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by sample—the cotton delivered not being equal in representation was false to the defendant's knowledge. quality with the sample. The plaintiff's counsel con The scienter as well as the falsehood being proved, tended that the delivery of samples not corresponding proof of the fraudulent intent is regarded as concluwith the bulk was a false representation of the quality sire. Evidence that the defendant intended no fraud of the cotton, which must be cousidered in point of will not be received, and the jury will be instructed law as fraudulent, as being the statement of a fact to find for the plaintiff, though they should be of opinwhich the party making it did not know to be true. ion that the defendant was not instigated by a corThe judge directed the jury that unless they could see rupt motive of gain for himself, or by a malicious mogrounds for inferring that the defendants or their tive of injury to the plaintiff. Foster v. Charles, 6 brokers were acquainted with the fraud that had been Bing. 396; S. C., 7 id. 103; l'olhill v. Walter, 3 B. & Ad. practiced in the packing, or had acted in the transac 114; and Nylne v. Harwood, 15 C. B. 778, are cases of tion against good faith or with a frauduleut purpose,

this kind. In each of these cases tho proof was that the defendants were entitled to a verdict. On error the representation was false to the knowledge of the the Court of Exchequer Chamber sustained tho charge

defendant. The jury added to its finding an expresof the judge. Tindal, C. J., delivering the opinion of sion of opinion that there was no fraudulent intent, the court, said that “the rule to be deduced from all but the court nevertheless ontered judgment for the the cases appears to us to be that where upon the sale plaintiff on the ground that a willful falsehood was a of goods, the purchaser is satisfied without requiring a fraud. The language of Lord Campbell in Wildle v. warranty, he cannot recover upon a mere representa Gibson, 1 II. of L. (as. 603, 633, was directed to cases tion of the quality,

unless be can show that of this aspect; and Jessel, M. R., in a case where it the representation was bottomod in fraud. If indeed was proved that the representation was untrue to the the representation was false to the knowledge of the defendant's knowledge, refused to receive evidence party making it, this would in general bo conclusivo that he in fact believed it to be true. Iline v. Campion, evidence of fraud; but if the representation was L. R., ✓ Ch. Div. 311; 23 Eng. Rep. 629. honestly made, and believed at the time to be true by In other cases of actionable frauds, the probative the party making it, though not true in point of fact, force and effect of the ovidence to establish the frauduwe think it does not amount to fraud in law.” The lent intent will depend upon the circumstances of the English courts have considered these decisions as a particular case. This question is presented in a comfinality, and it is now there settled that there can be plex form where the defendant has added to a repreno fraud without dishonest intention10 such fraud sentation-which turns out to be untrue, but was not as was formerly termed legal fraud. 1 Benj. on Sales false to his knowledge-an aflirmation that he made (Corbin's ed.), $ 638.

the representation as of his own knowledge. In such The American cases, as might be expected of a sub cases the force and effect of the oridence will depend, ject so prolific of decisions, are not altogether harmo in a great measure, upon the nature of the subject nious. Mr.Pomeroy, speaking of the cases I have cited concerning which the representation was made. If it from the Queen's Bench as holding that a representa be with respect to a specific fact or facts susceptible of tion, false in fact, if acted upon, would support an ac exact knowledge, and the subject-matter be such as tion, and that the defendant's liability was independ that the aflirmation of knowledge is to be taken in its ent of his knowledge or ignorance of its actual falsity, strict sense, and not merely as a strong expression of says: “This theory admitted the possibility of fraud belief, the falsehood in such a representation lies in at law where there was no moral delinquency. It dle the defendant's atfirmation that he had the requisito nied that moral wrong was an essential element in the knowledge to vouch for the truth of his assertions, legal conception of fraud. The same viow was for a and that being untrue, the falsehood would be willful time accepted and adopted by a considerable number and therefore fraudulent. But where the representaof decisions in different American States. These cases tion is concerning a condition of affair's not susceptihave however been overruled, and the theory itself ble of exact knowledge, such as representations with abandoned in England, and generally, if not univer- respect to the credit and solvency of a third person, or sally, throughout the States of our own country. It is the condition or credit of a financial institution, the now a settled doctrine of the law that there can be no assertion of knowledge, as was held in Hlayerust v. fraud, misrepresentation or concealment without some Creasy, “is to be taken secundum subjectum muteriam, moral delinquency. There is no actual legal fraud as meaning no other than a strong belief founded upon which is not also a moral fraud." 2 Pom. E., & $S4. what appeared to the defendant to be reasonable and The English and American cases are fully cited in the certain grounds.” In such a case the question is notos to Paisley v. Freeman, 2 Sm. Lead. Cas. 176-186. wholly one of good faith. The form of tho aflirmaThey have placed the law on this subject where it was tion will cast the burden of proof on the defendant, put by Paisley v. Freeman and Ilaycrusl v. Creasy,and but when the evidence is in, the issue is whether the havo, I think, upon principle as well as by the great defendant honestly believe the representation to be weight of authority, established the law on the rational truo. In support of such an issue the defendant may, basis that in the action for deceit, moral fraud is es by way of exculpation, resort to evidence not admissential to furnish a ground of action.

sible in actions for other kinds of deceit. IIe may, as The principle on which the action for deceit is in Ilaycraft v. (reasy, give evidence that the person founded being ascertained, the next consideration is whose ability he aflirmed lived in a style, and with with respect to the proof and the proper instructions such appearances of property and means, as gare asupon the evidenco; for whatever the character of the surances of aflluence. He may give in evilence tho evidence may be--whether it consists of knowledge of information he had upon tho subject (Shrewsbury v. the falsity of the representation or some other fraudu Blount, :2 M. & G. 475), and show the general reputalent device intended for the purpose of deception- tion for trustworthiness of the person whose credit he the evidenco must be submitted to the jury under affirmed. Sheen. v. Bumpsted, 2 II. & C. 193. In fine, proper instructions. And I think much of the appar he may avail himself of any evidence which may tend ent confliot in the cases has arisen from the failure to to show good faith or probable grounds for his belief, discriminate between the issue to be proved and the leaving the question to be determined, upon all the force and effect of the evidence presented.

evidence, whether his conduct was bona fide whether The simplest form in which the question of the suf at the time he made the representation, he honestly ticiency of proof arises is where the proof is that the believed that his representation was true.

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The Massachusetts cases cited to support the in an institution must necessarily be intrusted to exeostruction certified to the court admit the distinction I utive officers and subordinate agents, and the directors have referred to.

generally cannot know, and have not the requisite In Tryon v. Whitmarsh, 1 Metc. 1; 35 Am. Dec. 339, ability to learn, by their own efforts, the exact condiwhich was an action for false and fraudulent represen tion of the affairs of the company, and it has tations as to the credit of third persons, whereby the been found that no vigilance on their part has been plaintiffs were induced to give them credit, a verdict adequate to protect these institutions from frauds for the plaintiff's was set aside for the reason that the and peculations covered up and concealed by false enjudge should have instructed the jury that the de tries and false reports. A representation by a director fendant would not be liable if they were of opinion, that the iustitution is in a sound and solvent condi. from the evidence, that he gave an honest opinion, and tion within his own knowledge possesses the legal believed that the persous recommended were trust characteristics of the like representation as to the worthy.

credit and financial ability of a third person, such as In Hazard v. Iruin, 18 Pick. 96, the false represen was before the court in Haycraft v. Creasy, and it tation was by a vendor, on the sale of an eugine, with must be subject to the same legal rule. respect to its condition. He made the representation The facts on which this case was founded were as of his own kuowledge. The condition of the engine these: The plaintiff was a depositor in the bank. was a fact the vendor could easily have ascertained. About the first of August, 1878, there was a rumor in The court (Shaw, C. J.), cited Haycraft v. Creasy, and circulation affecting the condition of the bank. The distinguished it from the case in hand in that the sub defendaut was one of the directors of the bank, and a ject-matter of the representation was one of fact in member of the finance committee. The plaintiff havrespect to which a person can have precise and accur ing heard the rumor, went to the defendant and told ate knowledge, aud in respect to which, if he speaks of him of the rumor in circulation, and that he was a dehis own knowledge, and has no such knowledge, his positor and did not want to lose his money, and proaflirmation is essentially false."

posed to take it out. The defendant said: “It can't In Puge v. Bent, 2 Metc. 371, the false representation be so, unknown to me and Mr. Monks. We are on the was in relation to the nature and amount of the assets finance committee. There can be nothing wrong with assigned by the defendants. The condition and amount that bank unknown to me and Mr. Monks. Don't boof the assets were peculiarly within the knowledge of lieve any of these false reports; believe me; take my the defendants. The court (Shaw, C. J.), said: “The word for it. The bank is good, paying six per centprinciple is well settled that if a person make a repre the best in the State. If all that is in Jersey tells you sentation of a fact as of his own knowledge, in relation the bank is bad, don't believe it till I tell you." He to a subject-matter susceptible of knowledge, and also said “there was a surplus of over $6,000 after the such representation is untrue,

it is a fraud dividends were paid." The bank continued to pay all and deceit for which the party making it is responsi- demands down to November 1, 1878, when it went into ble.

But in a matter of opinion, judgment the hands of a receiver. It was insolvent on the 1st of or estimate, is he states a thing of his own knowledge, August, 1878, when these representations were alleged if he in fact believes it, and it is not intended to de to have been made. ceive, it is not a fraud, although the matter misstated The defendant was a director of the bank from June is not true. The reason is that it is apparent from the 6, 1869, until its suspension in November, 1878, and a subject-matter that what is thus stated as knowledge member of the finance committee from November 19, must be considered and understood by the party to 1877. The dutios of the finance committee were to atwhom it is addressed as an expression of strong belief tend to all applications for loans, and to look after the only, because it is a subject of which knowledge, in its investing of the company's funds. The general charge strict sense, canno: be had."

and government of the bank devolved upon the exelu Stone v. Denny, 4 Metc. 151, the action was on a cutive committee, of which the defendant was not a false representation on a sale of property made by the member. There was no evidonce that the defendant defendant, on a schedule exhibited which he represen had actual knowledge of the condition of the bauk. ted as correct of his own knowledge. Dewey, J., in On the contrary, the proof was that at a regular meethis opinion, referred to the Massachusetts cases and ing of the directors, on the 31st of May, 1877, the presisaid : “From an examination of those cases and dent read his statements, showing a surplus of $6,000, others bearing upon the question, I apprehend how and a motion was adopted declaring a dividend of six ever that it will be found that no real change has been per cent. The next regular meeting was on the 19th sanctioned in the great and leading principles of law of November, 1877. It appears by the minutes that a applicable to cases of deceit, and that now, as for statement of the assets and liabilities was read in de merly, to charge a party in damages for a false repre tail, and a dividend of six per cent per annum was desentation, * * it must appear that it was made clared for the six months ending October 31, 1877. On with a fraudulent intent, or was a willful falsehood.” May 30, 1878, another meeting of directors was held, at The illustration be gives is “of one asserting as of his which the minutes of the last meeting were read and own knowledge a matter of which he has no knowl

approved, and a dividend at the rate of six per cent edge, nor any sufficient ground for making the asser for the six months ending April, 1878, was declared. tion.” The subsequent observation of the learned All these dividends were credited, and were paid to judge, “that if one positively affirms a fact as of his such of the depositors as presented their books. The own knowledge, and his affirmation is false, his repro defendant was present at each of these meetings of the sentation is deemed fraudulent," is unobjectionable as directors. applied to the facts of that caso, wbere, because of the On these facts the defendant was not entitled to the subject-matter of the representation, the affirmation nonsuit he asked for; but he was entitled to a differof knowledge was to be taken in its strict sense, and ent instruction to the jury. The case canuot be disnot as only a strong expression of belief.

tinguished from Haycoast v. Creasy and Taylor F. The principle adjudged in IIaycraft v. Creasy is ap

Ashton, and it should have been left to the jury to say plicable to actions against directors for false and

whether, upon the ovidence, the defendant made the

representations with a fraudulent purpose to deceive, fraudulent representations concerning the financial

or whether he made them in good faith and in the houcondition of the institutions in their charge. It was est belief that they were true. so applied in Taylor v. Ashton, which has become a There will be a certificate accordingly. leading case in the English law. The affairs of such [Seo 23 Eng. Rep. 395; 9 Daly, 308; 31 Hun, 192.]

NEW JERSEY SUPREME COURT ABSTRACT.* of Errors and Appeals, delivered in the case of Tide

Water Co. v. Coster, reported in 3 C. E. Green, 518, NATIONAL BANK-USURY - FEDERAL AND STATE seems to me to dispose of this question. The opinion STATUTE.—Where a promissory note is discounted by

of Chancellor Walworth, in 3 Paige, 73 (Beekman v. a National bauk in New York, the New York statute Saratoga, etc., R. Co.), which is quoted by the chief forfeiting the entire debt is not applicable to the justice in the Tide Water case, is to the effect that if transaction. The Federal act supersedes the State the public interest can be promoted by the taking of law, inposing penalties for usury, in so far as they per- private property, it rests with the Legislature to detertain to National banks. This is res adjudicata in the mine whether the benefit to the public will be of sutliSupreme Court of the United States. In Farmers' cient importance to render it expedient to authorize National Bank v. Dearing, 91 U. S. 29, Mr. Justice an interference with the private rights of individuals Swayne delivered the opinion of the court, overruling for that purpose, and the exercise of the right of emiFirst National Bank v. Lamb, 50 N. Y. 95, and deny.

nent domain. “Upon this principle of public benefit,'' ing the efficacy of the State law to work the forfeiture says ('hancellor Walworth, “not only the agents of of the debt. Importers, elc., National Bank v. Littell. the government, but also individuals and corporate Opinion by Van Syckel, J.

bodies have been authorized to take private property

for the purpose of making public highways, turnpike COVENANT-AGAINST INCUMBRANCES-DAMAGES.-

roads and canals, establishivg ferries, draining swamps (1) A street was opened and land was assessed for ben

and marshes, and of bringing water to cities aud vilefits. Held, that the existence of the liability to be assessed was a breach of the covenant against incum- lages." In remarking upon the abore language of brances contained in a deed for said land executed be

Chancellor Walworth, the chief justice in the Tide

Water caso says it embodies the correct principle, and tween the time of opening the street and making the

that “that the legislative power is not competent to assessment. This question has received the considera

take the property of A. and transfer it to B., simply for tion of the Supreme Court of Massachusetts in the case

the benefit or convenience of B., because such an act of Blackie v. Hudson, 117 Mass. 181. In that case it

has no public aspect.” “But if the sequestration of was held that a covenant against incumbrances was

the property of A. will to a material extent be servicebroken by the existence of a liability to an assessment

able to the public at largo, whether such sequestration for widening the street, although the assessment there.

shall take place must be committed as a puro matter for was made subsequently to the execution of the

of discretion to the Legislaturo, provided such discredeed. In the subsequent case of Carr v. Dooley, 119

tion bo exercised in good faith.” Olmstead v. ProprieMass. 294, the same principle was adopted in regard to

tors of the Morris Aqueduct. Opinion by Parker, J. a liability for an assessment for building a sower. There is nothing in the statutes under which the im JURISDICTION-LOCAL COURT-CONSENT WILL CONprovements mentioned in those cases were made which FER.–The District Court of one city may entertain a distinguishes them from the one now under considera- suit against a resident of another city in which a Distion. It may be observed of the cases in Massachu-trict Court exists, provided the defendant does not in setts that they fix the point of time when the liability time object thereto; and if he goes to trial without arises at the date of the order to make the improre- raising the objection the juristiction of the court will ment. Here it is necessary only to hold that the lia- be complete. Sometimes the law under which a tribubility exists from the time of the execution of the nal is organized confers jurisdiction on such terms work which constitutes the improvement. It is not that the status of parties is evidently designed to conintended to criticise or adopt the Massachusetts rule, stitute one of the legal bases of authority. Thus, in which has the merit of certainty as to the timo when the grant of judicial power to the government of the the lien becomes fixed, but it is apparent that the cor United States, the citizenship of parties is made a conrectness of the doctrine that the incumbrance pre- dition of jurisdiction. U. S. l'onst., art. 3, 2. In cedes the assessmont strikes the judgment more forci- actions brought in the Federal courts under this grant bly after the work has been done and the benefit has the essential fact of citizenship must be averred upon actually accrued for which the assessment has been the record, or the courts camot lawfully proceed. made. To this extent only is it essential to go to hold | M. C. & L. M. Railway Co. F. Swan, 111 L. S. 379. So that this plaintiff is not only entitled to recover, but in the creation of certain strictly local courts within to recover substantial damages. This result is in ac the State of Now York the jurisdiction was expressly cordance with the views of the chancellor in the case limited to cases in which the cause of action aroso of White v. Stretch, 7 ('. E.Green, 76, a similar case to within a designated territory, or the subject of the acthis. (2) The measure of damages in action for a tion is situated, or the defendant resided or was served breach of the covenant against incumbrances differs with process within that territory. Thereupon it was in three classes of cases. First, where the incum- held that some one of these elements of locality must brance is a debt which has been paid by the cove exist to confer upon the court jurisdiction of the cause, nantee; second, where it might have been, but has not and that to extend the jurisdiction to causes not thus been so paid; and third, where the incumbrance is such localizedł would strip the courts of the local character that it cannot be discharged, as a servitude or

with which the Legislature had clothed them. Wheelock tured mortgage. In the first class of cases the covo. T. Lee, 74 N. Y. 495; Davidsburgh v. Insurance ('o., 90 pautee recovers what he has paid; in the second class id. 526. In such instances as these the status of the he recovers nominal damages only, and in the third litigants is ranked with the subject-matters in controclass he recovers an amount estimated as a compensi versy as donating a class of causes to which the juristion for the depreciated value of the land resulting diction is confined, because of the preciso terms in from the existence of tho incumbranco. Sedg. Dam. which the limited jurisdiction is granted. But in our 179. The present case is within the first class. Fuyan act constituting District Courts, jurisdiction over v. Cadmus. Opinion by Roed, J. [(2) Sec 26 Am. causes does not seem to be made dependent upon the Rep. 135.]

stutus of litigants. No restrictive terms so confining CONSTITUTIONAL LAW-PUBLIC PURPOSES-PRIVATE

it appear. Every suit of a civil nature at law, involvPROPERTY.–The supplying of a city or town with

ing not more than a designated sum, and except cerwater is a public purpose. The opinion of the Court

tain specified causes of action, is made cognizable in

these courts. The boundaries of jurisdiction are thus *Appearing in 10 N.J. 1. Reports

determined by the nature of the controversy, and not


by the place of its origin or the status of the parties. The added clause, giving each court exclusive: jurisdiction over such suits when the parties defendant reside within the city where the court is held is not necessarily nor most reasonably to be regarded as detracting from the previous grant, but possesses merely i force quite consistent with it. The office of this clause is to secure to the residents of these cities the privilege of having suits against them within the act brought only in that tribunal which is convenient for them. It indicates simply the persons who may not be compelled to submit to other jurisdictions. The exemption granted thus appears to be a mere personal privilego, and therefore those who have it may waive it at pleasure. If a defendant so favored be sued before some other tribunal, and designs to avail himself of his privilege, he must either plead to the jurisdiction (3 Bl. Com. 298) or move in time to be discharged. Pleading generally or going to trial without objection renders the authority of the court complete. Toland v. Sprague, 12 Pet. 300; McCormick v. P. R. Co., 49 N. Y. 303. Fuck v. Smilh. Opinion by Dixon, J.

after marriage sees her in a situation of temptation, and does nothing to rescue her, and she yields, will be understood as having cousented to her adultery. Chancellor Zabriskie declared in Hedden v. Hedden, 6 C. E. Green, 61, that if a husband sees what a reasonable man could not see without alarm, or if he knows that his wife has been guilty of ante-nuptial incontiuence, or if he has himself seduced ber before marriage whereby he is put upon his guard respecting her weakpess, he is called upon to exercise peculiar vigilance and care over her, and if he sees what a reasonable man could not permit, and makes no effort to avert the danger, he must be supposed to see and mean the result. Cane v. Cane. Opinion by Van Fleet, V. C.

WILL-WIDOW RECEIVING RENTS-ACCOUNT-TAXES AND INSURANCE.-A decedent left property, except a lot with an unfinished house thereon, which his widow occupied for about three months after his death, and then leased and received the rent. Iu a suit by the children for partition thereof, held, that she was entitled to reimbursement of moneys paid by her for taxes thereon, and also for repairs of damage to the house by a tempest, but not for the premiums on insurance policies taken in her own name, and that she must account for the rents. Houston v. Houston. Opinion by Chancellor.

WILL-DOWER-PROVISION IN LIEU-FAILURE TO DISSENT. - After directing that his debts be paid, and making a specific devise, a testator gave the “balance and residue” of his estate to his wife, declaring that that gift to her was in lieu of her dower. In the settlement of the estate and the payment of the testator's debts, all his personal estate was exhausted, and all his lands, other than those specifically devised, sold by order of the Orphans' Court. Held, that his widow was not deprived of her right of dower in those other lands by her failure to file her dissent to the devise to her within the time limited by the statute. Thompson v. Egbert, Harr. 159; Chiswell V. Morris, 1 MoCart. 101. Osmun v. Porter. Opinion by Chancellor.




STATUTE-IMPLIED REPEAL.- Where there are two statutes on the same subject, passed at different dates, and it is plain from the frame work and substance of the last that it was intended to cover the whole subject, and to be a complete and perfect system in itself, the last act must be hell to be a legislative declaration that whatever is embraced in it shall prevail, and whatever is excluded is discarded and repealed. United States v. Tynen, 11 Wall. 88. Mr. Justice Van Syckel, in Roche v. Jersey City, 11 Vr. 257, 259, said: “ This rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the Legislature makes a revision of a particular statute, aud frames a new statute upon the subjectmatter, and from the frame-work of the act it is apparent that the Legislature designed a complete scheme for the matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions mentioned in the later act as the only ones on that subject which shall be obligatory.Bracken v. Smith. Opinion by Van Fleet, V. (. [See 30 Alb, L. J. 238.] MARRIAGE--DIVORCE-PRESUMPTION OF ADULTERY

REBUTTAL MAY SHOW DECOYING — DUTY TIUSBAND.-(1) A visit by a married woman to a brothel will, unless satisfactorily explained, justify the presumption that she went there for a criminal purpose. Lord Stowell said, in Williams v. Williams, 4 Eng. Ec. 416 (1 lagg. ('on. 299), that it was almost impossible to believe that a woman would go to a brothel for any but a criminal purpose; and therefore in his opinion it had been properly held that such conduct on the part of a wife furnished sufficient evidence of adultery to justify a decree that she was guilty. And Dr. Lushington, in Astley v. Astley, 3 Eng. Ec. 303 (1 Hagg. Ec. 711), held that such conduct on the part of a wife must constrain a court to conclude that she had committed adultery. (2) Such conduct will not however afford evidence of guilt if it is shown that the wife was decoyed there by the procurement of her husband, and for the purpose of making a case against her. (3) A husband who seduces his wifo before marriage, and

* To appear in 39 N. J. Ey Reports.


CONTRACT—NOVATION CONSIDERATION-STATUTE OF FRAUDS.-W. was indebted to plaintiffs, and defendants were indebted to W. By W.'s request defendants promised to pay the amount which they owed W. to plaintiffs instead of to him, and plaintiffs relinquished their claim in consideratiou of such promise, and defendant charged the amount to it on its own books. lleld, that the transaction rested upon a sufficient consideration, and that plaintiffs were entitled to recover the amount from defendants. 2 Whart. Cont., § 853. The statute of frauds has no application to a case like the present. Bird v. Gammon, 3 Bing. (N. ('.) 883; Dearborn v. Parks, 5 Greenl. 81; Rowe v. Whittier, 21 Me. 545; Pike v. Brown, 1 Cush. 133; Barker v. Bucklin, 2 Den. 45; Farley v. Cleveland, 4 Cow. 432; Rice v. Carter, 11 Ired. 298; Files v. McLeod, 14 Ala. 611; Robbins v. Ayres, 10 Mo. 538, Bowen v. Kurtz, 37 Iowa, 239. The rule has been stated to be that where a party who was not before liable undertakes to pay a debt of a third person, and as a part of the agreement, the original debtor is discharged from his indebtedness, the agreement is not within the statute. Packer y. Benton, 35 Conn. 343; Fairlie v. Denton, 8 Barn. & C. 395; Wilsou v. Coupland, 5 Barn. & Ald. 228. The defendant's counsel claims that no recovery can be had under the common counts. The testimony tended to show, and we think established the fact, that defendant was indebted to Weller in the amount of his indebtedness to plaintiffs, which was re

tained by them and constituted a fund in defendant's to personal property in one country under a title from hands with which to pay plaintiffs, and in such case the person domiciled in another can only be asserted the defendant wonld be liable under the count for by the instrumentalities which the institutions of the money had and received. Moreover the amount to be country where the claim is made have provided. The paid by defendant under the agreement was a sum foreign law furnishes the rule of decision as to the certain, and it is elementary law that when a sum cer validity of the title to the thing claimed; but in retain is due on a simple contract, indebitatus assumpsit spect to the legal assertion of that title it has no extrawill lie to recover it. Packer v. Benton, 35 Conn. 343. territorial force. As a result of this doctrine it is now Mulesone v. american Lumber Co. Opinion by Cham generally held everywhere, and is well settled in this plin, J.

State, that au executor or administrator appointed in [Decided Jan. 14, 1885.]

another State has not, as such, any authority beyond

the sovereignty by virtue of whose laws he was apEXECUTOR AND ADMINISTRATOR-FOREIGN-DOMI

pointed. Denio, J., in Parsons v. Lyman, 20 N. Y., CILE-PERSONALTY GOVERNED) BY LAW OF.--S., a bach 103, 112; citing Morrell v. Dickey, 1 Johns. Ch. 152; elor, who had previously been a citizen of Michigan,

Vroom v. Van IIorne, 10 Paige, 549. The same genwent to St. Louis, Mo., where he engaged in business, eral doctrine is also concisely stated in a case in the aud on March 27, 1876, died intestate at the hotel where Federal Supreme Court: "A grant of administration is he boarded. He left heirs in New York, Mimesota strictly confined in its authority and operation to the aud Michigan. He owned lands and claims, secured limits of the territory of the government which grants by mortgage, in Michigan, amounting to $50,000; one it, and does not de jure extend to other countries. It mortgage, executed by A. and wifo, for $1,125 and in camot confer, as a matter of right, any authority to terest, being payable at St. Louis, Mo., or at any other collect assets of the deceased in any other State, and place that S. might elect, in five years from date. L., whatever operation is allowed to it beyond the origias public administrator, claimed the right to adminis nal territory of the grant is a mere matter of comity, ter on the estate in St. Louis, and notified by tele which every nation is at liberty to yield or withhold, graph the heirs in Michigan of the death of S., and according to its own policy and pleasure, with refersent his body to them, as requested. R., a brother-in enco to its own institutions and the interests of its law of S., on May 29, 1876, took out letters of adminis citizens.'' Story, J., in Vaughan v. Northup, 15 Pet. tration in Michigan, and called on L. for the property, 2, 5. L. then, if legally administrator in Missouri, had which L. refused to deliver, insisting on his right to no official authority in this State except such as by act as public administrator. In June, 1876, L. made comity would be recognized; and the rules of comity public sale of the securities belonging to the estate for might be determined either by usage, of which the a mere nominal prico, and F. became the purchaser of judicial decisions would be evidence, or by statute. the A. mortgage, with knowledge of the appointment Some of these rules are general, and are well settled. of R., and subsequently assigned the mortgage to

There are cases, for example, where it has been held B., who executed a discharge thereof on payment of

that a foreign administrator has a right to collect and $600. M, afterward bought the land. R. died in Sep tako possession of administration (Doolittle v. Lewis, tember, 1878, complainant was appointed as his succes ū Johns. ('h. 45; Brown V. Brown, 1 Barb. ('h. 189; sor, and a suit was instituted to forecloso the mort Vroom v. Van IIorne, 10 Paige, 519; S.C., 4:2 Am. Dec. gage. Held (1), that although S. was at the time of his 94; Riley v. Riley, 3 Day, 74; S. C., 3 Am. Dec. 260; death domiciled in St. Louis, L. was not authorized by Smith v. Gould, 31 Mo. 4-13; Rand r. Hubbard), 4 Metc. the Missouri statute to tako charge of his estato as 252; Marcy v. Varcy, 3:2 Conn. 308), and where there public administrator; and (2) that as public adminis are no domestic creditors or other claimants, there will trator he had no authority, after tho appointment of be no occasion to question such cases. There may R. as administrator, to sell and assign the mortgage in also be cases of payments to a foreign administrator suit, and that the mortgage should be foreclosed. The which may be recognized, there being no conflicting geueral principle relied upon by defendants, that administration. Williams v. Storrs, 6 Johns. Ch. 353; personal property, in contemplation of law, accom Trecothick v. Austin, 4 Mason, 16, 33; Wilkins v. Elpanies the person of the owner, and that its cisposition lett, I Wall. 740; Vroom v. Van Horne, supru; ('ition his death is to be determined by the laws of his zens' Bank v. Sharp, 5:3 Vd. 5:21. And where an addomicile. But while tho rule of distribution is thus ministrator in the forum of his appointment has alsdetermined, the steps to reach it may be otherwise signed demands bona notubiliu there, it may be correct prescribed; and when tho property is in one jurisdic to hold that his assignee may suo thereon here in his tion and the domicile in another, the necessity for dis own name; as was held in Ilarper v. Butler, 2 Pet. 239, tinot proceedings in administration may be impera and Petersen v. (hemical Bank, 3:2 N. Y. 21, and cases tire. The proceedings, when taken in this class of cited; as to which see knapp v. Lee, 1:2, Mich. 41; S. ('., cases, are governed and regulated by certain rules of 3 N. W. Rep. 211. But this caso involves the validity interstate comity, which are thus stated by the Court of the assignment of a debt secured by real-estate of Appeals of New York: “ It is an established doc mortgago on lands in this State. It was decided in trine, not only of international law, but of muni Cutter r. Darenport, 1 Pick. 81, that the foreign adcipal law of this country, that personal property has ministrator had no authority to make such an assignno locality. It is subject to the law which governs tho ment; and this is followed in the recent case of Dial person of the owner, as well in respect to the disposi v. Gary, 11 S. ('. 573; S. ('., 37 Am. Rep. 737. Whether tion of it by act inter vilos as to its transmission by these decisions would be followed in this State if there last will and testament, and by succession on the

tatute hearing upon the question, we do not owner dying intestate. The principle no doubt has its care to inquire, because we think if the power to asfoundation in international comity, but it is equally sign would exist independent of statute, it does not obligatory as a rule of decision in the courts as a legal exist under the statutes now in force. The statutes rule of purely domestic origin. It does not belong to provide for recognizing the authority of a foreign adthe judges to recognize or deny the rights which indi ministrator when it becomes necessary to make sale viduals way claim under it at their pleasure or caprice; of lands in this State, and prescribes the steps to be but it having obtained the force of law by user and taken for that purpose. Ilow. St., $$ 6057-6061. If adacquiescence, it belongs to the political government of ministration is needed in this State for other purposes, She State to change it whenever a change becomes de new letters must be taken out; and an administration sirable. But the right which au individual may claim ancillary to one in another State would proceed like any

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