admitted in evidence upon the trial of the case, is a queRtion that'does not need to be decided until then; and if they be not allowed to go before the jury, in case of conviction will certainly be considered by the judge who Rhall be called upon to exercise the large discretion gi-ven by the statute in imposing sentence.
Information for: SmugRling. S. A. Dctrnell. Dist. Atty., for plaintiff. Henry R. Jackson, for defendant. P AnDEE, C. J. The defendant, who ,is charged by the United States attorney with smuggling, submits a petition and affidavit that he has witnesses beyond the United States who are material, to his defense, and he asks a dedimus potestatem to take the depositions of apsaid witnesses under section 866 of the Revised Statutes. plication is resisted by the district attorney on the grounds that it is unprecedented, and without authority, to take the evidence 6£ wit!Jesses in criminal cases by commission, and that the evidence, if taken, would be inadmissible on th.e trial. It is so abhorrent to all ideas of justice that a person cha.rged with crime shall not have full opportunity to make his defense by witnesses, that although I am not prepared to hold that evi'dence taken as proposed in this case will be admitted on the trial, I am of the opinion that the "ommission and opport.unity prayed for ought to be granted. Takinj:{ evidence in the manner asked in this case may be and probably is unprecedented in the United States courts in criminal cases, but I am informed is permitted in state courts of Georgia, and is allowed by statute in other states. At all events, the government cannot be seriously prejudiced by allowing this commission, as it will, of course, be at the expense of the defendant, and its admissibility will be determined on the trial. When the evidence is taken and the case comes on for trial, its scope, force, and effect can be seen, and its admissibility to go before the jury determined and if the defendant shall be deprived of his testimony before the jury because the law will not allow its consideration,' and the defendant shall be con""Heported by Joseph P. Hornor, Esq., of the New Orleans bar.