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use tufts of grass first to dislodge the naughty boy from the apple-tree, before trying what virtue there is in stones." But what an iconoclast our brother is who thus misrepresents the celebrated fable in Webster's spelling-book. For "contrary" read "according."
We hope that the next time that Mr. Samuel D. Coykendall tenders a dinner to the Holland Society of New York at the Hotel Kaaterskill he will invite us, and not content himself with sending us a bill of fare after the feast is over. This is not the way to "treat" editors. We can confidently say that if he should include us next time "we should not prove a dead-head in the enterprise." The menu in question is a very ingenious and witty composition, garnished throughout with apt quotations from Irving's immortal history of "Rip Van Winkle." Two of the toasts were responded to by those eminent lawyers, Judge Van Vorst, president of the society, and Mr. Aaron J. Vanderpoel, vicepresident for Kinderhook, although we dare say the former knows more of his subject, "The Holland Society of New York," than the latter knows of his, "Dutch Women." General Van Vliet responded to a toast to "The Dutch Soldier," but probably "Dutch Courage" would have been a more appropriate topic, as it was near the end of the feast. The Rev. Mr. Suydam responded to a toast to "The Relief of Leyden," but why should a clergyman have been chosen? - those beleaguered burghers found no relief in religion; what they needed was beef and beer. Laying aside all feeling at having been given only this cold smell, we wish the new society all prosperity, and may no skeleton ever sit at their feasts!
With a beautiful unanimity the newspapers of the first and second judicial districts agree that the nominations for the Court of Appeals should be given to residents of one of those districts. It is sufficient to say that the claim of "taxation without representation" has no proper application to judicial offices. The bench is no more a representation of localities than the Federal Senate. The claim also that lawyers from "the interior" are only fit to grapple with agricultural questions makes one smile, when it is a notorious fact that nearly every great lawyer in the city of New York has gone there from the country, and knew all the law before he went there. It is true that these two districts furnish a majority of the cases appealed to the Court of Appeals, but that is not a virtue that deserves reward, but rather a disproportionate burden that all the rest of the State has to help to pay for. Much of this surplus of appeals is due to haste and imperfect learning at nisi prius. It is absurd for the Sun to talk about Messrs. Vanderpoel, Nash and Tracy as candidates. Not one of them would accept the nomination, because none of them could afford it. General Tracy, we believe, declined a nomination for
that reason, and it is certain that very few firstclass lawyers, in the first district at least, can afford to take an office paying only nine thousand dollars a year. The mistake in the present constitution of the bench, if any, is in having two judges from one city. One of these might well have been selected from the second district, but it will not mend matters to leave out the third district in order to flatter the second.
In a recent notice of Perkins' "France under Mazarin and Richelieu," we omitted to give the names of the publishers, G. P. Putnam's Sons, New York.
NOTES OF CASES.
N Grandona v. Lovdal, California Supreme Court, July 14, 1886, it was held that trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land, but to that extent they are nuisances; and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the trees, nor can he cut the branches beyond the extent to which they overhang his soil. Likewise, roots projecting into another's soil are nuisance which may be abated if actual damage is suffered thereby. Wood Nuis., § 112, citing Commonwealth v. Blaisdell, 107 Mass. 234; Commonwealth v. Mc Donald. 16 Serg. & R. 390. See Buckingham v. Elliott, 62 Miss. 296; S. C., 52 Am. Rep. 188.
In Smith v. Matteson, 40 Hun, 216, it was held not negligent per se for a boy fourteen years old to lead a cow in the highway. The court said: "A cow owned by defendant was being led by defendant's servant, a boy between fourteen and fifteen years of age, along a country highway. This boy was accompanied and assisted by another boy between sixteen and seventeen years of age. The plaintiff, while riding in a buggy, drawn by one horse, overtook, and in attempting to pass the cow the buggy and cow collided, and the plaintiff was injured. This action was brought to recover the damages sustained by the injury, upon the theory that it was actionable negligence to permit a boy of this age to lead a cow along a country highway. * $ * The defendant had the same right to use the highway for the purpose of driving his cow that the plaintiff had to use it for riding. No contractual relations existed between the parties, neither owing any duty to the other except to use proper care in the use of the public highway. Whether the defendant was negligent in permitting this boy to lead this cow is to be determined by the events occurring and facts existing before the accident. The undisputed evidence is that the cow, previous to the occurrence, was gentle. There
is no evidence that the cow was vicious or difficult to lead on the occasion in question, or even after the accident. There is no evidence that the boy employed was careless in the discharge of his duties, or in anywise incompetent to perform such service; and I am unable to discover any evidence that the defendant was negligent in the selection of his servant. There is no evidence that the boys did, or omitted an act which caused the accident; nor is there evidence from which it can be inferred that two mature men could have done more or less than was done by the boys. No fact showing a lack of skill or judgment on the part of the boys appears in the case. It is easy to be wise after an event; but whether the defendant was negligent must, as before stated, be determined by what happened before the accident; and I doubt if the most prudent farmer would have, before the accident, thought or suggested that it was negligent to trust two boys, working on a farm, to lead this cow along a country highway in the manner described. It seems to me that the judgment in this case extends the doctrine of liability for non-contractual actionable negligence far beyond the doctrine of any reported case, and if sustained, persons may be held liable for accidents which could not be foreseen and guarded against by the most prudent. The trial court erred in refusing to nonsuit."
In Re Barnard; Edwards v. Barnard, Court of Appeal, 55 L. T. Rep. (N. S.) 40, B., one of the partners in a mercantile firm of "B. & Co.," accepted a bill of exchange drawn on the firm by signing the name of the firm, "B. & Co.," and his own name underneath. Held, that as between an indorser of the bill and the executrix of B., the acceptance was that of the firm, and that B. was not separately liable. Cotton, L. J., said: "We have no evidence to show why W. A. M. Barnard put his name to the acceptance, but whatever his reason was it did not make him separately liable on the acceptance. Steele v. M'Kinlay, 5 App. Cas. 754, was cited by the respondent. In that case the bill was indorsed by a person who was not a party to it, and it was held that such a person might make himself liable by indorsing it. But that is very different from the acceptance of a bill. The signature of Barnard might have had some effect as between him and the drawer of the bill if the consideration for the bill were taken into account, but it could give no right to the plaintiff, who is a mere holder by indorsement, and has no claim under the bill except against the firm." Lindley, L. J., said: "There being a firm consisting of two partners, the only question is whether this was a joint acceptance or a separate acceptance of one of the partners? I am of opinion that it is an acceptance of the firm. I thought at first that this case was like that of Owen v. Van Uster, 10 C. B. 318, but there was no authority in that case for one of the partners to accept bills for the firm, and therefore it was held that as he was one of the partners of
the firm named as drawees, and accepted the bill in his own name, he was separately liable. That was a different case from this, in which the partner who signed the bill had authority to bind the firm." Lopes, L. J., said: "The plaintiff is the indorsee for value of a bill of exchange, and claims on that bill only. Against whom does he claim? The bill is drawn on the firm, and accepted by the firm, with the name of W. A. M. Barnard written underneath the firm's signature. Then certainly the firm is liable, and for this reason, that the only persons who can accept a bill are the drawees. An acceptance is an engagement to pay the amount for which the bill is drawn in money, and can only be given by the person against whom the bill is drawn, Therefore the only persons against whom an action could be brought on the bill would be the firm, and it follows that the plaintiff is a creditor of the firm only."
FOREIGN ADMINISTRATORS AND EXECUTORS.
IN this age and country of easy and rapid inter-com
munication the business interests of the citizens of the different States have become so widely extended that it frequently happens that decedents at the time of death have both property and creditors in two or more jurisdictions. Unless the tribunals of the different States establish a uniform system of the interstate jurisprudence on this most important subject, an unseemly and unnecessary conflict of jurisdiction must inevitably result. The purpose of the writer is to show by a review of the adjudications what steps have so far been taken by the courts toward the attainment of a symmetrical, harmonious and just Code by which all questions of conflicting administration may be settled.
All the authorities agree that no action at law can be maintained by a foreign administrator or executor. To entitle him to sue he must secure appointment in the State in which he desires to prosecute the suit. Grant v. McDonald, 8 Grant's Ch. 468; Conner v. Paul, 12 Bush, 144; Fogle v. Schaeffer, 23 Minn. 304; Rucks v. Taylor, 49 Miss. 552; Sabin v. Gilman, 1 N. H. 193; Porter v. Trall, 30 N. J. Eq. 106; Smith v. Tiffany, 16 Hun, 552; Parsons v. Lyman, 20 N. Y. 103; Matter of Webb, 11 Hun, 124; Doolittle v Lewis, 7 Johns. Ch. 45; Vermilya v. Beatty, 6 Barb. 492; Warren v. Eddy, 13 Abb. 28; Noonan v. Bradley, 9 Wall. 394; Vaughan v. Northup, 15 Pet. 1; Shakespeare v. Fidelity, 97 Penn. St. 173; Taylor v. Pennsylvania, 78 Ky. 648; Terrill v. Crune, 55 Tex. 81; Murphy v. Hall, 38 Hun,528; Gray v. Ryle, 5 Civ. Pro. 387; Field v. Gibson, 56 How. Pr. 232; S. C., 20 Hun, 274; Metcalf v. Clark, 41 Barb. 45; Leonard v. Putnam, 51 N. H. 247; Story Confl. Laws., 514; Barton v. Higgins, 41 Md. 539; Musselmann's App., 101 Penn. St. 165.
It is also equally well settled that no foreign executor or administrator can be sued at law in any other jurdisdiction than that in which he has been appointed. See above cases. But in some cases courts have entertained actions against them without any appointment of them as legal representatives in the State in which such actions were instituted. Field v. Gibson, 20 Hun, 274, 277-8; Gulick v. Gulick, 33 Barb. 92; Campbell v. Tousey, 7 Cow. 64; Brown v. Brown, 1 Barb. Ch. 189; McNamara v. Dwyer, 7 Paige, 239; Story Confl. Laws, § 514; Montalver v. Cloven, 32 Barb. 190; Marsall v. Bressler, 1 How. Pr. (N. S.) 217;
Price v. Brown, 10 Abb. N. C. 67; Brown v. Knapp, 17 Hun, 160; Johnson v. Jackson, 56 Ga. 326. These were all actions in equity.
In McNamara v. Dwyer, an action was brought by the next of kin against an administrator appointed in Ireland for an accounting of money of the estate which he had brought to the State of New York and had misapplied. On the question of the right to maintain the action against the foreign administrator, the court said: "It appears to be perfectly well settled that a foreign executor or administrator cannot maintain a suit in this State by virtue of titles, testamentary or of administration, granted abroad, and the learned and very distinguished commentator on the conflict of foreign and domestic laws is evidently of the opinion that this principle extends to suits brought against the foreign executor or administrator to recover the property which he has received in that character. Story Confl. Laws, 422, § 513, 514. I have how ever, after a careful examination of the several cases referred to by him, not been able to find any one in which it has been directly decided that the remedy against an executor or administrator, either in behalf of the next of kin or of the creditors, is necessarily confined to the courts of the country in which the ters testamentary or of administration were granted. Indeed to suppose such was the law would lead to the conclusion that cases must frequently exist in which there would be a total failure of justice. It is well known as a general rule that executors are not required to give security upon the granting of letters testamentary to them; so that if they remove to another State or country, taking the proceeds of the testator's property with them, there would be no possibility of compelling them to account for the same by a resort to the tribunal of the State or country where probate of the will was originally made. And even in the case of an administrator who had given security to account the remedy there might be unavailing in consequence of the insolvency of his sureties. Certainly if a guardian appointed in one of our sister States should come into this State with the property of his ward, or after he had squandered the same or appropriated it to his own use in the State where he received his appointment, there could be no reasonable doubt as to the jurisdiction of this court to compel him to account for and pay over to his ward what was justly and according to the laws of the State in which he assumed the trust. And I confess I can see no reasons for giving such a remedy here in the case supposed, which would not be equally applicable to the case of an executor or administrator coming into this State and bringing with him the property which had been confided to him as trustee for the creditors or next of kin of the decedent."
although he may have removed with the assets to another country." * "I admit that in the enforcement of the remedy against the personal representative of the decedent in the tribunals of another government, respect must be had to the nature and extent of his liability according to the laws of the State or country from which he derived his authority to administer the assets of the decedent; so far at least as respects that part of such assets which was within the jurisdiction of the State or country from which he derived such authority." In this case the court expressly recognized a distinction between an action at law and a suit in equity, and disapproved Campbell v. Tousey, 7 Cow. 64, in which it was held that an action at law would lie. The reason for the distinction is obvious. In an action at law no question of the rights of other parties interested in the estate can be passed upon; whereas in a suit in equity all questions arising between resident and non-resident creditors and next of kin and all persons interested in the estate in any manner can be raised, and the rights of the different parties adjusted upon an equitable basis. The chancellor said: "I confess I have some doubt whether he ought to be called to account therefor in a court of law as an exlet-ecutor de son tort. But I can see no valid objection to a suit against him in this court where he may have the full benefit of his administration of the estate abroad, and where full and ample justice can be administered without regard to the technical form of the suit." The decision of the chancellor in this case is characterized by such a spirit of liberality, and enlightened international comity, that it is entitled to rank among the great adjudications of the State. Not only does it aim to do justice to the plaintiffs, but it recognizes all rights under the laws of the country in which the administration was granted; it courteously gives effect to those laws, and even accords to the defendant who is false to his trust the same measure of justice that he could claim in the courts of the country in which he was appointed. On this last point the chancellor said: "On such an accounting however the defendant will be entitled to all such allowances as by the laws of Ireland he would be entitled to in a suit brought against him for an account and settlement of his trust in the courts of that country." The whole trend of this decision is simply to this effect, that the personal representative, having passed beyond the control and jurisdiction of the courts of that State in which he should be called to account for the manner in which he has discharged his trust, the courts of the State in which he is found will courteously lend their assistance to compel him by their decrees to do precisely what the courts of the other State would have compelled him to do, had he not escaped from its jurisdiction. This case if followed in other jurisdictions will be productive of harmony, and in a large measure prevent unbecoming judicial conflicts.
In Hedenburgh v. Hedenburgh, 46 Coun. 30, the court makes a distinction between property brought by a foreign executor into that State and property already there which he takes into possession holding that in only the latter case can he be sued there by a creditor.
The reason for the doctrine that a foreign administrator or executor has no right to maintain an action in a State in which he has not been appointed is not that his title is defective. All the cases agree that the personal representative of the domicile is vested with the title to all the personal property wheresoever situated. Matter of the Estate of Butler, 38 N. Y. 397, 400; Peterson v. Chemical Bank, 32 id. 21, 43; Wilkins v. Ellett, 108 U. S. 258. All the cases agree on this proposition.
The doctrine enunciated by this case is unquestionably sound, no injustice is done to any one by its application, because the creditors and next of kin of the jurisdiction in which the personal representative was appointed are fully protected under it, and have the same measure of justice meeted out to them in the foreign State that they would have received had the proceeding been instituted in the State of their domicile. The rule that the foreign representative may be required to account in any jurisdiction, though not that in which he was appointed, is qualified by the further eminently just principle that the distribution is to be the same as it would have been in the State in which the foreign representative received his appointment.
In McNamara v. Dwyer, the chancellor said: "Those assets must be distributed among the next of kin or applied to the payment of debts in the same manner as though the remedy was sought by the creditors or distributers at the place of his original appointment,
The reason for denying him the right to sue is based upon the principle that property located within a
State is subject to the laws of that State for the pro-
In Peterson v. Chemical Bank, the court say on this point at page 43: "It is not therefore because the executor or administrator has no right to the assets of the deceased existing in another country, that he is refused a standing in the courts of such country, for his title to such assets, though conferred by the law of the domicile, is recognized everywhere. Reasons of form and a solicitude to protect the rights of creditors and others, resident in the jurisdiction in which the assets are found, have led to the disability of foreign executors and administrators, which disability, however inconsistent with principle, is very firmly established.'
In Wilkins v. Ellett, the court say: "But the reason for the last rule is the protection of the rights of citizens of the State in which the suit is brought, and the objection does not rest on any defect of the administrator's title in the property, but upon his personal incapacity to sue as administrator beyond the jurisdiction which appointed him.
It being the established law that foreign executors or administrators cannot sue in a State in which they have not been appointed, can such representatives assign their right of action or transfer the decedent's property in such foreign jurisdiction so as to enable the assignee or transferee to sue therein? Where there is no administration in such foreign country and no creditors or next of kin therein the cases agree that such assignment is valid, and the assignee may Owen v. Moody, 29 Miss. 79; Smith v. Tiffany, 16 Hun, 552; Peterson v. Chemical Bank, 32 N. Y. 21; Middlebrook v. Merchants Bank, 27 How. Pr. 474; S. C..24 id. 267; Riddick v. Moore, 65 N. C. 382; Barrett v. Barrett, 8 Me. 353; Hutchins v. State Bank, 12 Met. 421; Mackay v. Church (R. I. Sup. Ct. 1885), 1 New England Rep. 141: Campbell v. Brown, 64 Iowa, 425; S. C., 52 Am. Rep. 446. None of these cases hold that such an assignment or transfer is valid as against creditors in the jurisdiction in which the assignee sues or as against personal representatives there.
In Mackay v. Church, the court expressly declared that it would not attempt to decide the question under such circumstances, the facts of the case not calling for any such decision. Referring to the fact that some of the authorities, which held that the assignee could not sue, assigned as one of the reasons for the doctrine the protection of resident creditors, the court said: "This last consideration does not apply in the case before us for it does not appear that there are any creditors of William E. Duffy in this State." ** * "We therefore hold that in a case like this, in which no interests but those of the parties to the note are involved, and we say this without passing on the effect of the transfer when there are creditors in this State, an administrator may transfer a note upon which the indorsee may sue in this State."
In Peterson v. Chemical Bank, it appeared that there were no creditors of the decedent in the State of New York in which the action was brought by the assignee. But it would seem that the existence of creditors here would have made no difference, for such is the clear meaning of the two opinions which were delivered. Denio, C. J., on this point says: "I have not thus far referred to the circumstance that Cohen was shown not to have owed any debts in this State. The fact was proved as strongly as in the nature of the case such a position could be established. The administrator, whose business it was to ascertain the existence of debts and the confidential servant of Cohen, who was very familiar with his transactions, affirmed that there were none; and the defendant
gave no evidence on the subject. The motive of policy for forbidding the withdrawal of assets to the prejudice of domestic creditors did not therefors exist in this case. Still if the rule is that neither the foreign administrator nor his assignee can maintain an action in our courts to collect a debt against a debtor residing here on account of its tendency to prejudice domestic creditors,the exceptional features of the present case would not change the principle. But I am of opinion that the objection should be regarded as formal that it does not exist where the plaintiff is not a foreign executor or administrator, but sues in his own right though his title may be derived from such a representative." Aud Judge Potter says, at page 51: "The defendants set up no equities against the demand itself nor against the testator by counter claim, recoupment or offset. They stand in no relation of trustees for the creditors of the testator residing in this State, if any there were." These opinions on this point were however merely obiter as it appeared that there were in fact no creditors to be protected.
There are very respectable authorities holding that the assignee of a foreign personal representative cannot sue the debtor in the State in which the debtor resides. Thompson v. Williams, 2 N. H. 191; Dial v. Garvy, 14 S. C. 573; Stearns v. Burnham, 5 Me. 261. In so far as these cases rest upon the principle of protecting resident creditors, they have a very substantial foundation. The incapacity of foreign executors or administrators to sue in any jurisdiction in which they have not been appointed originally grew out of this policy of the State to favor its own citizens. This rule affords no protection to the citizen if the personal representative can collect and remove beyond the jurisdiction of the State a claim against a resident debtor by selling it to another, who may sue on it without any disability. If the assignee may sue when there are resident creditors, then the doctrineordained for the protection of the citizen who is a creditor, that the foreign executor or administrator cannot sue, is of no conceivable benefit to the citizen, and might as well be overruled. It is a very simple evasion of this rule to assign the claim to a merely nominal assignee who will account to the personal representative after he has collected the claim by suit, and thus in effect the representative sues and withdraws the fund from the jurisdiction in which the creditor whom the State is so anxious to protect, resides. While in the case of an executor or administrator the disability to sue in a foreign State is absolute and not dependent upon the existence or non-existence there of resident creditors, yet in the case of an assignee it would be well to deny him the right to sue only when the rights of resident creditors might be affected. Such a doctrine would be sound on principle. The refusal to allow the assignee to enforce his claim where there were resident creditors would not be based upon his incapacity to sue on any defect in his title, but upon the fundamental and universal principle that every government has complete control over all property within its territorial limits, and will hold such property for the benefit and protection of its citizens. Death instantly creates a claim upon all the property of the decedent in favor of his creditors superior to the claims of all others. It is the policy of every State to hold all property within its jurisdiction for the satisfaction of the claims of its resident creditors, instead of suffering the property to be removed and the citizens compelled to resort to the tribunals of a foreign government to enforce their demands. Although for some purposes a debt is held to have its situs at the domicile of the creditor, yet for the purpose of granting administration the debt is declared by all the authorities to have its situs at the domicile of the debtor; and all the adjudications agree that a
The fact, that at the time the debtor is sued or makes the payment in the foreign State there is an administrator to whom he could make payment in his own State, does not seem to affect the nature of the payment as a complete discharge of the debt. Fox v. Carr, 16 Hun, 434. But see contra, Ferguson v. Morris, 67 Ala. 390. This was held the rule in case of an action to recover the debt in the case cited. There was at the time the suit was brought in the State of New York an administrator in the State of North Carolina, which was the State in which administration was originally
debt owing by A. to B. may be attached by C., a creditor of B., in the State in which A. resides, although B. is not a resident of that State. This is done every day, and clearly shows that the debt is properly within the State in which the debtor resides, for otherwise it could not be attached there, the creditor to whom such debt is owing being a non-resident. That a debt is property at the domicile of a debtor for the purposes of administration is held in the following cases: Fox v. Carr, 16 Hun, 434; Weaver v. Norwood, 59 Miss. 665; Speed v. Kelly, id. 47; Pinney v. McGregor, 102 Mass. 186; Owen v. Miller, 10 Ohio St. 136: Chap-granted, and was the domicile of the decedent at the man v. Fish, 6 Hill, 554; Wyman v. Halstead, 109 U. S. 656; Slocum v. Sanford, 2 Conn. 533. And it has been held that the fact that a bill or note has been given for the debt, and such bill or note is in another State does not affect the question. See same cases. But in Goodlet v. Anderson, 7 Lea, 286, and St. John v. Hodges, 9 Baxt. 334, the court held that the administrator of the domicile of the debtor had no title to negotiable notes, which had been given for the debt, but that the administrator of the decedent's domicile, where the notes were, had title to them. The debt then, being property of the domicile of the debtor for the purposes of administration, it naturally follows that the claim of the assignee of such debt, being no stronger than that of the representative from whom he purchased it, is subject to the rights of resident creditors, because it is subject to their rights in the hands of the representative, and the assignee therefore should not be allowed to collect his claim by suit until the resident creditors are protected; otherwise the State through its tribunals voluntarily relinquishes, to the detriment of its own citizens, property within its jurisdiction and under its control.
In Du Val v. Marshall, 30 Ark. 230, it was held that an assignment by the administrator of the domicile of the decedent of a judgment recovered in another State was void as against an administrator of the same estate appointed in that State before the assignment, even though there were no creditors in that State. This decision is undoubtedly sound, for upon the appointment of the ancillary administrator he became vested with the title to all property of the decedent within the State, and the administrator of the domicile had no more authority to sell the judgment after that than a stranger.
While the personal representative cannot sue in a foreign State, yet if the debtor pay to him the debt owing to the decedent's estate, the payment will be valid if made in the State in which such personal representative was appointed. Wilkins v. Ellett, 108 U.S. 250; Klein v. French, 57 Miss. 662; Wilkins v. Ellett, 9 Wall. 740; Parsons v. Lyman, 20 N. Y. 103; Williams v, Stoars, 6 Johns. Ch. 353; Doolittle v. Lewis, 7 id. 45; Vroom v. Van Horne, 10 Paige, 549; Tecothick v. Austin, 4 Mason, 33; Skakespeare v. Fidelity, 97 Penu. St. 173; Stevens v. Gaylord, 11 Mass. 256; Merrill v. New England Life Ins. Co., 103 id. 245; Eq. Life Ass. Soc., 76 Ala. 641; S. C., 52 Am. Rep. 346.
The reason for this rule is manifest. The debtor having come into the jurisdiction in which the personal representative may sue him, and thus compel him to pay the debt, is certainly justified in paying the debt voluntarily. That he may be sued while in the State in which the representative was appointed can admit of no doubt. Saunders v. Weston, 74 Me. 85.
It has been intimated however that if the debtor departs from his State of residence, in which an ancillary administrator has been appointed, for the purpose of defrauding him, no payment to another administrator, even in a suit, will protect him against liability to the administrator of the State in which he resides. Fox v. Carr, 16 Hun, 434, 439, 440.
time of his death. The ground upon which the decision was placed was that the debt followed the person of the debtor, and that although it was originally property in North Carolina where the debtor resided and vested in the administrator there, yet that when the debtor came into the State of New York the debt became assets in that State, and as such could be collected by the ancillary administrator there. It is diffi cult to reconcile this case with principle. The question was not one of jurisdiction over the person of the defendant debtor, but of title to the debt. In the first place it vested in the domiciliary administrator while the debtor was a resident of the State. How could that title be divested by any act of the debtor? In the second place it never became assets in the State of New York because the debtor was not domiciled there at the time suit was brought, but was there only temporarily. The debt follows the domicile of the debtor, and not the person, in all his wanderings, See Saunders v. Weston, 74 Me. 85.
Whether payment in the State in which the debtor lives to a foreign representative will discharge the debt in all cases is not definitely settled. It has been held that if there are no creditors or next of kin in the State in which the debtor resides, and no executor or administrator appointed therein, payment will be good as against an administrator subsequently appointed. Wilkins v. Ellett, 9 Wall. 740; S. C., 108 U.S. 256; Klein v. French, 57 Miss. 662; Shakespeare v. Fidelity, 97 Penn. St. 173; Gibson v. Powder, 40 Ark. 195. And in Wyman v. Halstead, 109 U. S. 656, the Supreme Court said: "But payment to the administrator appointed in the State in which the intestate had his domicile at the time of his death, whether made within or without that State, is good against any administrator appointed elsewhere." This broad and comprehensive language would justify payment within the State of the debtor's domicile, although there were creditors therein. The authorities seem to be against such a doctrine.
In Ferguson v. Morris, 67 Ala. 390, the court held that such payment afforded no protection against the claims of creditors who were residents of that State. Judge Story declares it to be his opinion that such a payment would not constitute a good defense to the claim of a subsequently appointed administrator in the debtor's domicile. He says: "Suppose an administration should afterward be granted in the foreign country, would it be any bar to an action brought by the foreign administrator against the debtor for the same debt, that the debtor had already paid it to another administrator, who had no right to demand it in virtue of his original administration, and who therefore might properly be deemed a stranger to the debt!" * * * "It seems sufficient to answer these questions in the affirmative without shaking some of the best established principles of international law on this subject." Story Confl. Laws, § 515a.
The great jurist is clearly right in cases where it appears that there are creditors in the debtor's domicile; but in so far as he intimates an opinion that the payment would not be justifiable in any case as against