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January 1, 1848


THIS case was brought up, by writ of error, from the Circuit Court of the United States for the Eastern District of Louisiana. The history of the case is this. In April, 1836, Charles S. Lee, a resident of the county of Claiborne and State of Mississippi, was sued in the county court of Claiborne, by Christopher Dart and William Gardner, who called themselves late merchants and copartners trading under the style and firm of Dart & Co., and stated the suit to be for the use of Christopher Dart. It is not necessary to state the cause of action, or trace the progress of the suit minutely. Lee appeared to the suit. In December, 1836, his death was suggested. In July, 1837, Ann Lee took out letters of administration upon the estate of Charles S. Lee, under the authority of the probate court of Claiborne county. In September, 1837, the suit was revived against the administratrix, by a scire facias. In November, 1837, she appeared to the suit and pleaded the general issue. On the 1st of December, 1838, the cause came on for trial, when the plaintiffs obtained a judgment for $6,080.99. On the same day, viz. the 1st December, 1838, Christopher Dart, for whose use the judgment was entered, made an assignment of it to John B. Thrasher, of Port Gibson, the nominal defendant in error in the present case. After this, however, a new trial was granted by the court of Claiborne county in the suit against Ann Lee, administratrix, which resulted in another judgment, for a different sum of money, in June, 1840. Another new trial was granted, and in December, 1840, another judgment was rendered against the administratrix for $6,988.05. Nothing further appears to have been done for some time. The next fact in the history of the case is, that David S. Stacy, the plaintiff in error in the present case, and a citizen of Louisiana, took out letters of administration upon the estate of Charles S. Lee, in the State of Louisiana. At what particular time these letters were taken out, the record does not show. In January, 1844, John B. Thrasher, to whom the judgment in Mississippi had been assigned by Christopher Dart, as above stated, filed a petition in the Circuit Court of the United States for the Eastern District of Louisiana, against Stacy, the administrator of Charles S. Lee. Thrasher now stated himself to be suing for the use of William Sellers, and averred that Sellers and himself were both citizens of the State of Mississippi. The petitioner stated himself to be the legal owner, by transfer and assignment, of a judgment for $6,988.05, which judgment was final and definitive. In February, 1844, Stacy appeared to the suit and filed the following exceptions and answer, which are according to the practice in Louisiana, and equivalent to a demurrer. 'David S. Stacy, a citizen of the State of Louisiana, residing in the parish of Concordia, administrator of the succession of Charles S. Lee, in the State of Louisiana, under the appointment and authority of the Court of Probates of the parish of Concordia aforesaid, being made defendant in the above-entitled suit, appears and pleads as follows, by way of exception:–– '1. That plaintiff in his petition does not allege or show that this honorable court has jurisdiction of this suit, as it is not therein alleged that Christopher Dart, who is declared to be the assignor of the judgment upon which this suit is brought, was either an alien or a citizen of another State than Louisiana, or could have maintained this suit in this honorable court either against the appearer or the said Charles S. Lee. '2. Appearer alleges that Christopher Dart and William Gardner, the alleged owners of the claim upon which the judgment was obtained in Mississippi, were citizens of Louisiana, and members of a commercial firm located in New Orleans, and could not have maintained this suit in this honorable court either against the said Lee or against this appearer, and that this court has no jurisdiction of this suit. '3. That the said William Gardner, one of the joint owners of said claim, was a citizen of Louisiana, and that the said Dart & Gardner could not have maintained a suit upon said claim in this honorable court either against the said C. S. Lee or against this appearer. '4. That the said C. Dart, under an assignment and transfer of said claim from the said Gardner, could not have maintained a suit thereon in this honorable court. '5. Appearer further excepts and says, that this honorable court has no jurisdiction over successions in the State of Louisiana, nor over the settlement of said successions and the distributions of the proceeds among the creditors, nor over administrators and others appointed to administer them, nor of the establishment of claims for money against such successions; that the Court of Probate of this State have the sole and exclusive jurisdiction of all these matters; that no property belonging to a succession in the course of administration in the probate court, whose jurisdiction has attached over the subjectmatter, can be taken, levied upon, or sold by process from the courts of the United States; nor can said probate courts be ousted or disseized of their said exclusive jurisdiction once obtained, nor the property withdrawn from their control by any other tribunal. That this has been the well-known and settled law of the State for the last twenty years, and that the said Dart & Gardner contracted in New Orleans, in Louisiana, under and in reference to this law, and are bound by it; appearer alleges that this honorable court, for the above reasons, has no jurisdiction in this suit, ratione personae, nor ratione materiae, but avers that the Court of Probates of the parish of Concordia has sole and exclusive jurisdiction thereof. Wherefore appearer prays that this suit may be dismissed at plaintiff's costs, &c. 'If all the above exceptions should be overruled, then appearer pleads that the plaintiff has neither alleged nor shown any cause of action against him whatever, nor any indebtedness to the plaintiff by the succession of C. S. Lee in the State of Louisiana. 'If the above exception should be also overruled, then defendant denies generally and specially each and every allegation in plaintiff's petition contained. Wherefore he prays that plaintiff's demand may be rejected with costs, and for general relief in the premises, &c. (Signed,) D. S. STACY, Adm'or estate C. S. Lee.' On the 26th of February, 1844, Thrasher filed an amended petition, averring that Christopher Dart, the assignor of the judgment, was, at the time of the assignment, an alien, being a citizen of the republic of Texas, and resident therein, and that Charles S. Lee, at the time of said assignment and of his death, was a citizen of Louisiana. On the 13th of March, 1844, the court overruled the exceptions, and on the 11th of April following gave the following final judgment. 'This cause came on for trial, and the law and the evidence being in favor of the plaintiff, it is ordered, adjudged, and decreed, that the defendant, David S. Stacy, as administrator of the estate of Charles S. Lee, be condemned to pay to the plaintiff, for the use of William Sellers, the sum of six thousand nine hundred and eighty-eight dollars and five cents, with eight per cent. interest thereon per annum from the first day of December, eighteen hundred and forty, until paid, and costs of suit. Judgment rendered April 11th, 1844. Judgment signed April 18th, 1844. (Signed,) J. McKINLEY.' From this decree, a writ of error brought the case up to this court. The case was argued by Mr. T. B. Barton, for the plaintiff in error, and Mr. Crittenden, Mr. Thrasher, and Mr. Henderson, for the defendant in error.

The opinion of the court was delivered by: Without attempting to disturb any doctrine heretofore established in regard to the conclusiveness of judgments, and the effect of the judgment of a court of one State, when sued upon or offered in evidence in the courts of another State, it is contended that that doctrine has never been extended to a case like the present, and that it would not be reasonable to give it such application. It is a principle incontrovertibly established in the English jurisprudence, in that of Louisiana (Benjamin and Slidell's Digest of Louisiana Laws, page 559, et seq.), and in all the other States, that 'no one, in general, can be bound by a verdict or judgment, unless he be a party to the suit, or be in privity with the party, or possess the power of making himself a party. For (as has been well said) otherwise he has no power of cross-examining the witnesses, or of adducing evidence in support of his rights. He can have no attaint, nor can he challenge the inquest, or appeal (or have a writ of error on the judgment). In short, he is deprived of the means provided by the law for ascertaining the truth, and consequently it would be repugnant to the first principles of justice that he should be bound by the results of an inquiry to which he was altogether a stranger.' (1 Stark. Law Ev. 217, 6th Am. ed.)

Mr. Barton, for the plaintiff in error.

The great and important question which the record presents, and to which this argument will be confined, is that to which the last exception is directed.

The petition, with the other proceedings in Louisiana upon the judgment in Mississippi, are not distinguishable from an action of debt, brought under the same circumstances, upon a like judgment, in the courts of those States where the practice is according to the course of the common law. The petition is founded, as the action of debt would be, upon the judgment. The validity and effect of the judgment must be the same in both kinds of proceedings. The case involves the question whether a judgment, rendered in one State against an administator who has taken administration of the assets in that State, and within that jurisdiction, can be made the foundation of an action in another State against a different administrator, whose administration has been taken within the jurisdiction of the latter, of the assets within the latter jurisdiction.

There are some special circumstances in this record which arrest our attention in advancing to the discussion of the main point. Cases of this kind must always be open to remark, and entitled to grave consideration. The judgment rendered against the first administrator, which is made the foundation of a recovery against the administrator out of the assets in another jurisdiction, must be taken to have adjudged that the administrator against whom the judgment was rendered had assets to satisfy the debt. That administrator, in the proceedings against him, must have admitted, by his pleadings, that he had assets; and that will always be the case when he neglects (as was the case in Dart & Co. v. Lee's Administratrix in Mississippi) to plead plene administravit; or, if assets have been denied by such plea, that issue must have been found against him. A general judgment, therefore, against an administrator, necessarily includes in it the adjudication of assets in the hands of that administrator to the amount of the judgment. According to the rigor of the common law, the judgment in that form would be absolutely conclusive against the defendant's administrator, and against the plaintiff and all others; and the only ulterior proceedings upon such judgment, if not satisfied upon an execution to be levied de bonis testatoris, would be against that administrator for a devastavit. (2 Lomax on Executors, 391, sec. 8, and 451, sec. 21.)

Virginia, and perhaps others of the States, has mollified, in some respects, the rigorous conclusion of this common law rule, but without destroying it. In its most mitigated application to such a recovery, the judgment will be at least taken, until the contrary is shown by that defendant, as a judgment that the administrator had assets for the satisfaction of the recovery. For this reason, as well as for other reasons, it is certain that we shall find no case in the English authorities where a judgment has been recovered against one administrator, in which any recovery has been sought against another administrator, unless in cases of an administrator de bonis non, or unless in cases of special administrations, such as administrator durante minore aetate, &c. And, for the same reason, it is probable that no such cases can be found in any of the American authorities, even where the rules alluded to have been mitigaged. It will be found extremely difficult, within the jurisdiction where administration was granted, to conceive any case of that kind. The judgment, then, upon which the petitioner founds his recovery against the administrator in Louisiana, shows upon its face that assets for its satisfaction, in the State of Mississippi, were also adjudged. The very judgment, by showing that matter, an adjudged liability of a sufficiency of estate in Mississippi, shows an exoneration of assets elsewhere than in Mississippi, and that the Louisiana administrator ought not to be charged, by a double recovery, for that which has been already or can be recovered against another representative in Mississippi.

There is also another remark that may be made upon the proceedings in this case,–that the decision, if sustained, must lead to alarming mischiefs in the administration of assets which an intestate has left in two or more States. It seems, from the amended petition, that C. S. Lee, at the time of his death, was a citizen of Louisiana; that was his domicile, and consequently Ann Lee, in Mississippi, was a foreign administratrix. The bulk of an intestate's assets will almost always be found in the jurisdiction of his domicile. The proposition which is contended for to sustain this recovery goes to this extent,–that if an intestate in one State had died, leaving property of the most inconsiderable value in another State, making it necessary that there should be an administration in the latter, a plaintiff, by recovering a judgment against the latter, establishing a debt of the intestate, that judgment, as contended for by the defendant in error, would be conclusive upon the administrator and the assets, in the State of the domicile, at least so far as it established the indebtedness of the intestate. In vain might the domiciliary administrator attempt, in an action brought against him upon that judgment, to prove that the plaintiff had no shadow of claim against the intestate; he would be repelled, by force of the judgment, from any such defence.

Is it reasonable, that, in the international law of these States under the Constitution and acts of Congress, such ruinous stringency should be given to the judgment of one State in the courts of another?–that a judgment against the foreign administrator, who is regarded only as auxiliary or ancillary to the domiciliary administration, and who is in practice oftentimes, in some of the States, little more than a nominal administrator, shall conclude the primary domiciliary administrator, holding the main bulk of the assets, by establishing against him and against those assets the principal fact in the case, the indebtedness of the intestate, so that they can never be extricated from this rigid conclusiveness of the foreign judgment?There is a further remark, that the petitioner seeks a recovery upon the Mississippi judgment against 'a considerable estate, real and personal,' left by the intestate in the State of Louisiana; estates of both descriptions, it would seem, are liable as assets in the hands, or under the control, of the administrator in that State. There is no principle in general jurisprudence, and particularly in the United States, better established, than that land can never be subjected to a foreign jurisdiction. (Story's Confl. of Laws, pages 436, 437, §§ 522, 523.)

To give to the judgments of one State validity and effect in the courts of another, is a wise provision under our system of government. It cannot, however, be overlooked, that to whatever extent force is allowed to them, out of the State which pronounced them, in the jurisdiction of another State, it operates as a restriction or compulsion upon this jurisdiction, making it subordinate to the jurisdiction of a foreign forum. The provision, therefore, which has been alluded to should be jealously guarded by the courts; and unless its application should be shown to be clearly reasonable, the application should be denied. It has before been intimated, that no authority can be found, certainly not in the English law, probably not in the American law, which can govern the precise case now under consideration.

It is not pretended that the administrator in Louisiana was a party to the proceedings in Mississippi, or could by any possible means have made himself a party to them. It is incumbent upon the defendant in error clearly to show, before the jurisdiction in Mississippi shall control that of Louisiana, that the administrator of the latter State was, in the proceedings in which judgment was recovered in the former, in privity with the defendant in that suit. The contrary has been distinctly laid down by Justice Story, in his learned treatise on the Conflict of Laws, § 522. That is a direct authority upon the present case. It makes no difference that the judgment in the cases in Rawle, 431, to which he refers, was a judgment rendered in Barbadoes. The matter under consideration involves no discussion, as to the difference between the effect of a judgment when rendered in a State jurisdiction, and when rendered in a jurisdiction out of the United States. The point decided there was, that there was no privity between one administrator and another administrator of the same intestate, when both administrations have been granted by different jurisdictions entirely separate and independent of each other.

The jurisdiction of each State of this Union is sovereign and independent in granting letters of administration, as much so as that of any two foreign states. The grant, when made, invests the administrator under the authority of that State with the proprietorship of the effects of the intestate within that State, but, having no jurisdiction beyond its own limits, it can confer no parperty upon him out of those limits.

Each administrator, when several administrations are granted in several States, is made the owner of a distinct property, wholly unconnected with any other out of the State. The authority under which each derives his title is a separate sovereign power; and it is exclusively by that authority, not by virtue of testamentary appointment of the dead, that they are invested with any interest or control in the respective estates; and it is entirely to the authority from which their rights are alone derived that they are in any manner accountable. In some sense they may severally be said to be a representative of the deceased.

There would be no ground for asserting that these representatives in different States constitute one representative, as several executors under the same will, or administrators under the same jurisdiction, may constitute one executor or administrator, though the assets confided to each may be separated.

It is believed that this doctrine, here attempted to be presented, of the relation in which the separate administrators under different jurisdictions stand in these United States, has been universally recognized by the States except so far as by statutory law (showing that the original principle was as here stated) the doctrine has been changed or modified. It would seem necessarily so, not only as regards the relation of the administrator, but as regards the rights of the executor as affecting the assets and the representative of the deceased, for he has no lien upon the fund in the hands of the representative as the debtor, but the person of the administrator, who is, in a measure, the officer or bailiff of the court appointing him, in respect of the assets which he has in his hands, is the debtor. (1 Lomax on Executors, 345; Ram. on Ass. 484.) What constitutes privity between one representative of a dead man and another representative depends upon no peculiar rules springing out of a practice of the probate court, in regard to the representatives of deceased persons, but is to be ascertained upon principles of the common law, as applicable to cases generally, of which a variety of illustrations will be found in the books, especially 1 Stark. Law Ev. 217, et seq. Privity between one administrator and another does not depend upon, and cannot be created by, their being each of them the representative of the same intestate, though it be a duty in which they all unite. It has not been so regarded in the English law, which, until the 17th Car. 2, did not regard the administrator de bonis non in privity with an executor or administrator, to bring scire facias on the judgment which the executor, or administrator, had obtained. (See authorities, 1 Lom. Ex. 325.) So, if one brings several ejectments against several upon the same title, a verdict against one is not evidence against the rest, because the party against whom the verdict was had might be relieved against it, if it was not good, but the rest could not (1 Stark. Law Ev. 217); as the title under which all these defendants in ejectment claimed is the same, each of them, of course, must have held in privity to some one person, from whom all their titles were severally derived; nevertheless, that privity in one common title did not unite them in privity to each other.

The judgment, therefore, in Mississippi, against Ann Lee, administratrix of the assets of Charles S. Lee in Mississippi, could not bind the appellant, D. S. Stacy, administrator of the assets of C. S. Lee in Louisiana.

The rule excluding res inter alios acta as a ground of action, or as a bar in the pleadings, it is hardly necessary to remark, entends with equal stringency to exclude such matter as evidence at the trial. (1 Stark. Law Ev. 217; and 1 Greenl. Ev. § 522, et seq.)

The principle here contended for cannot be evaded by force of the statute of Mississippi, which seems, as is contended for, to make the judgment recovered in Mississippi against Ann Lee, administratrix, have the effect of being a judgment recovered against Charles S. Lee, the intestate himself, because that suit was instituted against him in his lifetime. That statute enables the plaintiff to revive the suit pending against the intestate, and empowers the court to render judgment for or against such administrator, in the same manner as if the original party were in existence. (How. & Hutch. Dig. 584.) This statute can mean nothing more than in the strongest expressions to remove merely the impediment thrown in the way of the proceedings of the plaintiff by abatement. It did not mean, by strict adherence to the same manner as if the original party were in existence, to preclude the administratrix from pleading pleas peculiarly allowed to executors and administrators,–such as plene administravit, generally or specially, no assets, and the like; or to preclude the plaintiff from taking a judgment against the administratrix; and if so, the judgment could not be in the same manner as if the ...

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