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sault had died in the city of Baltimore in 1814, the personal estate of an intestate, or decedent, and that Aglæ Coursault, his widow and exec- is to be distributed according to the local law utrix, had died about two years before the of the place where it may be. making of the affidavit.

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 let. Orphan's Court directed letters of administra ters of administration in this district, when no tion, with the will annexed, to be issued upon administration of the deceased is within tho the estate of Edward Coursault, to Elias Kane, district, and there are personal effects belonging Esquire; and the sum awarded on the claim of to the deceased within the same. Aglæ Coursault by the commissioners, was The law does not take away this jurisdiction paid at the Treasury of the United States to of the Orphan's Court of the County of Wash. Mr. Kane, as the administrator.

ington to issue letters of administration. While Gabriel Paul, in November, 1837, as execu- it authorizes a foreign administrator to come tor of Edward Coursault, having taken out let into this district, it leaves the authority of the ters of administration in the District of Colum- Orphan's Court as it existed before the act. bia, instituted a suit in the Circuit Court of the Such a construction of the law would be most County of Washington against Elias Kane, for unreasonable, and would produce great diffithe recovery of the sum paid to him by the culties and inconveniences. There is no power United States; and at November Term, 1838, to compel a foreign administrator to come into the cause was tried, and a verdict and judg. this district and collect the assets of the estate. ment were rendered for the plaintiff.

Thus the personal property of a decedent At the trial, the defendant in the Circuit might be wasted and lost. But to construe the Court gave in evidence an exemplification of the law as is contended for by the plaintiff in er: letters of administration granted by the Or- ror, is to give it all the efficiency requisite, and phan's Court of the County of Washington; but essential to the purposes of the legislation. the court directed the jury that they were no The foreign administrator may institute suits bar to the action of the plaintiff. The defend, in the district; but over assets which are in ant excepted to this opinion of the court. And the district, an administrator duly appointed the plaintiff having offered in evidence the by the Orphan's Court, before the foreign adaward of the commissioners, the power of at- ministrator comes here, has full and exclusive torney from the plaintiff to Aglæ Coursault (by control and authority. copies from the State Department) and his In support of this construction of the act of letters testamentary, with a copy of the will Congress, the counsel cited The United States annexed; and having proved that the plaintiff v. Fisher, 2 Cranch, 35; Baldwin C. C. Rep. was then living, the court directed the jury that 316; Cowper, 391; 6 Dane's Abridgment, 601, the plaintiff, if the said evidence was believed, 593; Foster's case, 11 Coke's Rep. 64 a. was entitled to recover the amount received by The power given to an administrator in the the defendant under the award. The defendant district is to collect and administer the estate excepted to this direction of the court, and pros. of the intestate according to the lex rei site. ecuted this writ of error.

After his appointment he cannot excuse him. The cause

was argued by Mr. Key, with self for neglecting to collect the assets of the whom was Mr. Kane, for the plaintiff in error, estate by alleging that there was another and and by Mr. Coxe and Mr. Semmes for the de a foreign administrator: nor would the pay. fendant.

ment of a debt to a foreign administrator, by Mr. Key, for the plaintiff in error, contended a person in the district, be a bar to the claim that the letters of administration granted to of an administrator appointed here. Suppose the plaintiff in the District of Columbia, were an administrator appointed in the district not void, and that the instructions of the Cir should have brought suits, would they abate cuit Court were erroneous.

when a foreign administrator comes here? It If there had not been special legislation on is admitted that the Act of Congress of 1812 this subject, no doubt could be entertained of may be interpreted to give concurrent powers the invalidity of the letters of administration to foreign and domestic administrators, but not granted to Gabriel Paul in the District of Co to make the powers of the foreign administralumbia, after those which had been granted to tor exclusive." Story's Conflict of Laws, 431. the plaintiff in error. By the general law, ad. There is another view of this question. This ministration is to be granted in the place where is not a debt which was due to the intestate in the property of the deceased person is found; his lifetime. It is money of the estate which and letters testamentary drawing their author came into this district in 1827, and the letters ity from a different state or country, have no testamentary, granted in Baltimore, were issued validity. 9 Wheat. 671; Smith v. The Union to Gabriel Paul in 1814. The action in the Bank of Georgetown, 5 Peters, 518; Story's Con Circuit Court was not for money due to the Alict of Laws, 422, 429-433, 436, 439; 20 Johns. testator, but due to the executor of Coursault. Rep. 265.

The action is not, therefore, *authorized (*37 The special legislation by the Act of Con by the act of Congress, as it authorized suits by gress of 24th June, 1812, was not intended to the representative of a decedent; but this is a make a general change on this subject. It suit in his own right by the executor. 36*] *meant only to authorize suit to be A suit may be brought by an administrator brought on foreign letters of administration, or for the recovery of a debt due to him, conletters of administration granted out of the tracted with him in his capacity of adminisDistrict of Columbia. The court will lean in trator, after the decease of his intestate. 4 favor of this construction of the act; and by Mason C. C. Rep. 34. But the act of Congress giving it this limitation will prevent, as far as gives no power to sue, except in cases where possible, the infraction of the principle that l action can be brought on letters of adminis

tration for debts to, or on contracts with, the tor to sue, cited, Biddle v. Wilkins, 1 Peters, intestate. It has no application to suits which 486; 1 Ventris, 535; 1 Mod 213; 2 Mod. 149; a party might institute without letters of ad. Hobart, 46; 2 Lord Ray. 701; I Williams on ministrations; such as suits for claims by the Executors, 155. An administration granted, administrator on debts due on contracts or ob- where there is an executor is void. 3. Bos. & ligations which have arisen after the decease of Pull. 30; Toller on Executors, 120; 8 Cranch, 1. the party represented by him.

An objection lies to the original letters testa- Mr. Justice Wayne delivered the opinion of mentary granted in Baltimore to Gabriel Paul. the court: The will of Edward Coursault appointed two It appears in this case that Edward Courexecutors, and yet without any renunciations sault being domiciled in Baltimore, died there by Aglæ Coursault, the letters testamentary in the year 1814; and that by his will, dated are issued to Gabriel Paul alone. This is con- the 13th August, 1814, he appointed Aglæ trary to the Testamentary Act of February, Coursault executrix, and Gabriel Paul executor. 1717, ch. 8.

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 Aglæ Coursault to present a memosault, being an indemnity for the seizure of rial in his name to the board of commissioners his property in his lifetime, and the claim appointed under the act of Congress to carry for a recompense for this injury passed to the into effect the convention between the United executors of his will.

States and His Majesty the King of the French, Thus situated, and Aglæ 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 Aglæ 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, let. act of Congress on the subject of the claims un ters testamentary were granted to herself and der the treaty with France have been violated; Gabriel Paul, and that whatever sum may be rights clearly vested under the law and by the awarded upon the claim, it would belong exaward of the commissioners have been disre- clusively to herself. garded.

The commissioners made an award in favor The fund awarded under the treaty with of the claim. France was not assets in the District of Co- After this award was made, Kane, the appel. lumbia. 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 estate of Edward Coursault; and upon an affi. money from France, were trustees for the davit of Thomas Dunlap, stating that the widclaimants to distribute the same among them. ow and executrix, Aglæ Coursault, was dead, an If this fund had any location, it was in Balti- order was made to issue letters of adminismore; there the United States were bound to tration to the appellant, upon the estate of pay the amount awarded to the executor of Edward Coursault and letters of administration Edward Coursault. In point of fact the money de bonis *non, with the will annexed, [*39 was paid in New York, as there it had been were given to him, he having entered into 38*) kept by *the United States when re bond with Thomas Dunlap and John K. Kane, ceived from France. All that was required was as securities for the faithful performance of his the presentation of the award of the commis. duties. stoners to the agents of the United States in Kane applied for, and received from

the New York.

proper department of the government, a part The action in the Circuit Court was properly of the sum awarded by the commissioners upon brought. But if this was not so, the exception the claim of Edward Coursault; and this suit should have been taken by a plea in abatement. was brought by Gabriel Paul, the executor, to The plea of the general issue admits the right recover from Kane the money he received, in of the executor to sue. 8 Wheat. 542; 1 Peters, his character of administrator de bonis non, 386; 4 Peters, 500; Baker v. Biddle, Baldwin's cum testamento annexo. CĆ Rep. 394. To show the right of the execu- The declaration contains three counts, in

each of which the plaintiff claims as executor. / see in them any alteration of the legal conse. The defendant pleaded non assumpsit; and quence resulting from the grant by that cour: 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 The court charged the jury that the letters action of the court, to be effective to grant ad. of administration offered by the defendant were ministration upon a will, an executor being no bar to the plaintiff's action; but that the alive, and capable of acting, must be within plaintiff's letters testamentary and the other its powers. If not, the administration will be evidence, if believed by the jury, entitled him void. This conclusion is sustained, too, by the to recover the amount the defendant had restern manner in which the Orphan's Court is ceived upon the award of the commissioners, confined within its jurisdiction by the statute according to the certificate of that amount giv. of 1798, ch. 101, sub. ch. 15. “The said Oren by John H. Houston, a clerk in the fifth phan's Court shall not, under any pretext of auditor's office. The jury gave a verdict in incidental power or constructive authority ex. favor of the plaintiff, the defendant having ercise any jurisdiction whatever not ex sly first excepted to the instructions of the court. given by this act or some other law.”

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 appear. given 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 The answer to that question will depend up-law. Dorsey's Maryland Testamentary Law, on the legal character of the letters granted to 4, sec. 77. the defendant.

In this case, then, though the right of the Are they void or voidable ?

plaintiff to sue in the District of Columbia In Com. Dig. Adm. B. 1, it is said, If there as given by the Act of Congress of the 24th be an executor, and administration be granted June, 1812, Davis's Dist. Laws, 266, his right before probate and refusal, it shall be void on to recover rests upon the legal conclusion that the will being afterwards proved; although the the defendant never was administrator to adwill were suppressed or its existence were un minister the effects of the testator; the act of known, or it were dubious who was executor, the Orphan's Court naming him such, being or he were concealed or abroad at the time of void, ab initio. His right under that act is, to granting the administration. So in Com. Dig: “maintain any suit or action, and to prosecute B. 2, B. 10, If there be two executors, one of and recover any claim in the District of Cowhom proves the will and the other refuses, lumbia in the same manner as if his letters tesand he who proves the will dies, and adminis. tamentary or administration had been granted tration is granted before the refusal of the sur- by the proper authority,” etc., etc., “in such vivor, subsequently to the death of his co-ex- district." ecutor, or if granted before the refusal of the In the case before us, there was a will which executor, although he afterwards refuse, such had been proved in Maryland; letters testaadministration shall be void. In all these cases mentary granted to an executor; that executor the administration is a mere nullity. The exec- was alive (and is still so) when the Orphan's utor's interest the ordinary is incapable of de Court gave letters *to the defendant, up. (*41 vesting. Toller on Ex. 121.

on the proof that the executrix named in the 40*) *In the case of Griffith v. Frazer, 8 will was dead; without any inquiry concerning Cranch Rep. 24, the court says: "The appoint. the executor, but in the face of the certificate ment of an executor vests the whole personal of his letters testamentary. estate in the person so appointed. He holds as It was repeatedly asked on the argument of trustee for the purposes of the will, but he this cause, what rights can letters testament. holds the legal title in all the chattels of the ary, or of administration, granted in either of testator. He is, for the purpose of administer- the States of this Union, give to an executor ing them, as much the legal proprietor of those or administrator in the District of Columbia, chattels as was the testator himself while alive. except the right to sue given by the Act of This is incompatible with any power in the or. Congress of 1812. Davis's Dist. Laws, 266. dinary to transfer those chattels to any other We answer that the right to sue in the man. person by the grant of administration on them. ner it is given, gives the right to such executor His grant can pass nothing; it conveys no right, or administrator to recover from any individual and is a void act."

within the District of Columbia, effects or monSuch is the common law.

ey belonging to the testator or intestate, in Notwithstanding the extended jurisdiction whatever way they may have been received, given by the statutes of Maryland to the Or if the law does not permit him to retain them phan's Court in testamentary cases, we cannot | on account of some relation borne to the testa.

V.

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 recov. person having them to receive and give dis- cred 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 This cause came on to be heard on the tranState where letters have been granted, any sum script of the record from the Circuit Court of of money which the government may owe to a the United States for the District of Columbia, testator or intestate at the time of his death, or holden in and for the County of Washington, which may become due thereafter, or which and was argued by counsel; on consideration may accrue to the government from a testator whereof, it is now here ordered and adjudged or intestate, in any way or at any time. And by this court that the judgment of the said a bona fide payment to the administrator of a Circuit Court in this cause be, and the same is debt due to the estate, shall be a legal dis hereby affirmed, with costs and damages at the charge to the debtor, whether the administra- rate of six per centum per annum. tion be void or voidable. Toller, 130; Allen v. Dundas, 3 Term Rep. 125.

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

Error, of them to have been granted in violation of the law of Maryland (Dor. Test. Law, 6, sec. DAVID A. COMSTOCK, Defendant in Error. 77), which declares that letters testamentary shall not be granted to anyone, or to any num

Action on promissory note-pleading. ber of executors less than the whole, unless An action was instituted in the Circuit Court of there shall be such proceedings against each of Mississippl, on a promissory note, dated at and them failing, as would authorize the issuing of state the place at which the note was payable, and

The declaration omitted to letters of administration in case of the failure that a demand of payment had been made at that of a sole named executor. Whether such pro- place. The court beld that to maintain an activi ceedings were had or not, the record does not against the drawer of a promissory note or bill of

exchange, payable at a particular place, it is not show: but if it did, the objection would not necessary to aver in the declaration that the note. prevail. The certificate of the register of wills when due, was presented at the place for payment. annexed to the proceeding of the Orphan's and was not paidbut the place of payment is a Court, giving letters to the defendant, shows must be set out in the declaration. that the will had been proved, and that the plaintiff had received letters testamentary. N error to the District Court of the United as the law requires it to be; whether the dec. sippi. laration is in assumpsit upon a cause of action An action was instituted in the District Court arising in the time of the testator, or in that of of Mississippi, by the defendant in error, on a the executor. The plea was the general issue; promissory note, dated at New York, March 2, and even in a case where that plea raises the 1836, by which Covington & M'Morris prom. question of right or title in the executor, the ised to pay four thousand five hundred and certificate of probate, and qualification as ex. sixty dollars and four cents, six months after ecutor, meets the requisition. A judicial ex date, to Nelson, Carleton & Co., at New York. amination into their validity can only be gone The note was indorsed by the drawees to the into upon a plea in abatement, after oyer defendant in error, David A. Comstock. has been craved and granted; and then upon The declaration on the note omits to state issue joined, the plaintiff's title as executor or the place where the note was payable; and on 42'] administrator *may be disputed, by show the trial, the note was offered in evidence, and ing any of those causes which make the grant objected to by the defendant. The court al. void, ab initio, or that the administration has lowed the note to be given in evidence, on been revoked. The title of an administrator is which the defendant tendered a bill of excep. proved by the production of the letters of ad. tions; and a verdict and judgment having been ministration. 2 Phil. Evi. 550, 551; Childres v. rendered for the plaintiff, this writ of error was Emory et al. 8 Wheat. 671. Nor can such ob- prosecuted. jection prevail because the plaintiff omitted to

The case

was argued by Mr. Cocke, with make profert of his letters testamentary in his whom was Mr. Key, for the plaintiff in error. declaration, for that is aided, unless the defend. No counsel appeared for the defendant. ant demur specially for the defect. 4 Anne, Mr. Cocke contended that it was necessary to ch. 11; 1 Saunders on Pleading, 574.

state the place at which payment of the note It was also objected against the recovery in was to be made, and to prove a demand at that this case that the money of the testator having place. been received by the defendant after the death 2. That the note being joint, a separate acof the testator, the declaration should have tion could not be maintained upon it. been in the plaintiff's own name, and not as Nothing is clearer than that a declaration on executor. The law is now well established a note payable at a particular place should that it may be in either form. The distinction state the place of payment. The omission to is, that when an executor sues in respect of a do this is fatal. Cited, Bailey on Bills, 429; cause of action which occurred in the lifetime l 3 Campbell's Rep. 453; Chitty on Bills, 321 ;

I Starters for the Portier Cobistrict the Wistis!

error.

14 East, 500; 15 East, 110; 6 Taunt. Rep. 7; | the United States for the Northern District of 3 Campbell, 248, note.

Mississippi, and was argued by counsel; on

consideration whereof, it is now here ordered Mr. Justice M'Lean delivered the opinion of and adjudged by this court that the judgment the court:

of the said Circuit Court in this cause be, and This case is brought before this court from the same is hereby reversed with costs; and the Circuit Court of Mississippi by a writ of that this cause be, and the same is hereby re

manded to the said Circuit Court for further The plaintiff in the Circuit Court brought proceedings to be had therein according to law his action on a promissory note, and stated in and justice, and in conformity to the opinion his declaration that the defendant, “hereto- of this court. fore, 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

*JOSEPH SMITH, Appellant, there delivered the said note to Nelson, Carleton & Co., who are citizens of the State of THE CHESAPEAKE AND OHIO CANAL New York; by which said note, the said de.

COMPANY, Appellees. fendant 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

creditors. and sixty dollars and four cents, six months after the date thereof, for value received; and The legislatures of Virginia and Maryland authe said Nelson, Carleton & Co., then and there thorized the surrender of the charter granted by indorsed and delivered said note to the said to the Chesapeake and Ohlo Canal Company, the

those States to the Potomac Company to be made plaintiff,” etc.

stockholders of the Potomac Company, assenting The defendant pleaded the general issue, and thorizing the surrender for the payment of a cer.

A provision was made in the acts auon the trial the following note was offered in tain amount of the debts of the Potomac Company evidence:

by the Chesapeake and Ohio Canal Company, a list $4,560.04. New York, March 20, 1836.

of those debts to be made out, and certified by the

Potomac Company. Six months after date, we, the subscribers, of BY THE COURT : This assignment does not inColumbus, State of Mississippi, promise to pay pair the obligation of the contract of the Potomac to the order of Nelson, Carleton & Co., forty- Company with any one of its creditors, por place five hundred sixty dollars and four cents, at The means of payment possessed by the old comNew York, for value received.

pany are carefully preserved, aud indeed guaran. Signed, Covington & M'Morris. teed by the new corporation ; and if the fact can be The defendant objected to the note being given tomac Company were unprovided for in the new

established that some bona fide creditors of the Poin evidence, on the ground that there was a charter, and have consequently no redress against material variance between it and the note de- the Chesapeake and Ohio Canal Company, it does scribed in the declaration. But the Circuit not follow that they are without remedy. the ,

N appeal from plaintiff. The defendant excepted to this ruling of the court; and the question now is, dria in the District of Columbia. whether there is error in the decision of the In the Circuit Court for Alexandria County, Circuit Court.

the appellant filed a bill to compel the Chesa. The note given in evidence was payable at peake and Ohio Canal Company to pay to him New York, but the place of payment was not a proportion of the amount of a judgment obstated in the declaration.

tained for a prize drawn in a lottery authorized To maintain an action against the drawer of to be drawn by “The Potomac Company,” the & note or bill payable at a particular place, it judgment having been assigned to the claimant is not necessary to aver in the declaration that to the amount for which the bill was filed. The the note, when due, was presented at the place Chesapeake and Ohio Canal Company, under for payment, and was not paid; but the place the authority of their act of incorporation, and of payment is a material part in the descrip- of acts passed by the legislatures of the States tion of the note, and must be set out in the of Virginia and Maryland, had become entitled declaration.

to, and held all the property, rights, and privi. The place of payment regulates the rate of leges owned and possessed by the Potomac interest, and in other respects may become im- Company under their charters, and were subportant. A note payable generally, is a very jected to the payment of certain debts due by different instrument from a note given by the the Potomac Company, according to the prosame parties, and for the same amount, payable visions of their charter, and the acts of Assem. at New York. We think, therefore, that the bly referred to. Circuit Court erred in admitting the note as

The whole case is fully stated in the opinion evidence; for which cause the judgment is re- of the court. versed, and the cause is remanded for further The case was argued by Mr. Semmes and proceedings in the Circuit Court, where the Mr. Lee for the appellants, and by Mr. Key and plaintiff may move to amend the defect in his Mr. Jones for the appellees. declaration.

Mr. Justice M'Lean delivered the opinion of This cause came on to be heard on the tran- the court: script of the record from the Circuit Court of This is an appeal in chancery from the de

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