This suit was pending in the name of the executors of Robert Pruitt. It is no alteration of the allegations to show that the persons entitled to the estate are minors. The cause of action remains the same — no new parties are introduced. The executor sues, avowedly, as the trustee of those entitled, whoever they may be. Nor is there anything in the Act of October 13th, 1870, to require what is there provided, in reference to the payment of taxes, to appear in the pleadings. Indeed, the very opposite would seem to follow, from the provisions of section 2d, that the defendant may make the investigation provided for without a plea. The rights of the parties are not involved. It is the public whose interest is intended by the statute to be protected, and there would seem to be no necessity to make a record of the proceeding for the protection of either.
We think the Court was wrong to require the amendment. It is sufficient to excuse the filing the affidavit, if the plaintiffs show, by proof, that the case is within the exceptions.
Judgment reversed.