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by sample-the cotton delivered not being equal in quality with the sample. The plaintiff's counsel contended that the delivery of samples not corresponding with the bulk was a false representation of the quality of the cotton, which must be considered in point of law as fraudulent, as being the statement of a fact which the party making it did not know to be true. The judge directed the jury that unless they could see grounds for inferring that the defendants or their brokers were acquainted with the fraud that had been practiced in the packing, or had acted in the transaction against good faith or with a fraudulent purpose, the defendants were entitled to a verdict. On error the Court of Exchequer Chamber sustained the charge of the judge. Tindal, C. J., delivering the opinion of the court, said that "the rule to be deduced from all the cases appears to us to be that where upon the sale of goods, the purchaser is satisfied without requiring a warranty, he cannot recover upon a mere representation of the quality, * * * unless he can show that the representation was bottomed in fraud. If indeed the representation was false to the knowledge of the party making it, this would in general be conclusive evidence of fraud; but if the representation was honestly made, and believed at the time to be true by the party making it, though not true in point of fact, we think it does not amount to fraud in law." English courts have considered these decisions as a finality, and it is now there settled that there can be no fraud without dishonest intention-no such fraud as was formerly termed legal fraud. 1 Benj. on Sales (Corbin's ed.), § 638.

The

The American cases, as might be expected of a subject so prolific of decisions, are not altogether harmonious. Mr.Pomeroy, speaking of the cases I have cited from the Queen's Bench as holding that a representation, false in fact, if acted upon, would support an action, and that the defendant's liability was independent of his knowledge or ignorance of its actual falsity, says: "This theory admitted the possibility of fraud at law where there was no moral delinquency. It denied that moral wrong was an essential element in the legal conception of fraud. The same view was for a time accepted and adopted by a considerable number of decisions in different American States. These cases have however been overruled, and the theory itself abandoned in England, and generally, if not universally, throughout the States of our own country. It is now a settled doctrine of the law that there can be no fraud, misrepresentation or concealment without some moral delinquency. There is no actual legal fraud which is not also a moral fraud." 2 Pom. Eq., § 884. The English and American cases are fully cited in the notes to Paisley v. Freeman, 2 Sm. Lead. Cas. 176-186. They have placed the law on this subject where it was put by Paisley v. Freeman and Haycraft v. Creasy,and have, I think, upon principle as well as by the great weight of authority, established the law on the rational basis that in the action for deceit, moral fraud is essential to furnish a ground of action.

The principle on which the action for deceit is founded being ascertained, the next consideration is with respect to the proof and the proper instructions upon the evidence; for whatever the character of the evidence may be-whether it consists of knowledge of the falsity of the representation or some other fraudulent device intended for the purpose of deceptionthe evidence must be submitted to the jury under proper instructions. And I think much of the apparent conflict in the cases has arisen from the failure to discriminate between the issue to be proved and the force and effect of the evidence presented.

The simplest form in which the question of the sufficiency of proof arises is where the proof is that the

representation was false to the defendant's knowledge. The scienter as well as the falsehood being proved, proof of the fraudulent intent is regarded as conclusive. Evidence that the defendant intended no fraud will not be received, and the jury will be instructed to find for the plaintiff, though they should be of opinion that the defendant was not instigated by a corrupt motive of gain for himself, or by a malicious motive of injury to the plaintiff. Foster v. Charles, 6 Bing. 396; S. C., 7 id. 105; Polhill v. Walter, 3 B. & Ad. 114; and Mylne v. Marwood, 15 C. B. 778, are cases of this kind. In each of these cases the proof was that the representation was false to the knowledge of the defendant. The jury added to its finding an expression of opinion that there was no fraudulent intent, but the court nevertheless entered judgment for the plaintiff on the ground that a willful falsehood was a fraud. The language of Lord Campbell in Wilde v. Gibson, 1 H. of L. Cas. 605, 633, was directed to cases of this aspect; and Jessel, M. R., in a case where it was proved that the representation was untrue to the defendant's knowledge, refused to receive evidence that he in fact believed it to be true. Hine v. Campion, L. R., 7 Ch. Div. 344; 23 Eng. Rep. 629.

In other cases of actionable frauds, the probative force and effect of the evidence to establish the fraudulent intent will depend upon the circumstances of the particular case. This question is presented in a complex form where the defendant has added to a representation-which turns out to be untrue, but was not false to his knowledge-an affirmation that he made the representation as of his own knowledge. In such cases the force and effect of the evidence will depend, in a great measure, upon the nature of the subject concerning which the representation was made. If it be with respect to a specific fact or facts susceptible of exact knowledge, and the subject-matter be such as that the affirmation of knowledge is to be taken in its strict sense, and not merely as a strong expression of belief, the falsehood in such a representation lies in the defendant's affirmation that he had the requisite knowledge to vouch for the truth of his assertions, and that being untrue, the falsehood would be willful and therefore fraudulent. But where the representation is concerning a condition of affairs not susceptible of exact knowledge, such as representations with respect to the credit and solvency of a third person, or the condition or credit of a financial institution, the assertion of knowledge, as was held in Haycraft v Creasy, "is to be taken secundum subjectam materiam, as meaning no other than a strong belief founded upon what appeared to the defendant to be reasonable and certain grounds." In such a case the question is wholly one of good faith. The form of the affirmation will cast the burden of proof on the defendant, but when the evidence is in, the issue is whether the defendant honestly believed the representation to be true. In support of such an issue the defendant may, by way of exculpation, resort to evidence not admissible in actions for other kinds of deceit. He may, as in Haycraft v. Creasy, give evidence that the person whose ability he affirmed lived in a style, and with such appearances of property and means, as gave assurances of affluence. He may give in evidence the information he had upon the subject (Shrewsbury v. Blount, 2 M. & G. 475), and show the general reputation for trustworthiness of the person whose credit he affirmed. Sheen v. Bumpsted, 2 H. & C. 193. In fine, he may avail himself of any evidence which may tend to show good faith or probable grounds for his belief, leaving the question to be determined, upon all the evidence, whether his conduct was bona fide-whether at the time he made the representation, he honestly believed that his representation was true.

The Massachusetts cases cited to support the instruction certified to the court admit the distinction I have referred to.

In Tryon v. Whitmarsh, 1 Metc. 1; 35 Am. Dec. 339, which was an action for false and fraudulent representations as to the credit of third persons, whereby the plaintiffs were induced to give them credit, a verdict for the plaintiffs was set aside for the reason that the judge should have instructed the jury that the defendant would not be liable if they were of opinion, from the evidence, that he gave an honest opinion, and believed that the persons recommended were trustworthy.

In Hazard v. Irwin, 18 Pick. 96, the false representation was by a vendor, on the sale of an engine, with respect to its condition. He made the representation as of his own knowledge. The condition of the engine was a fact the vendor could easily have ascertained. The court (Shaw, C. J.), cited Haycraft v. Creasy, and distinguished it from the case in hand in that the subject-matter of the representation was one of fact in respect to which a person can have precise and accurate knowledge, aud in respect to which, if he speaks of his own knowledge, aud has no such knowledge, his affirmation is essentially false."

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In Page v. Bent, 2 Metc. 371, the false representation was in relation to the nature and amount of the assets assigned by the defendants. The condition and amount of the assets were peculiarly within the knowledge of the defendants. The court (Shaw, C. J.), said: "The principle is well settled that if a person make a representation of a fact as of his own knowledge, in relation to a subject-matter susceptible of knowledge, and such representation is untrue, * ** it is a fraud and deceit for which the party making it is responsible. * * But in a matter of opinion, judgment or estimate, if he states a thing of his own knowledge, if he in fact believes it, and it is not intended to deceive, it is not a fraud, although the matter misstated is not true. The reason is that it is apparent from the subject-matter that what is thus stated as knowledge must be considered and understood by the party to whom it is addressed as an expression of strong belief only, because it is a subject of which knowledge, in its strict sense, cannot be had."

**

*

In Stone v. Denny, 4 Metc. 151, the action was on a false representation on a sale of property made by the defendant, on a schedule exhibited which he represented as correct of his own knowledge. Dewey, J., in his opinion, referred to the Massachusetts cases and said: "From an examination of those cases and others bearing upon the question, I apprehend however that it will be found that no real change has been sanctioned in the great and leading principles of law applicable to cases of deceit, and that now, as formerly, to charge a party in damages for a false representation, * * it must appear that it was made with a fraudulent intent, or was a willful falsehood." The illustration he gives is "of one asserting as of his own knowledge a matter of which he has no knowledge, nor any sufficient ground for making the assertion." The subsequent observation of the learned judge, "that if one positively affirms a fact as of his own knowledge, and his affirmation is false, his representation is deemed fraudulent," is unobjectionable as applied to the facts of that case, where, because of the subject-matter of the representation, the affirmation of knowledge was to be taken in its strict sense, and not as only a strong expression of belief.

The principle adjudged in Haycraft v. Creasy is applicable to actions against directors for false and fraudulent representations concerning the financial condition of the institutions in their charge. It was so applied in Taylor v. Ashton, which has become a leading case in the English law. The affairs of such

an institution must necessarily be intrusted to executive officers and subordinate agents, and the directors generally cannot know, and have not the requisite ability to learn, by their own efforts, the exact condition of the affairs of the company, and it has been found that no vigilance on their part has been adequate to protect these institutions from frauds and peculations covered up and concealed by false entries and false reports. A representation by a director that the institution is in a sound and solvent condition within his own knowledge possesses the legal characteristics of the like representation as to the credit and financial ability of a third person, such as was before the court in Haycraft v. Creasy, and it must be subject to the same legal rule.

The facts on which this case was founded were these: The plaintiff was a depositor in the bank. About the first of August, 1878, there was a rumor in circulation affecting the condition of the bank. The defendant was one of the directors of the bank, and a member of the finance committee. The plaintiff having heard the rumor, went to the defendant and told him of the rumor in circulation, and that he was a depositor and did not want to lose his money, and proposed to take it out. The defendant said: "It can't be so, unknown to me and Mr. Monks. We are on the finance committee. There can be nothing wrong with that bank unknown to me and Mr. Monks. Don't believe any of these false reports; believe me; take my word for it. The bank is good, paying six per centthe best in the State. If all that is in Jersey tells you the bank is bad, don't believe it till I tell you.' Не also said "there was a surplus of over $6,000 after the dividends were paid." The bank continued to pay all demauds down to November 1, 1878, when it went into the hands of a receiver. It was insolvent on the 1st of August, 1878, when these representations were alleged to have been made.

The defendant was a director of the bank from Juue 8, 1869, until its suspension in November, 1878, and a member of the finance committee from November 19, 1877. The duties of the finance committee were to attend to all applications for loans, and to look after the investing of the company's funds. The general charge and government of the bank devolved upon the executive committee, of which the defendant was not a member. There was no evidence that the defendant had actual knowledge of the condition of the bank. On the contrary, the proof was that at a regular meeting of the directors, on the 31st of May, 1877, the presi dent read his statements, showing a surplus of $6,000, and a motion was adopted declaring a dividend of six per cent. The next regular meeting was on the 19th of November, 1877. It appears by the minutes that a statement of the assets and liabilities was read in de tail, and a dividend of six per cent per annum was declared for the six months ending October 31, 1877. On May 30, 1878, another meeting of directors was held, at which the minutes of the last meeting were read and approved, and a dividend at the rate of six per cent for the six months ending April, 1878, was declared. All these dividends were credited, and were paid to such of the depositors as presented their books. The defendant was present at each of these meetings of the directors.

On these facts the defendant was not entitled to the nonsuit he asked for; but he was entitled to a different instruction to the jury. The case cannot be distinguished from Haycraft v. Creasy and Taylor v Ashton, and it should have been left to the jury to say whether, upon the evidence, the defendant made the representations with a fraudulent purpose to deceive, or whether he made them in good faith and in the houest belief that they were true.

There will be a certificate accordingly.

[See 23 Eng. Rep. 395; 9 Daly, 308; 31 Hun, 192.]

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

NATIONAL BANK-USURY FEDERAL AND STATE STATUTE.-Where a promissory note is discounted by a National bank in New York, the New York statute forfeiting the entire debt is not applicable to the transaction. The Federal act supersedes the State law, inposing penalties for usury, in so far as they pertain to National banks. This is res adjudicata in the Supreme Court of the United States. In Farmers' National Bank v. Dearing, 91 U. S. 29, Mr. Justice Swayne delivered the opinion of the court, overruling First National Bank v. Lamb, 50 N. Y. 95, and denying the efficacy of the State law to work the forfeiture of the debt. Importers, etc., National Bank v. Littell. Opinion by Van Syckel, J.

Water Co. v. Coster, reported in 3 C. E. Green, 518, seems to me to dispose of this question. The opinion of Chancellor Walworth, in 3 Paige, 73 (Beekman v. Saratoga, etc., R. Co.), which is quoted by the chief justice in the Tide Water case, is to the effect that if the public interest can be promoted by the taking of private property, it rests with the Legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient to authorize an interference with the private rights of individuals for that purpose, and the exercise of the right of eminent domain. "Upon this principle of public benefit," says Chancellor Walworth, "not only the agents of the government, but also individuals and corporate bodies have been authorized to take private property for the purpose of making public highways, turnpike roads and canals, establishing ferries, draining swamps and marshes, and of bringing water to cities aud villages." In remarking upon the above language of Chancellor Walworth, the chief justice in the Tide Water case says it embodies the correct principle, and that "that the legislative power is not competent to take the property of A.. and transfer it to B., simply for the benefit or convenience of B., because such an act has no public aspect.' "But if the sequestration of the property of A. will to a material extent be serviceable to the public at large, whether such sequestration shall take place must be committed as a pure matter of discretion to the Legislature, provided such discretion be exercised in good faith." Olmstead v. Proprietors of the Morris Aqueduct. Opinion by Parker, J.

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COVENANT AGAINST INCUMBRANCES-DAMAGES.--
(1) A street was opened and land was assessed for ben-
efits. Held, that the existence of the liability to be
assessed was a breach of the covenant against incum-
brances contained in a deed for said land executed be-
tween the time of opening the street and making the
assessment. This question has received the considera-
tion of the Supreme Court of Massachusetts in the case
of Blackie v. Hudson, 117 Mass. 181. In that case it
was held that a covenant against incumbrances was
broken by the existence of a liability to an assessment
for wideuing the street, although the assessment there.
for was made subsequently to the execution of the
deed. In the subsequent case of Carr v. Dooley, 119
Mass. 294, the same principle was adopted in regard to
a liability for an assessment for building a sewer.
There is nothing in the statutes under which the im- JURISDICTION-LOCAL COURT-CONSENT WILL CON-
provements 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 Dis-
tion. 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 improve- raising the objection the juristiction of the court will
meut. Here it is necessary only to hold that the lia-be complete. Sometimes the law under which a tribu-
bility exists from the time of the execution of the
work which constitutes the improvement. It is not
intended to criticise or adopt the Massachusetts rule,
which has the merit of certainty as to the time when
the lien becomes fixed, but it is apparent that the cor-
rectness of the doctrine that the incumbrance pre-
cedes the assessment strikes the judgment more forci-
bly after the work has been done and the benefit has
actually accrued for which the assessment has been
made. To this extent only is it essential to go to hold
that this plaintiff is not only entitled to recover, but
to recover substantial damages. This result is in ac-
cordance with the views of the chancellor in the case
of White v. Stretch, 7 C. E. Green, 76, a similar case to
this. (2) The measure of damages in action for a
breach of the covenant against incumbrances differs
in three classes of cases. First, where the incum-
brance is a debt which has been paid by the cove-
nautee; second, where it might have been, but has not
been so paid; and third, where the incumbrance is such
that it cannot be discharged, as a servitude or unma
tured mortgage. In the first class of cases the cove.
nantee recovers what he has paid; in the second class
he recovers nominal damages only, and in the third
class he recovers au amount estimated as a compensa-
tion for the depreciated value of the land resulting
from the existence of the incumbrance. Sedg. Dam.
179. The present case is within the first class. Fagan
v. Cadmus. Opinion by Reed, J. [(2) See 26 Am.
Rep. 135.]

CONSTITUTIONAL LAW-PUBLIC PURPOSES-PRIVATE PROPERTY.-The supplying of a city or town with water is a public purpose. The opinion of the Court *Appearing in 46 N. J. L. Reports.

nal is organized confers jurisdiction on such terms that the status of parties is evidently designed to constitute one of the legal bases of authority. Thus, in the grant of judicial power to the government of the United States, the citizenship of parties is made a condition of jurisdiction. U. S. Const., art. 3, § 2. In actions brought in the Federal courts under this grant the essential fact of citizenship must be averred upon the record, or the courts cannot lawfully proceed. M. C. & L. M. Railway Co. v. Swan, 111 U. S. 379. So in the creation of certain strictly local courts within the State of New York the jurisdiction was expressly limited to cases in which the cause of action arose within a designated territory, or the subject of the action is situated, or the defendant resided or was served with process within that territory. Thereupon it was held that some one of these elements of locality must exist to confer upon the court jurisdiction of the cause, and that to extend the jurisdiction to causes not thus localized would strip the courts of the local character with which the Legislature had clothed them. Wheelock v. Lee, 74 N. Y. 495; Davidsburgh v. Insurance Co., 90 id. 526. In such instances as these the status of the litigants is ranked with the subject-matters in controversy as donating a class of causes to which the jurisdiction is confined, because of the precise terms in which the limited jurisdiction is granted. But in our act constituting District Courts, jurisdiction over causes does not seem to be made dependent upon the status of litigants. No restrictive terms so confining it appear. Every suit of a civil nature at law, involv ing not more than a designated sum, and except certain specified causes of action, is made cognizable in these courts. The boundaries of jurisdiction are thus 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 graut, but possesses merely a 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 privilege, 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. Funck v. Smith. Opinion by Dixon, J.

NEW JERSEY COURT OF CHANCERY ABSTRACT.*

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 held 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, and 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. C. [See 30 Alb. L. J. 238.]

MARRIAGE-DIVORCE--PRESUMPTION OF ADULTERY REBUTTAL MAY SHOW DECOYING DUTY OF HUSBAND.-(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 Hagg. Con. 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. Eng. Ec. 303 (1 Hagg. Ec. 714), 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 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 wife before marriage, and *To appear in 39 N. J. Eq. Reports.

not

after marriage sees her in a situation of temptation, and does nothing to rescue her, and she yields, will be understood as having consented to her adultery. Chancellor Zabriskie declared in Hedden v. Hedden, 6 C. E. Greeu, 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 her before marriage whereby he is put upon his guard respecting her weakness, 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 no 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. In 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.

LIEU-FAILURE TO

debts be paid, and

WILL-DOWER-PROVISION IN DISSENT.-After directing that his 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, 2 Harr. 459; Chiswell v. Morris, 1 McCart. 101. Osmun v. Porter. Opinion by Chancellor.

MICHIGAN SUPREME COURT ABSTRACT.

CONTRACT-NOVATION

CONSIDERATION -STATUTE OF FRAUDS.-W. was indebted to plaintiffs, and defendants were indebted to W. By W.'s request de. fendants promised to pay the amount which they owed W. to plaintiffs instead of to him, and plaintiffs relinquished their claim in consideration of such promise, and defendant charged the amount to it on its own books. Held, that the transaction rested upon a sufficient consideration, and that plaintiffs were entitled Cont., § 853. The statute of frauds has no application to recover the amount from defendants. 2 Whart. to a case like the present. Bird v. Gammon, 3 Bing. (N. C.) 883; Dearborn v. Parks, 5 Greenl. 81; Rowe v. Whittier, 21 Me. 545; Pike v. Brown, 7 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 v. Benton, 35 Conn. 343; Fairlie v. Denton, 8 Barn. & C. 395; Wilson 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

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tained by them and constituted a fund in defendant's hands with which to pay plaintiffs, and in such case the defendant wonld be liable under the count for money had and received. Moreover the amount to be paid by defendant under the agreement was a sum certain, and it is elementary law that when a sum certain is due on a simple contract, indebitatus assumpsit will lie to recover it. Packer v. Benton, 35 Conn. 343. Mulesone v. American Lumber Co. Opinion by Champlin, J.

[Decided Jan. 14, 1885.]

to personal property in one country under a title from the person domiciled in another can only be asserted by the instrumentalities which the institutions of the country where the claim is made have provided. The foreign law furnishes the rule of decision as to the validity of the title to the thing claimed; but in respect to the legal assertion of that title it has no extraterritorial force. As a result of this doctrine it is now generally held everywhere, and is well settled in this State, that an executor or administrator appointed in another State has not, as such, any authority beyond the sovereignty by virtue of whose Jaws he was appointed. Denio, J., in Parsons v. Lyman, 20 N. Y., 103, 112; citing Morrell v. Dickey, 1 Johns. Ch. 152; Vroom v. Van Horne, 10 Paige, 549. The same general doctrine is also concisely stated in a case in the Federal Supreme Court: "A grant of administration is strictly confiued in its authority and operation to the limits of the territory of the government which grants it, and does not de jure extend to other countries. It cannot confer, as a matter of right, any authority to collect assets of the deceased in any other State, and whatever operation is allowed to it beyond the origiual territory of the grant is a mere matter of comity, which every nation is at liberty to yield or withhold, according to its own policy and pleasure, with reference to its own institutions and the interests of its citizens." Story, J., in Vaughan v. Northup, 15 Pet. 2, 5. L. then, if legally administrator in Missouri, had no official authority in this State except such as by comity would be recognized; and the rules of comity might be determined either by usage, of which the judicial decisions would be evidence, or by statute. Some of these rules are general, and are well settled. There are cases, for example, where it has been held that a foreign administrator has a right to collect and take possession of administration (Doolittle v. Lewis, 7 Johns. Ch. 45; Brown v. Brown, 1 Barb. Ch. 189; Vroom v. Van Horne, 10 Paige, 549; S. C., 42 Am. Dec. 94; Riley v. Riley, 3 Day, 74; S. C., 3 Am. Dec. 260; Smith v. Gould, 34 Me. 443; Rand v. Hubbard, 4 Metc. 252; Marcy v. Marcy, 32 Conn. 308), and where there are no domestic creditors or other claimants, there will be no occasion to question such cases. There may also be cases of payments to a foreign administrator which may be recognized, there being no conflicting administration. Williams v. Storrs, 6 Johns. Ch. 353; Trecothick v. Austin, 4 Mason, 16, 33; Wilkins v. Ellett, 9 Wall. 740; Vroom v. Van Horne, supra; Citizens' Bank v. Sharp, 53 Md. 521. And where an administrator in the forum of his appointment has assigned demands bona notabilia there, it may be correct to hold that his assiguee may sue thereon here in his own name; as was held in Harper v. Butler, 2 Pet. 239, and Petersen v. Chemical Bank, 32 N. Y. 21, and cases cited; as to which see Knapp v. Lee, 42 Mich. 41; S. C., 3 N. W. Rep. 244. But this case involves the validity of the assignment of a debt secured by real-estate mortgage on lands in this State. It was decided in Cutter v. Davenport, 1 Pick. 81, that the foreign administrator had no authority to make such an assignment; and this is followed in the recent case of Dial v. Gary, 14 S. C. 573; S. C., 37 Am. Rep. 737. Whether these decisions would be followed in this State if there were no statute bearing upon the question, we do not care to inquire, because we think if the power to assign would exist independent of statute, it does not exist under the statutes now in force. The statutes provide for recognizing the authority of a foreign administrator when it becomes necessary to make sale of lands in this State, and prescribes the steps to be taken for that purpose. How. St., §§ 6057-6061. If administration is needed in this State for other purposes, new letters must be taken out; and an administration ancillary to one in another State would proceed like any

EXECUTOR AND ADMINISTRATOR-FOREIGN-DOMIOILE-PERSONALTY GOVERNED BY LAW OF.--S., a bachelor, who had previously been a citizen of Michigan, went to St. Louis, Mo., where he engaged in business, aud on March 27, 1876, died intestate at the hotel where he boarded. He left heirs in New York, Minnesota and Michigan. He owned lands and claims, secured by mortgage, in Michigan, amounting to $50,000: one mortgage, executed by A. and wife, for $1,125 and interest, being payable at St. Louis, Mo., or at any other place that S. might elect, in five years from date. L., as public administrator, claimed the right to administer on the estate in St. Louis, and notified by telegraph the heirs in Michigan of the death of S., and sent his body to them, as requested. R., a brother-inlaw of S., on May 29, 1876, took out letters of administration in Michigan, and called on L. for the property, which L. refused to deliver, insisting on his right to act as public administrator. In June, 1876, L. made public sale of the securities belonging to the estate for a mere nominal price, and F. became the purchaser of the A. mortgage, with knowledge of the appointment of R., and subsequently assigned the mortgage to B., who executed a discharge thereof on payment of $600. M. afterward bought the land. R. died in September, 1878, complainant was appointed as his successor, and a suit was instituted to foreclose the mortgage. Held (1), that although S. was at the time of his death domiciled in St. Louis, L. was not authorized by the Missouri statute to take charge of his estate as public administrator; and (2) that as public administrator he had no authority, after the appointment of R. as administrator, to sell and assign the mortgage in suit, and that the mortgage should be foreclosed. The general principle relied upon by defendants, that personal property, in contemplation of law, accompanies the person of the owner, and that its disposition on his death is to be determined by the laws of his domicile. But while the rule of distribution is thus determined, the steps to reach it may be otherwise prescribed; and when the property is in one jurisdiction and the domicile in another, the necessity for distinot proceedings in administration may be imperative. The proceedings, when taken in this class of cases, are governed and regulated by certain rules of interstate comity, which are thus stated by the Court of Appeals of New York: "It is an established doctriue, not only of international law, but of municipal law of this country, that personal property has no locality. It is subject to the law which governs the person of the owner, as well in respect to the disposition of it by act inter vivos as to its transmission by last will and testament, and by succession on the owner dying intestate. The principle no doubt has its foundation in international comity, but it is equally obligatory as a rule of decision in the courts as a legal rule of purely domestic origin. It does not belong to the judges to recognize or deny the rights which individuals may claim under it at their pleasure or caprice; but it having obtained the force of law by user and acquiescence, it belongs to the political government of the State to change it whenever a change becomes desirable. But the right which an individual may claim

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