sault had died in the city of Baltimore in 1814, and that Agle Coursault, his widow and executrix, had died about two years before the making of the affidavit. the personal estate of an intestate, or decedent, is to be distributed according to the local law of the place where it may be. administration of the deceased is within the district, and there are personal effects belonging to the deceased within the same. Nor can the Act of Congress of 1812 be con On the 29th of March, 1837, the judge of the strued to take away the authority to issue letOrphan's Court directed letters of administra-ters of administration in this district, when no tion, with the will annexed, to be issued upon the estate of Edward Coursault, to Elias Kane, Esquire; and the sum awarded on the claim of Agle Coursault by the commissioners, was paid at the Treasury of the United States to Mr. Kane, as the administrator. Gabriel Paul, in November, 1837, as executor of Edward Coursault, having taken out letters of administration in the District of Colum- | bia, instituted a suit in the Circuit Court of the County of Washington against Elias Kane, for the recovery of the sum paid to him by the United States; and at November Term, 1838, the cause was tried, and a verdict and judgment were rendered for the plaintiff. At the trial, the defendant in the Circuit Court gave in evidence an exemplification of the letters of administration granted by the Orphan's Court of the County of Washington; but the court directed the jury that they were no bar to the action of the plaintiff. The defendant excepted to this opinion of the court. And the plaintiff having offered in evidence the award of the commissioners, the power of attorney from the plaintiff to Agle Coursault (by copies from the State Department) and his letters testamentary, with a copy of the will annexed; and having proved that the plaintiff was then living, the court directed the jury that the plaintiff, if the said evidence was believed, was entitled to recover the amount received by the defendant under the award. The defendant excepted to this direction of the court, and prosecuted this writ of error. The cause was argued by Mr. Key, with whom was Mr. Kane, for the plaintiff in error, and by Mr. Coxe and Mr. Semmes for the de fendant. Mr. Key, for the plaintiff in error, contended that the letters of administration granted to the plaintiff in the District of Columbia, were not void, and that the instructions of the Circuit Court were erroneous. If there had not been special legislation on this subject, no doubt could be entertained of the invalidity of the letters of administration granted to Gabriel Paul in the District of Columbia, after those which had been granted to the plaintiff in error. By the general law, administration is to be granted in the place where the property of the deceased person is found; and letters testamentary drawing their authority from a different State or country, have no validity. 9 Wheat. 571; Smith v. The Union Bank of Georgetown, 5 Peters, 518; Story's Conflict of Laws, 422, 429-433, 436, 439; 20 Johns. Rep. 265. The special legislation by the Act of Congress of 24th June, 1812, was not intended to make a general change on this subject. It 36*] *meant only to authorize suit to be brought on foreign letters of administration, or letters of administration granted out of the District of Columbia. The court will lean in favor of this construction of the act; and by giving it this limitation will prevent, as far as possible, the infraction of the principle that The law does not take away this jurisdiction of the Orphan's Court of the County of Washington to issue letters of administration. While it authorizes a foreign administrator to come into this district, it leaves the authority of the Orphan's Court as it existed before the act. Such a construction of the law would be most unreasonable, and would produce great difficulties and inconveniences. There is no power to compel a foreign administrator to come into this district and collect the assets of the estate. Thus the personal property of a decedent might be wasted and lost. But to construe the law as is contended for by the plaintiff in error, is to give it all the efficiency requisite, and essential to the purposes of the legislation. The foreign administrator may institute suits in the district; but over assets which are in the district, an administrator duly appointed by the Orphan's Court, before the foreign administrator comes here, has full and exclusive control and authority. In support of this construction of the act of Congress, the counsel cited The United States v. Fisher, 2 Cranch, 35; Baldwin C. C. Rep. 316; Cowper, 391; 6 Dane's Abridgment, 601, 593; Foster's case, 11 Coke's Rep. 64 a. The power given to an administrator in the district is to collect and administer the estate of the intestate according to the lex rei site. After his appointment he cannot excuse himself for neglecting to collect the assets of the estate by alleging that there was another and a foreign administrator: nor would the payment of a debt to a foreign administrator, by a person in the district, be a bar to the claim of an administrator appointed here. Suppose an administrator appointed in the district should have brought suits, would they abate when a foreign administrator comes here? It is admitted that the Act of Congress of 1812 may be interpreted to give concurrent powers to foreign and domestic administrators, but not to make the powers of the foreign administrator exclusive. Story's Conflict of Laws, 431. There is another view of this question. This is not a debt which was due to the intestate in his lifetime. It is money of the estate which came into this district in 1827, and the letters testamentary, granted in Baltimore, were issued to Gabriel Paul in 1814. The action in the Circuit Court was not for money due to the testator, but due to the executor of Coursault. The action is not, therefore, authorized [*37 by the act of Congress, as it authorized suits by the representative of a decedent; but this is a suit in his own right by the executor. A suit may be brought by an administrator for the recovery of a debt due to him, contracted with him in his capacity of administrator, after the decease of his intestate. 4 Mason C. C. Rep. 34. But the act of Congress gives no power to sue, except in cases where action can be brought on letters of adminis tration for debts to, or on contracts with, the intestate. It has no application to suits which a party might institute without letters of administrations; such as suits for claims by the administrator on debts due on contracts or obligations which have arisen after the decease of the party represented by him. An objection lies to the original letters testamentary granted in Baltimore to Gabriel Paul. The will of Edward Coursault appointed two executors, and yet without any renunciations by Agle Coursault, the letters testamentary are issued to Gabriel Paul alone. This is contrary to the Testamentary Act of February, 17/7, ch. 8. tor to sue, cited, Biddle v. Wilkins, 1 Peters, 486; 1 Ventris, 535; 1 Mod 213; 2 Mod. 149; Hobart, 46; 2 Lord Ray. 701; 1 Williams on Executors, 155. An administration granted, where there is an executor is void. 3 Bos. & Pull. 30; Toller on Executors, 120; 8 Cranch, 1. Mr. Justice Wayne delivered the opinion of the court: It appears in this case that Edward Coursault being domiciled in Baltimore, died there in the year 1814; and that by his will, dated the 13th August, 1814, he appointed Aglæ Coursault executrix, and Gabriel Paul executor. On the 27th August, 1814, letters testamentThe counsel for the defendant in error stated ary were granted in Maryland to Gabriel Paul that the application to the commissioners un--Paul is still alive. Edward Coursault being der the treaty of indemnity with France, was the owner of the brig Good Friends, and part made by Aglæ Coursault acting as executrix of her cargo, both were seized and confiscated of her husband, and under a power of attorney at Morlaix, in the year 1809, by the French from Gabriel Paul, who had regularly proved government. the will and taken out letters testamentary. Paul, the qualified executor of Coursault by The award of the commissioners was to the a power of attorney, dated the 18th of October, executor; this was regular. The sum awarded 1832, he being then a resident of Missouri, emwas the property of the estate of Edward Cour-powered Agle Coursault to present a memosault, being an indemnity for the seizure of his property in his lifetime, and the claim for a recompense for this injury passed to the executors of his will. rial in his name to the board of commissioners appointed under the act of Congress to carry into effect the convention between the United States and His Majesty the King of the French, Thus situated, and Agle Coursault having concluded at Paris on the 4th day of July, 1831, died, the plaintiff in error came forward; and for the claim of the testator to indemnity, on disregarding the rights of the defendant in account of the confiscation of the Good Friends error, which were his by the letters testament- and her cargo; stating in his power that he ary, and by the award of the commissioners would present himself before the board of comunder the treaty, he obtained possession of this missioners as soon as he might be required. money under letters of administration granted Under this power Agle Coursault memorialized to him in the District of Columbia. He did the commissioners; in which memorial, after not come forward as a creditor of the estate of reciting the seizure and confiscation of the Edward Coursault, but as a stranger, and took Good Friends and her cargo, what the cargo possession of the fund. This was an illegal was, the value of the vessel and her freight, interference with the rights of the executor, and that Edward Coursault had incurred great and cannot be allowed. The provisions of the expense in defending his rights; it is said, letact of Congress on the subject of the claims un-ters testamentary were granted to herself and der the treaty with France have been violated; | rights clearly vested under the law and by the award of the commissioners have been disregarded. Gabriel Paul, and that whatever sum may be awarded upon the claim, it would belong exclusively to herself. The commissioners made an award in favor of the claim. The fund awarded under the treaty with France was not assets in the District of Co- After this award was made, Kane, the appellumbia. The claim had been presented on the lant, applied to the Orphan's Court of the part of the representatives of a merchant of County of Washington, in the District of CoBaltimore, for the seizure of his vessel and car-lumbia, for letters of administration upon the go; and the United States having received the money from France, were trustees for the claimants to distribute the same among them. If this fund had any location, it was in Baltimore; there the United States were bound to pay the amount awarded to the executor of Edward Coursault. In point of fact the money was paid in New York, as there it had been 38*] kept by the United States when received from France. All that was required was the presentation of the award of the commissioners to the agents of the United States in New York. The action in the Circuit Court was properly brought. But if this was not so, the exception should have been taken by a plea in abatement. The plea of the general issue admits the right of the executor to sue. 8 Wheat. 542; 1 Peters, 386; 4 Peters, 500; Baker v. Biddle, Baldwin's CC Rep. 394. To show the right of the execu estate of Edward Coursault; and upon an affidavit of Thomas Dunlap, stating that the widow and executrix, Aglæ Coursault, was dead, an order was made to issue letters of administration to the appellant, upon the estate of Edward Coursault and letters of administration de bonis *non, with the will annexed, [*89 were given to him, he having entered into bond with Thomas Dunlap and John K. Kane, as securities for the faithful performance of his duties. Kane applied for, and received from the proper department of the government, a part of the sum awarded by the commissioners upon the claim of Edward Coursault; and this suit was brought by Gabriel Paul, the executor, to recover from Kane the money he received, in his character of administrator de bonis non, cum testamento annexo. The declaration contains three counts, in each of which the plaintiff claims as executor. I see in them any alteration of the legal conseThe defendant pleaded non assumpsit; and quence resulting from the grant by that court issue being joined, a jury was called to try the of letters of administration, in case of a will, issue. On the trial, besides other evidence, when there is an executor not disqualified by the plaintiff produced his letters testamentary, law, or who has not been excluded from acting granted in 1814, in Maryland; and the defend- in conformity to law. The grant of adminisant offered in evidence an exemplification of tration is void, as at common law. The powers the letters of administration granted to him by given to the court are intended to protect the the Orphan's Court of Washington County, rights of executors; not to enlarge its jurisdicDistrict of Columbia, in 1837. tion to transfer them to another person. The action of the court, to be effective to grant administration upon a will, an executor being alive, and capable of acting, must be within its powers. If not, the administration will be void. This conclusion is sustained, too, by the confined within its jurisdiction by the statute of 1798, ch. 101, sub. ch. 15. "The said Orphan's Court shall not, under any pretext of incidental power or constructive authority exercise any jurisdiction whatever not expressly given by this act or some other law." The court charged the jury that the letters of administration offered by the defendant were no bar to the plaintiff's action; but that the plaintiff's letters testamentary and the other evidence, if believed by the jury, entitled him to recover the amount the defendant had re-stern manner in which the Orphan's Court is ceived upon the award of the commissioners, according to the certificate of that amount given by John H. Houston, a clerk in the fifth auditor's office. The jury gave a verdict in favor of the plaintiff, the defendant having first excepted to the instructions of the court. The point, then, made by this exception to The letters being void, the person named in the instruction of the court is, do the letters them cannot retain from the rightful executor testamentary, obtained by the plaintiff in the testator's effects; upon the plea, that he Maryland, prevail over the letters of adminis- may do so until the letters have been revoked tration de bonis non, cum testamento annexo, by the court which granted them. The appeargiven to the defendant in the District of Co-ance of an executor with proof of the will and lumbia, so as to entitle the former to recover letters testamentary, subsequently to the grant from the latter the money received by him in of letters of administration in a case where it such character, without a repeal or revocation was supposed there was no will, is of itself a of such letters? revocation of the latter; and so is the Maryland law. Dorsey's Maryland Testamentary Law, 4, sec. 77. The answer to that question will depend upon the legal character of the letters granted to the defendant. Are they void or voidable? In this case, then, though the right of the plaintiff to sue in the District of Columbia as given by the Act of Congress of the 24th June, 1812, Davis's Dist. Laws, 266, his right to recover rests upon the legal conclusion that the defendant never was administrator to administer the effects of the testator; the act of the Orphan's Court naming him such, being void, ab initio. His right under that act is, to "maintain any suit or action, and to prosecute and recover any claim in the District of Columbia in the same manner as if his letters testamentary or administration had been granted by the proper authority," etc., etc., “in such In Com. Dig. Adm. B. 1, it is said, If there be an executor, and administration be granted before probate and refusal, it shall be void on the will being afterwards proved; although the will were suppressed or its existence were unknown, or it were dubious who was executor, or he were concealed or abroad at the time of granting the administration. So in Com. Dig. B. 2, B. 10, If there be two executors, one of whom proves the will and the other refuses, and he who proves the will dies, and administration is granted before the refusal of the survivor, subsequently to the death of his co-ex-district." ecutor, or if granted before the refusal of the executor, although he afterwards refuse, such administration shall be void. In all these cases the administration is a mere nullity. The executor's interest the ordinary is incapable of devesting. Toller on Ex. 121. 40*] *In the case of Griffith v. Frazer, 8 Cranch Rep. 24, the court says: "The appointment of an executor vests the whole personal estate in the person so appointed. He holds as trustee for the purposes of the will, but he holds the legal title in all the chattels of the testator. He is, for the purpose of administering them, as much the legal proprietor of those chattels as was the testator himself while alive. This is incompatible with any power in the ordinary to transfer those chattels to any other person by the grant of administration on them. His grant can pass nothing; it conveys no right, and is a void act." Such is the common law. Notwithstanding the extended jurisdiction given by the statutes of Maryland to the Orphan's Court in testamentary cases, we cannot In the case before us, there was a will which had been proved in Maryland; letters testamentary granted to an executor; that executor was alive (and is still so) when the Orphan's Court gave letters to the defendant, up- [*41 on the proof that the executrix named in the will was dead; without any inquiry concerning the executor, but in the face of the certificate of his letters testamentary. It was repeatedly asked on the argument of this cause, what rights can letters testamentary, or of administration, granted in either of the States of this Union, give to an executor or administrator in the District of Columbia, except the right to sue given by the Act of Congress of 1812. Davis's Dist. Laws, 266. We answer that the right to sue in the manner it is given, gives the right to such executor or administrator to recover from any individual within the District of Columbia, effects or money belonging to the testator or intestate, in whatever way they may have been received, if the law does not permit him to retain them on account of some relation borne to the testa tor or to his executor, which defeats the execu- | of the deceased, he must declare in the detinet, tor's right; and that letters testamentary, or of that is, in his representative capacity only. administration, obtained in either of the States But where the cause of action accrues after or territories of this Union, give a right to the the death of the testator, if the money recovperson having them to receive and give dis- ered will be assets, the executor may declare in charges for assets, without suit, which may be his representative character, or in his own in the hands of any person within the District name. of Columbia: and the right to receive from the government, either in the district or in the State where letters have been granted, any sum of money which the government may owe to a testator or intestate at the time of his death, or which may become due thereafter, or which may accrue to the government from a testator or intestate, in any way or at any time. And a bona fide payment to the administrator of a debt due to the estate, shall be a legal discharge to the debtor, whether the administration be void or voidable. Toller, 130; Allen v. Dundas, 3 Term Rep. 125. This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. Error, V. DAVID A. COMSTOCK, Defendant in Error. It was, however, urged that the court erred in its instruction to the jury, because the letters *WILLIAM COVINGTON, Plaintiff in [*43 testamentary of the plaintiff appear on the face of them to have been granted in violation of the law of Maryland (Dor. Test. Law, 6, sec. 77), which declares that letters testamentary shall not be granted to anyone, or to any number of executors less than the whole, unless there shall be such proceedings against each of them failing, as would authorize the issuing of letters of administration in case of the failure of a sole named executor. Whether such proceedings were had or not, the record does not show: but if it did, the objection would not prevail. The certificate of the register of wills annexed to the proceeding of the Orphan's Court, giving letters to the defendant, shows that the will had been proved, and that the plaintiff had received letters testamentary, That he is executor, then, is proved, as much as the law requires it to be; whether the declaration is in assumpsit upon a cause of action arising in the time of the testator, or in that of the executor. The plea was the general issue; and even in a case where that plea raises the question of right or title in the executor, the certificate of probate, and qualification as executor, meets the requisition. A judicial examination into their validity can only be gone into upon a plea in abatement, after oyer has been craved and granted; and then upon issue joined, the plaintiff's title as executor or 42*] administrator may be disputed, by showing any of those causes which make the grant void, ab initio, or that the administration has been revoked. The title of an administrator is proved by the production of the letters of administration. 2 Phil. Evi. 550, 551; Childres v. Emory et al. 8 Wheat. 671. Nor can such objection prevail because the plaintiff omitted to make profert of his letters testamentary in his declaration, for that is aided, unless the defendant demur specially for the defect. 4 Anne, ch. 11; 1 Saunders on Pleading, 574. It was also objected against the recovery in this case that the money of the testator having been received by the defendant after the death of the testator, the declaration should have been in the plaintiff's own name, and not as executor. The law is now well established that it may be in either form. The distinction is, that when an executor sues in respect of a cause of action which occurred in the lifetime An action was instituted in the Circuit Court of Mississippi, on a promissory note, dated at and state the place at which the note was payable, and payable in New York. The declaration omitted to that a demand of payment had been made at that place. The court held that to maintain an actio: against the drawer of a promissory note or bill of exchange, payable at a particular place, it is not necessary to aver in the declaration that the note. when due, was presented at the place for payment. material part in the description of the note, and and was not paid; but the place of payment is a must be set out in the declaration. IN N error to the District Court of the United sippi. An action was instituted in the District Court of Mississippi, by the defendant in error, on a promissory note, dated at New York, March 2, 1836, by which Covington & M'Morris promised to pay four thousand five hundred and sixty dollars and four cents, six months after date, to Nelson, Carleton & Co., at New York. The note was indorsed by the drawees to the defendant in error, David A. Comstock. The declaration on the note omits to state the place where the note was payable; and on the trial, the note was offered in evidence, and objected to by the defendant. The court allowed the note to be given in evidence, on which the defendant tendered a bill of exceptions; and a verdict and judgment having been rendered for the plaintiff, this writ of error was prosecuted. The case was argued by Mr. Cocke, with whom was Mr. Key, for the plaintiff in error. No counsel appeared for the defendant. Mr. Cocke contended that it was necessary to state the place at which payment of the note was to be made, and to prove a demand at that place. 2. That the note being joint, a separate action could not be maintained upon it. Nothing is clearer than that a declaration on a note payable at a particular place should state the place of payment. The omission to do this is fatal. Cited, Bailey on Bills, 429; 3 Campbell's Rep. 453; Chitty on Bills, 321; 14 East, 500; 15 East, 110; 5 Taunt. Rep. 7; | the United States for the Northern District of 3 Campbell, 248, note. Mr. Justice M'Lean delivered the opinion of the court: This case is brought before this court from the Circuit Court of Mississippi by a writ of error. Mississippi, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court that the judgment of the said Circuit Court in this cause be, and the same is hereby reversed with costs; and that this cause be, and the same is hereby remanded to the said Circuit Court for further proceedings to be had therein according to law and justice, and in conformity to the opinion of this court. *JOSEPH SMITH, Appellant, V. [*45 The plaintiff in the Circuit Court brought his action on a promissory note, and stated in his declaration that the defendant, "heretofore, to wit, on the second day of March, 1836, at New York, to wit, in the district aforesaid, made a certain note in writing, commonly 44*] *called a promissory note, bearing date the day and year last aforesaid, and then and there delivered the said note to Nelson, Carleton & Co., who are citizens of the State of THE New York; by which said note, the said defendant promised, by the name and style of Covington & M'Morris, to pay to the said Nel- Surrender of charter of corporation-right of son, Carleton & Co., or order, forty-five hundred and sixty dollars and four cents, six months after the date thereof, for value received; and the said Nelson, Carleton & Co., then and there indorsed and delivered said note to the said plaintiff," etc. The defendant pleaded the general issue, and on the trial the following note was offered in evidence: $4,560.04. New York, March 2d, 1836. Six months after date, we, the subscribers, of Columbus, State of Mississippi, promise to pay to the order of Nelson, Carleton & Co., forty: five hundred sixty dollars and four cents, at New York, for value received. Signed, Covington & M'Morris. The defendant objected to the note being given in evidence, on the ground that there was a material variance between it and the note described in the declaration. But the Circuit Court overruled the objection, admitted the note in evidence, and entered a judgment for the plaintiff. The defendant excepted to this ruling of the court; and the question now is, whether there is error in the decision of the Circuit Court. The note given in evidence was payable at New York, but the place of payment was not stated in the declaration. To maintain an action against the drawer of a note or bill payable at a particular place, it is not necessary to aver in the declaration that the note, when due, was presented at the place for payment, and was not paid; but the place of payment is a material part in the description of the note, and must be set out in the declaration. The place of payment regulates the rate of interest, and in other respects may become important. A note payable generally, is a very different instrument from a note given by the same parties, and for the same amount, payable at New York. We think, therefore, that the Circuit Court erred in admitting the note as evidence; for which cause the judgment is reversed, and the cause is remanded for further proceedings in the Circuit Court, where the plaintiff may move to amend the defect in his declaration. " This cause came on to be heard on the transcript of the record from the Circuit Court of CHESAPEAKE AND OHIO CANAL creditors. The legislatures of Virginia and Maryland authose States to the Potomac Company to be made thorized the surrender of the charter granted by to the Chesapeake and Ohio Canal Company, the stockholders of the Potomac Company assenting to the same. A provision was made in the acts au thorizing the surrender for the payment of a certain amount of the debts of the Potomac Company by the Chesapeake and Ohlo Canal Company, a list of those debts to be made out, and certified by the Potomac Company. BY THE COURT: This assignment does not impair the obligation of the contract of the Potomac him in a worse situation in regard to his demand. Company with any one of its creditors, nor place The means of payment possessed by the old company are carefully preserved, and indeed guaranteed by the new corporation; and if the fact can be established that some bona fide creditors of the Po tomac Company were unprovided for in the new charter, and have consequently no redress against the Chesapeake and Ohio Canal Company, it does not follow that they are without remedy. 0ted States for the County of Alexandria in the District of Columbia. N appeal from the Circuit Court of the In the Circuit Court for Alexandria County, the appellant filed a bill to compel the Chesapeake and Ohio Canal Company to pay to him a proportion of the amount of a judgment obtained for a prize drawn in a lottery authorized to be drawn by "The Potomac Company," the judgment having been assigned to the claimant to the amount for which the bill was filed. The Chesapeake and Ohio Canal Company, under the authority of their act of incorporation, and of acts passed by the legislatures of the States of Virginia and Maryland, had become entitled to, and held all the property, rights, and privileges owned and possessed by the Potomac Company under their charters, and were subjected to the payment of certain debts due by the Potomac Company, according to the provisions of their charter, and the acts of Assembly referred to. The whole case is fully stated in the opinion of the court. The case was argued by Mr. Semmes and Mr. Lee for the appellants, and by Mr. Key and Mr. Jones for the appellees. Mr. Justice M'Lean delivered the opinion of the court: This is an appeal in chancery from the de |