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1835, to claim under a note given in 1819, they , time they assumed the right to sell the lot, the should have gone into a court of equity before bank could not legally convey it, nor has a legal they could call on the trustee to sell. The deed title to it been made at any time by the bank. of trust gave only a naked power, and after the There was an existing encumbrance on the lot lapse of so many years, no sale could be made which the bank did not remove, and which under it. He had exceeded bis authority. bas, subsequently to the sale to the defendant Deeds of trust have the same effect as common in error, been enforced, and he is entirely delaw mortgages. In 1835, when Elgar under-vested of the property. He has paid the full took to execute the trust, there was no debt due consideration stated in the contract, and he now to the Patriotic Bank. A court of equity, as seeks to recover the same back from the bank. well as a court of common law, would have This is resisted, and this is the question in the presumed its payment.

On the part of the defendant in error There is no evidence that Samuel Lane had every principle of equity and justice is in full been sued upon the notes, or had ever suffered force. The bank would exempt itself from its damage, or been put to expense. The judgment obligations upon legal and technical grounds. of the Patriotic Bank on the notes was obtained But no objections on such grounds to the recov. in 1823, against the administrator of Lane. ery of the defendant in error will be found to

By the law of Maryland, a judgment becomes exist. 20 Johns. Rep. 15, 20; Sugden on Vendinoperative after twelve years; and this judg. ors, 6. Encumbrances on property are objecment was therefore invalid in 1835. The stat. tions to a valid title. 11 Johns, Rep. 525; 2 ute of limitations had created a complete bar Johns. Rep. 613; 12 Johns Rep. 190; 8 Wheat. to all claims on the notes of Orr, or on the 338; 12 Wheat. 64. judgment. The Patriotic Bank had no rights The authority of the agents of the bank to under either the judgment or the notes. sell may be inferred from the acts of the par•

The Bank of the Metropolis had therefore beties. The money of the defendant and his note come entitled, completely and exclusively, un were given to the bank for the property, and der the deed to Alexander Kerr, to the lot; for this property was acquired by the bank from if no proceedings could be had against Lane, one of its debtors for the payment of a debt. how could the deed of trust from Orr to Elgar This is authorized by the charter. be put in force ? No evidence could be intro This was a contract on the part of the bank duced to show the right of Elgar. It was at an to sell the lot, free from all encumbrances. end from time.

Cited, on this point, 1 H. Black. 270, 280; 3 The defendant in error did not show on the Bos. & Pull. 162; 4 Espinasse's Rep. 221; 2 trial a right to recover against the Bank of the Esp. Nisi Prius, 639, 640. Metropolis. He has no right of action. He Was there an outstanding legal encumbrance should have shown that he had tendered a on the lot, superior *to the title of the (*26 proper deed to the bank, to be executed; but Bank of the Metropolis, at the time they made this is not shown, or averred. He should have the sale to the defendant in error ? proved that a power to sell the lot had been It must be admitted that anyone interested given by the bank to the president and cashier; in the trust given to Elgar, might call on him but the Circuit Court did not require this. to execute it, and if he was willing to do his

The defendant in error was barred from su- duty, there was no necessity to call in the 25*] ing by his holding the deed for the lot, aid of a court of chancery. The Patriotic although it may have been defective, and by his Bank was the holder of the notes indorsed by holding possession under the deed, until he Lane; it was the cestui que trust. The bank had demanded a better one from the Bank of was not barred by time. Their judgment was the Metropolis.

interlocutory, and was not affected by the stat. All the counts in the declaration are defective ute of limitations of Maryland. The object of but the fourth and last, as they have no con- the deed of trust was to pay the notes, and thus clusion; and the conclusion to the last count is to indemnify the indorser. The bank had a inapplicable to the preceding three.

right to avail itself of the trust whenever it Messrs. Semmes and Bradley, for the defend became known to them. 3 Johns. Ch. Cases, ant in error.

261. It is extraordinary that after the pleadings The purchase of the lot by the Bank of the were made up in this case, a trial had, and the Metropolis was made subject to the deed of plaintiffs in error had taken four bills of excep- trust to Elgar. That deed was on record, and tions, objections to the declaration should be was notice, from its date, to all the world. first made in this court. The party thus object- Nothing but actual fraud can devest a mort. ing is too late: he has waived all right to take gage properly on record, and that fraud must such exceptions. All defects in the declaration be proved. Cited, the Recording Act of Mary. are cured by the verdict and by the statute of land, 1815; 1 Johns. Ch. Cases, 298, 394. jeofaile.

Another objection has been made. It is said So if the defendant in the Circuit Court had that although the length of time which had an objection to the form of the action, he should elapsed before the sale by Elgar would not bar have taken it by a plea. The contract is set a mortgage, yet it would bar a judgment. But out in the declaration. It is a contract for the to make a judgment a bar, the statute of limit. sale of the lot by the officers of the bank; and ations must be pleaded. It is not void, but it has been held that the accredited agents of may be made so by pleading the statute. There the bank have a right to bind it by their con was no plea of the statute in this case. tracts. Hatch v. Barr, 1 Ohio Reports, 390.

It is certain that the Bank of the Metropolis Mr. Justice Barbour delivered the opinion of made the contract set out in the record, and did the court: pot keep it with the defendant in error. At thel This was an action of assumpsit brought by

the defendant in error against the plaintiff in change, is sufficient, although the defendant error, in the Circuit Court of the United States, did not, in fact, do either of these acts himself, in the County of Washington and District of provided he authorized the doing of them. Columbia.

Chitty on Bills, 356, and the authorities there The declaration contains three special counts, cited. This principle has been applied, too in and a count for money bad and received. The actions ex delicto, as well as ex contractu. In 6 three special counts are all founded upon an Term Rep. 659, it was held that an allegation agreement in writing, which, after reciting that that the defendant had negligently driven his the plaintiff in the court below had bought of cart against plaintiff's horse, was supported by the defendant in the court below, lot No. 6, in evidence that defendant's servant drove the square No. 489, in the city of Washington, for cart. In this aspect of the question, it was one which he had paid a part of the purchase not of pleading, but of evidence. If, on the money, and executed his note for the residue, contrary, the act were one in their regular line contains the following stipulation: "The Bank of duty, then, of course, the averment was un. of the Metropolis, through the president and necessary. In_the case of Fleckner v. The cashier, is hereby pledged, when the above United States Bank, 8 Wheat. 358, the court de. sum (that is, the amount of the note) is paid, to clare the point to be settled "that a corporation convey the said lot, viz., lot No. 6, in square 489, may be bound by contracts not authorized or in fee-simple, to the said Ernest Guttschlick, executed under its corporate seal, and by con: his heirs or assigns, forever.”. Each of these tracts made in the ordinary discharge of the counts avers the payment at the time agreed of official duty of its agents and officers." the amount of the note, and the failure of the The next objection which was raised to the bank, on demand, to convey the lot. At the declaration applied to the second count, viz., trial several bills of exception were taken, and that the averment that the plaintiff was turned a verdict was found, and judgment rendered in out of possession was insufficient in this, that it favor of the plaintiff. To reverse that judg. is not averred to have been by process of law, ment, this writ of error is brought.

or by the entry of one having lawful title. If In the argument at the bar, various objec. entry and eviction were the ground of the ac. tions had been urged to the sufficiency of the tion, or constituted the gravamen of the count, declaration, which we will briefly notice in the as in covenant on a warranty, *or for [*28 order in which they were made.

quiet enjoyment, then, indeed, a declaration or The first objection is that the special counts count would be defective which omitted to aver 27") have no conclusion. *There is certainly that the plaintiff was evicted by due process of no formal conclusion to either of these counts. law, or by the entry and eviction of one who, Each of them, after alleging the breach, ter at the time of the covenant, bad lawful title to minating with the words, Whereby, etc." the land; and having such title, entered and Whether counts thus concluding would have evicted the plaintiff; or which did not contain been sufficient upon a special demurrer in the some averment of equivalent import. But upcourt below, it is not necessary to decide; be on examining the count in question, it will be cause we are clearly of opinion that the 32d found that although this averment is contained section of the Judiciary Act would cure the in that count, it is mere surplusage; because the defect, if it were admitted to have been one. breach alleged is that the defendant refused, on

The second objection which was taken applies demand, to convey the land. There is nothing, to the first count, viz., that the agreement sued therefore, in the objection, as apllied to this on is averred to have been made by the bank, count; because it would be good without aver"through the president and cashier," without ring any eviction whatsoever. averring their authorization by the bank to The next objection to the declaration applies make it. We consider this objection as wholly to the third count, and it is this: that the untenable. The averment in this count is that plaintiff, in that count, treats the agreement as the bank, through these officers, agreed to con- importing an undertaking on the part of the vey the lot. Now, even assuming, for the sake bank to convey the lot in fee-simple, by a good of giving the objection its full force, that the and indefeasible title, free from encumbrances. making of this agreement was not within the In the view which we have taken of this subcompetency of these officers, as such, yet it was ject, it is unnecessary for us to decide whether unquestionably in the power of the bank to the agreement does or does not import such an give authority to its own officers to do so.undertaking on the part of the bank as is When, then, it is averred that the bank, by ascribed to it in this count of the declaration. them, agreed, this averment in effect imports This count contains an averment that the bank the very thing, the supposed want of which was not at the time of the agreement, or at any constitutes the objection because, upon the as. time after, seized or possessed of the lot in sumption stated, the bank could have made no fee-simple. We have seen that the language of agreement but by agents having lawful author. the agreement is that the bank was to convey ity. Nay, it would have been sufficient, in our the lot in fee-simple to the defendant in error, opinion, that the bank agreed, without the his heirs, or assigns forever. Now, it appears words, "through the president and cashier:" from the record that the bank claimed under for it is a rule in pleading that facts may be a deed from Alexander Kerr, who sold the lot stated according to their legal effect. Now, the as trustee, under a deed of trust from Orr, the legal effect of an agreement made by an agent former owner, made to secure certain debts for his principal, whilst the agent is acting therein stated, which deed of trust was exwithin the scope of his authority, is, that it is ecuted on the 8th of September, 1819. But Orr the agreement of the principal. Accordingly, it had previously, to wit, on the 6th of August, is settled that the allegation that a party made, 1818, conveyed the same lot, in fee-simple, to accepted, indorsed, or delivered a bill of ax: Joseph Elgar, as trustee, for the purpose of

securing certain debts therein stated, and with proven, the objection resolves itself simply in a power to sell, in certain events therein men question of the order in which evidence was to tioned; one of which was that Samuel Lane, be given. who was indorser of a note of three thousand We think that there is nothing in it. It was dollars, secured by this last deed, should be as competent for the party to prove the au. sued, which event occurred as early as the year thority after, as it was before, giving the 1820. Now, from this state of facts, it is ap- agreement in evidence. parent that at the date of the agreement, the The second exception was taken to the court's bank was not seized of the fee-simple which it admitting in evidence a letter from defendant contracted to convey. If the deed of trust in error to plaintiff in error, and the testimony to Elgar de considered as a mortgage, then the of a witness that he had examined the recorda moment it was executed, the legal estate in fee for the purpose of tracing the title of the de. simple was in Elgar, subject to be defeated fendant in error to the lot in question; and upon the performance of the condition, and so also a deed purporting to be executed by John continued in him, from that time down to the P. Van Ness, president of the Bank of the year 1835, when, under the trust deed he sold Metropolis, to the defendant in error. The let. and conveyed the lot to the Patriotic Bank, ter was merely to inform the plaintiff in error which purchased at the sale. The interest of of the sale then advertised to be made of the the mortgageor, according to the common law, lot in question, under the deed of trust from is not liable to execution as real estate. 8 East, Orr to Elgar. The examination of the records 467; 5 Bos. & Pull. 461. It is treated as equito made by the witness, was made for the purable assets. 1 Vesey, 436; 4 Kent, 154. In con- pose of enabling the defendant in error to deformity with this doctrine, this court decided cide what course to pursue in relation to the (12 Peters, 201) that the wife of a mortgagor property. We see nothing objectionable in the was not dowable; and in 13 Peters, 294, that admission either of "the letter or the tes. (*30 the equity of redemption could not be taken in timony of the witness. The plaintiff in error 29*] execution under *a fieri facias. If this certainly was not injured by its admission. be so in the case of a mortgage, the principle The property which the defendant in error had applies more strongly in case of a deed of trust, bought being about to be sold, he causes an exbecause the interest of the mortgageor, such as amination to be made that he might know what it is, is so far protected by a court of equity ground he stood on; then, out of abundant cau. that the mortgagee cannot foreclose without a tion, he wrote the letter giving notice of the decree in equity; and even in that decree a sale, so that the other party might pursue short time is allowed to the mortgageor, within whatever course they thought best for their which to redeem by paying the debt: whereas, safety. The most that can be said of it is that in the case of the trust, unless in case of some he thereby proved that he had done more than extrinsic matter of equity, a court of equity he was bound to do. For if he had chosen, be never interferes; and the only right of the might have rested upon his contract, without grantor in the deed is the right to whatever troubling himself either in examining records surplus may remain after sale, of the money or giving the other party notice. Nor have we for which the property sold. There was, any doubt as to the admissibility of the deed; then, a good cause of action, on the ground some of the counts in the declaration charged that the bank had not the fee-simple which it as a breach of the agreement the failure of the contracted to convey.

other party to make a deed; a paper haviug We think, then, that the declaration is not been executed having the form of a deed, it was liable to any of the objections which have been altogether proper then to give it in evidence, to urged against it.

show that being sealed, not with the corporate Nor have we any doubt but that the action seal, but with that of the president of the bank, well lies against the bank. For although the it was no deed; and thus sustain the allegation agreement is under seal, it is not the seal of the that no deed had been made. It is clear beyond corporation, but that of the president and cash. doubt that a paper such as this, not under the ier. It was decided in the case of Randall v. corporate seal, is not the deed of the bank, in Vanvechten, 19 Johns. Rep. 60, that covenant contemplation of law. would not lie against a corporation on a con. The third exception was taken to the court's tract not under their corporate seal, but that receiving in evidence the record of a suit by an action of assumpsit would lie; and that it the Patriotic Bank against Lane, for the purmakes no difference, in regard to a corpora pose of showing that Lane had been sued upon tion, whether the agent is appointed under seal a note for three thousand dollars, mentioned in or not, or whether he puts his own seal to a the deed from B. G. Orr to Elgar, dated Au. contract which he makes in their behalf, the gust 20th, 1818. We think that this record doctrine of merger not applying to such a was properly admitted; for one important ques. case. This doctrine we approve, and it is de- tion in the cause was, whether the occasion had cisive of the objection.

occurred which justified Elgar, the trustee, in We come now in order to the exceptions the deed of trust from Orr, to sell the lot in taken at the trial.

question. Now, one of the provisions of that The first was the court's admitting the deed authorized him to sell, whensoever Lane agreement declared upon to be given in evi. should be sued on the note for three thousand dence until some evidence was previously dollars, given by Orr to the Patriotic Bank and given, showing the authority of the parties who indorsed by Lane, and to pay off that note to executed it, to sign it.

the bank. Now, this record proved that Lane Assuming, argumenti gratia, as we have be- had been sued, that therefore the casus fæderis fore done as to this point, that the transaction has occurred, that the land was rightfully sold, was such that an authority was necessary to be and therefore we think it was admissible for

the purpose for which it was offered. But it deed of trust, we ind in it a provision, that upwas argued that the note stated in the deed of on Lane's being sued, the trustee shall sell the trust as the one indorsed by Lane, purported lot, and after paying the expenses of the sale, to be negotiable at the Patriotic Bank, and apply the proceeds to the discharge of the notes that the note declared upon in the record did of Orr, indorsed by Lane, of which the note not purport to be negotiable at that bank, and on which the suit was brought against Lane that there was therefore a variance. If the was one; so that this agreement fails in its question had been raised in the suit brought foundation. We entirely concur with the docupon the note, it might have been considered trine laid down in 1 Johns. Ch. Rep. 205; 3 a misdescription; but in this case it was of. Johns. Ch. 261, that where a trust is created fered in evidence to the jury to prove the fact for the benefit of a third party, though without that Lane had been sued; it was a question for his knowledge at the time, he may affirm the the jury to consider whether this evidence was trust, and enforce its execution. The truth is, sufficient to satisfy them that it was the same that although the object of the deed of trust debt as the one described in the deed from was to secure Lane, its provision that, in the Orr to Elgar, and therefore the principle of law event which happened of his being sued, the that the allegations in the parties' pleadings property should be sold, and the notes which and their proofs shall correspond, has no ap- he had indorsed should be paid, was the most plication.

effectual means of attaining that *object: [*32 The last exception, after setting out certain these notes were due to the bank, were held by evidence given by the plaintiff, without even it, and in paying them, therefore, the money stating that it was all the evidence, states that must be paid to the bank. Hence the trustee 31'] *the defendant prayed an instruction was authorized to sell at its instance, and to that upon that evidence the plaintiff was not pay it the amount. entitled to recover either upon the first, or It was also argued that the judgment against second, or third, or fourth counts in the dec- Lane was barred by the act of limitations, and laration; which instruction the court refused that, therefore, the trustee was not authorized to give; and we think very properly. Whether to sell for the purpose of paying a debt which evidence is admissible or not is a question for could not be enforced; the provision of the deed the court to decide; but whether it is sufficient which we have already referred to, furnishes or not to support the issue, is a question for the an answer also to this objection; for even if it jury. This court said in The United States v. were barred, the claim was in full force, under Laub, 12 Peters, 5, “It is a point too well set the trust in the deed. For, although the judgtled to be now drawn in question, that the ef- ment extinguished the right of action upon the fect and sufficiency of the evidence are for the note, yet upon well established principle it did consideration and determination of the jury.” not operate at all, by way of extinguishment And this proceeds upon this obvious principle. of the collateral remedy under the deed of trust, It is the province of the jury to decide what though it had relation to, and was intended to facts are proven. It is competent to them to secure the payment of the same note. The redraw from the evidence before them, all such sult, then, of this state of things is, that the inferences and conclusions as that evidence property bought by the defendant in error, of conduces to prove. If the court were to tell the plaintiff in error, was legally sold under an them that upon a given state of evidence the elder subsisting lien; and thus he was utterly plaintiff could or could not recover, then they devested of als title, so as to show an entire must in the assumption of what facts were failure of the consideration for which he paid proven, either discard from their consideration bis money, and to enable him to mai such inferences as the jury might draw, or they action for money had and received, to recover must themselves deduce them. The first course it back. would injure the party offering the evidence; We think that there is no error in the judgthe second would be an usurpation of the office ment; it is, therefore, affirmed with costs. of the jury. The only case in which the court can make such inferences, and pass upon the

This cause came on to be heard on the tran. sufficiency of the evidence, is by a demurrer to script of the record from the Circuit Court of evidence. This would be the case, even if the the United States for the District of Columbia, bill of exception professed to state all the evi and was argued by counsel; on consideration

holden in and for the County of Washington, dence; but the one which we are now consider: whereof, it is ordered and adjudged by this ing does not profess to do this, and we cannot court that the judgment of the said Circuit assume that it was all. For aught that ap | Court in this cause be, and the same is hereby pears on this record, there was other evidence; affirmed, with costs and damages at the rate of it is enough, however, that it does not appear six per cent. per annum. that the evidence stated upon which the instruction was asked, was all. Having now finished our examination of the

‘ELIAS KANE, Plaintiff in Error, [*33 Beveral exceptions, we will very briefly notice some points which were pressed upon the consideration of the court. "It was said that the GABRIEL PAUL, Executor of Edward Cour.

sault, Deceased. deed of trust from Orr to Elgar, under which the lot in question was sold, was made to in Letters of administration with will annexed demnify Lane as indorser of Orr's note; that granted in District of Columbia while executhe Patriotic Bank had no right to call upon tor lived, void--executors appointed in any the trustee to sell it; that its only right was in State have right to recover from an individa court of equity to ask to be substituted to ual in the District of Columbia effects belong. the rights of Lane; but upon examining the ing to his testator-practice.




Letters testamentary to the estate of Edward The declaration in an action by an executor for Coursault, a merchant, who had died at Baltimore, the recovery of money received by the defendant were granted to Gabriel Paul, one of the executors after the decease of the testator, may be in the named in the will. The other executor, Aglæ name of the plaintiff, as executor, or in his ( 34 Coursault, the wife of Edward Coursault, did not own name, without stating that he is executor. qualify as executrix, nor did she renounce the exe- The distinction is, that when an executor sues on cution of the will. Afterwards, on the application cause of action which occurred in the lifetime of uf Aglæ Coursault, stating she was executrix of his testator, he must declare in the detinet, that is, Edward Coursault, accompanied with a power of in his representative capacity only; but when the attorney, given to her by Gabriel Paul, the quall. cause of action accrues after the death of the tesfed executor, who had removed to Missouri, the tator, if the money when recovered will be assets, commissioners, under the treaty of Indemnity with the executor may declare in his representative France, awarded to the estate of Edward Cour character, or in his own name. sault, á sum of money, for the selzure and consiscation of the Good Friends and cargo, by the French government. During the pendency of the

N error to the Circuit Court of the United claim before the commissioners, Aglæ Coursault States for the County of Washington, in died; and letters of administration, with the will the District of Columbia. annexed, were, on the oath of Thomas Dunlap, that the widow and executrix of Edward Coursault was

Edward Coursault, then a merchant of the dead, granted by the Orphans' Court of the County city of Philadelphia, in December, 1809, was of Washington, in the District of Columbia, to the the owner of the brig Good Friends, and part plaintiff in error, Ellas Kane, a resident in Wash: of her cargo. Both the brig and cargo were was paid to Ellas Kane, by the government of the seized at Morlaix, in France, by order of the United States. Gabriel Paul, the executor of Ed French government, and were confiscated. ward Coursault, brought an action against Ellas Kane for the money paid to him. Held, that he

In 1825, Edward Coursault died in Balti. was entitled to recover the same. The letters tes- mire, where he resided at the time of his detamentary granted in Maryland, entitled the exec: cease; and by his will, dated August, 1814, he utor of Edward Coursault to recover, without his appointed Aglæ Coursault, his wife, his execthe Orphans' Court of Washington repealed or re- utrix, and Gabriel Paul his executor. voked.

On the 27th August, 1814, letters testamenAt common law, the appointment of an executor tary of the will were granted in Baltimore to vests the whole personal estate in the person in Gabriel Paul. pointed executor, which he holds as trustee for the

Mrs. Coursault did not qualify, purposes of the will, and he holds the legal title in nor did she renounce, as executrix. Some time all the chattels of the testator; and, for the pur. afterwards, Gabriel Paul removed to the State pose of administering them, is as much the proprietor of them as was the testator. The ordinary of Missouri. cannot transfer those chattels to any other person The claim of the estate of Edward Cour. by granting administration of them.

The Act of Congress of the 24th June, 1812, sault, for indemnity for the seizure and confisgives to in executor or administrator, appointed in cation of the brig Good Friends and cargo, hav. any State of the United States, or in the territories, ing been provided for by the convention bea right to recover from any individual within the tween the United States and France, concluded District of Columbia effects or money belonging to the testator or the intestate, in whatever way the at Paris in July, 1831, Agle Coursault, styl. same may have been received, if the law does not ing herself the widow and executrix of the last permit him to retain it, on account of some rela

will and testament of Edward Coursault, in tions borne to the testator or to his executor, which defeat the rights of the executor or administrator: January, 1833, presented a memorial to the tlon obtained in either of the States or territories convention into effect, claiming indemnity for and letters testamentary or letters of administra board of commissioners appointed to carry the them to receive and give discharges for such assets, the seizure and confiscation of the brig and without sult, which may be in the hands of any cargo. person within the District of Columbia. The right

The memorial stated the death of Edward to receive from the government of the United States, either in the District of Columbia, or in the Coursault, the appointment of the memorialist State where letters have been granted, any sum of and Gabriel Paul executors, by his last will, money which the government may owe to the tes: that letters testamentary were granted to the tator or Intestate at the time of his death, or which memorialist and Gabriel Paul; and the memo may become due thereafter, or which may accrue to the government as trustee for a testator or in rial also states that whatever amount of said testate, in any way or at any time, is given by that claim may be awarded under said convention, act. trator, which was due to the estate, is a legal dis- will belong solely and exclusively to the mecharge to the debtor, whether the administration morialist, as executrix of the last will and testbe void or voidable.

The certificate of the Register of Wills, annexed ament of the said Edward Coursault, deceased. to the proceedings of the Orphan's Court of Mary

Together with the documents presented to land, giving letters testamentary to the executor, the commissioners, showing the property of the shows that the will had been proved, and that the Good Friends and part of her cargo to liave proof that the person holding the letters testa. belonged, at the time of the seizure and configmentary is executor, as far as the law requires It cation, to Edward Coursault, there was a power ito be proved, in an action of assumpsit upon a of attorney from Gabriel Paul, as “adminiscause of action which arose in the time of the tes-trator of the estate of Edward Coursault,” to tator or of the executor. On the plea of the gen. eral Issue in such an action, and even in a case Mrs. Aglæ Coursault, authorizing her to prewhere that plea raises the question of right or title sent in his name to the commissioners of the in the executor, the certificate of probate and qual- United States the claim of the estate of Edward Acation meets the requisition. Ination into their validity can only be gone into Coursault, promising to present himself before upon a plea in abatement, after oyer has been them as soon as required. craved and granted ; and then, upon issue Joined,

The commissioners awarded the sum of geven the plaintiff's title, as executor or administrator, may be disputed, by showing any of those causes thousand eight hundred and sixty-four dollars which make the grant void ab initio, or that the in favor of the claimant. administration had been revoked,

On the 27th of March, 1837, an affidavit was

made and presented to the Orphan's Court of NOTE. -As to the effect of the probate of wille in another state, see notes to 6 L. ed. U. S. 367, 689, I *Columbia, stating that Edward Cour. [*35

the County of Washington, in the District of and 48 L.R.A. 130.

Peters 14.

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