had them hauled to his own place of business. He sent his check to the consignor for other goods purchased by him, without any reference to the goods so taken possession of by him. It was held by the supreme court of Pennsylvania that even if it was conceded that he had not ordered the goods in question, yet because he took possession of them from the railroad company, and had them hauled to his own place of business, and failed to notify the consignor of the mistake, he accepted the goods, and the instruction of the court below to find a verdict for the plaintiff for the full amount of the claim was sustained. It is objected to the action of the court below in directing a verdict, that the facts were not so clearly proven that the case should not have been left to the jury, upon proper instructions. It is said that there was evidence tending to show that the brewing company had advised Bullock & Co. as soon as they became aware of the mistake under which these car loads of rice had been received by them into their custody. The argument is based on the statement of Overbeck that the two cars from Bullock & Co. were taken into the company's house by mistake, and that of all this the company notified Bullock & Co. at once by letter, stating that the rice was stored at their expense, and that the company refused acceptance of same. Such a statement, of course, was not competent, without showing that the letter had been lost. All of the letters of either party were introduced in evidence. The correspondence is complete. There is no room in it for a letter between that of November 25th from the brewing company to Bullock & Co., and that of Bullock & Co.'s letter of January 2d to the brewing company. Overbeck's statement can only be explained on the theory that he had forgotten when the letter first advising Bullock & Co. of the mistaken receipt of the goods was written. This was not evidence sufficient to go to the jury, because it was neither competent, nor of any weight. Nor do we think that, under the circumstances of this case, the question of reasonable time was one for the jury. There was no excuse for any delay, after the brewing company learned of its mistaken action in regard to the rice, in notifying Bullock & Co. of it; and we have no hesitation, as a matter of law, in holding that 30 days' delay in the rejection of rice-a commodity fluctuating in its market price-was altogether unreasonable. Wiggins v. Burkham, 10 Wall. 127. The conclusions thus reached make it unnecessary for us to consider the other assignments of error. They are founded on the action of the court in the admission and rejection of evidence relating to the cancellation of the Burger contract. Whether the contract was in fact canceled or not could not, as the case turned out, affect the brewing company's liability, because its conduct in accepting the rice under the contract was a waiver of any cancellation, if it had taken place. Objection is made to the testimony as to the fluctuation of prices in rice. This was competent to make clear the obligation upon the brewing company of promptly notifying Bullock & Co. of the rejection of the rice. An examination of the whole record satisfies us that the judg ment must be affirmed. MAYSVILLE STREET RAILROAD & TRANSFER CO. v. MARVIN.1 (Circuit Court of Appeals, Sixth Circuit. October 2, 1893.) No. 80. 1. DEATH BY WRONGFUL ACT-WHO MAY SUE-FOREIGN ADMINISTRATORS. A statute giving foreign administrators a right to sue for the recovery of "debts due their decedents" (Gen. St. Ky. c. 39, art. 2, § 43) confers no capacity to sue for the wrongful death of such decedent, although such power has been given to domestic administrators. 2. SAME. An act giving the "personal representative" a right of action for the wrongful death of his decedent (Gen. St. Ky. c. 57, § 1) will not be construed to confer such right upon a foreign administrator, contrary to the common-law rule and the established policy of the state. Dennick v. Railroad Co., 103 U. S. 11, distinguished. 3. SAME-STATE AND FEDERAL COURTS. A foreign administrator cannot sue in a federal court for the wrongful death of his decedent when the state laws have given him no capacity to maintain such a suit in the state courts. In Error to the Circuit Court of the United States for the District of Kentucky. Reversed. Statement by LURTON, Circuit Judge: The deceased, Marion Wilson, was killed at Maysville, Ky., by being run over by a street car operated by one of the servants of the appellant company. He was a citizen and resident of the state of Ohio, in which state the appellee, Marvin, was appointed administrator. The appellant company is a Kentucky corporation, exclusively engaged in operating a street-car line in the city of Maysville. The Ohio administrator brought this suit in the United States circuit court for the district of Kentucky, at Covington. There was a demurrer to the petition, on the ground that an Ohio administrator could not maintain a suit in the courts of Kentucky. This demurrer was overruled. Thereupon issue was joined, and a trial had by jury, resulting in a verdict and judgment against the railroad company. A. M. J. Cochran, (Wadsworth & Son and W. H. Mackoy, of counsel,) for plaintiff in error. G. Bambach, L. W. Robertson, and Wm. M. Tugman, for defendant in error. Before BROWN, Circuit Justice, LURTON, Circuit Judge, and SWAN, District Judge. LURTON, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The vital question involved in this appeal is as to the capacity of an administrator appointed in one state to recover damages for the death of his intestate in the courts and under a statute of another state. The capacity conferred by letters of administration is limited to the state within which they are granted, and, in the absence of a statute giving effect to a foreign appointment, no suit can be maintained in the courts of another state by such an administrator. This is the well-settled rule of the common law. Schouler, Ex'rs, § 164, and authorities cited. 92 FEDERAL REPORTER, In Noonan v. Bradley, 9 Wall. 400, Mr. Justice Field says: "In the absence of any statute giving effect to the foreign appointment, all the authorities deny any efficiency to the appointment outside of the territorial jurisdiction of the state within which it was granted. All hold that, in the absence of such a statute, no suit can be maintained by an administrator in his official capacity, except within the limits of the state from which he derives his authority. If he desires to prosecute a suit in another state, he must first obtain a grant of administration therein in accordance with its laws." This rule is well recognized in the state of Kentucky, and the ground upon which it rests is well stated by Robertson, C. J., who, speaking for the court, said: "It is a well-settled doctrine that letters of administration granted by one nation or state can have no operation per se within the jurisdiction of another nation or state, and that, therefore, such authority, being local, can, de jure, vest no right of suit in any other country than that in which it was granted; for, as it is the duty of every government to secure to its own citizens a just participation in the distribution of the assets within its protection and control, belonging to every deceased debtor of any of those citizens, wherever he may have lived or died, it is an established rule of international law that assets shall be administered under authority of the local sovereign. And, consequently, as every administrator must also account to the proper tribunal of the country from which he derived all his authority, he is responsible to no foreign government for the administration of assets received under the authority, and cannot either sue or be sued in his representative character in a foreign state." Fletcher's Adm'r v. Sanders, 7 Dana, 348. The conditions and circumstances under which nonresident administrators of nonresident decedents may sue in the courts of Kentucky are found in sections 43 and 44 of article 2 of chapter 39 of the General Statutes of Kentucky, which chapter is entitled "ExThese sections are as follows, to ecutors and Administrators." wit: "Sec. 43. By giving bond with surety resident of the county in which action is brought, non-resident executors and administrators of persons, who at the time of their deaths were non-residents of the commonwealth, may prosecute actions for the recovery of debts due to such decedents. Sec. 44. In such actions the plaintiff's letters testamentary or of administration, granted by a proper tribunal properly authenticated must be filed; and no judgment shall be rendered until the plaintiff executes bond, with good surety resident of the county, to the commonwealth, conditioned to pay any debt due by his decedent to any resident of the state to the extent assets shall come to his hands. Actions may be brought on this bond for the use of any creditor of said decedent for three years after the date of such receipt of assets by such executor or administrator in the state, but not after." Foreign appointments are recognized, and authority given to such foreign administrators to sue in the instances named in the statute, and upon compliance with the conditions prescribed. To this extent, and to this extent only, do the statutes of Kentucky modify or alter the common law which limits the official character of an administrator to the state of his appointment. This statute, upon compliance with the provisions contained in section 44, empowers foreign executors and administrators to "prosecute actions for the recovery of debts due to such decedent." Now, this action is obviously not brought to recover a "debt" due to the decedent Wilson. A claim for a tort, not reduced to judg ment, has never been held to be a debt. The supreme court of Massachusetts, in Gray v. Bennett, 2 Metc. 526, in defining the legal meaning of the term "debt," said: "The word 'debt' is of large import, including not only debts of record or judgment and debts by specialty, but also obligations arising under simple contracts, to a very wide extent, and, in its popular sense, includes all that is due to a man under any form of obligation or promise." A claim arising out of the official neglect of a county court clerk was held not to be a "debt," within the meaning of the statute authorizing an attachment for "debt." Dunlop v. Keith, 1 Leigh, 430. A claim against a corporation for damages for the negligent loss of a steamboat was held not to be a "debt," within the meaning of an act making stockholders liable for all the "existing debts" of the corporation. Cable v. McCune, 26 Mo. 371. In Tribune Co. v. Reilly, 46 Mich. 459, 9 N. W. 492, it was held that a claim for damages sounding in tort is not a debt before it has been prosecuted to judgment. In Zimmer v. Schleehauf, 115 Mass. 52, it was held that a claim for damages for a tort does not become a debt by verdict before judgment; but if a claim for a tortious killing could be said to be a "debt," within the meaning of this statute, yet it was never a "debt due the decedent." The cause of action arose only upon the death of the decedent, and as a consequence of his death. It was not a right of action belonging to the decedent, and surviving to his administrator. The statute gives the right of action to the representative. It is not a preservation of a right of action, but the creation of a totally new right of action. Referring to the statute conferring this right of action, the su preme court of Kentucky, in Railroad Co. v. Case's Adm'r, 9 Bush, 728, said: "The right of action allowed by the first section is not identical with those growing out of personal injuries, and which, under the tenth chapter of Revised Statutes, survive to the personal representative." See, also, Railroad Co. v. Sanders, 86 Ky. 263, 5 S. W. 563, where the third section of the same act is construed as conferring a new and original right of action in the persons authorized to sue. It is clear, therefore, that this statute does not empower a foreign representative to sue in the courts of Kentucky for the death of his decedent. But counsel contend that, under the act authorizing a suit for the wrongful death of another, this suit may be instituted by a foreign, as well as by a domestic, administrator. This suit is instituted by virtue of the first section of chapter 57 of the General Statutes of Kentucky. It is as follows, to wit: "If the life of any person not in the employment of a railroad company shall be lost in this commonwealth by reason of the negligence or carelessness of the proprietor or proprietors of any railroads, or by the unfitness, or negligence, or carelessness of their servants or agents, the personal representative of the person whose life is so lost may institute suit and recover damages in the same manner that the person himself might have done for any injury where death did not ensue." FEDERAL REPORTER, vol. 59. The contention of counsel is that under this section the power is given to the "personal representative" of the decedent "to institute suit and recover damages in the same manner that the person himself might have done for any injury where death did not occur," and that no distinction is recognized between a domestic and foreign administrator. "personal representative" of the decedent, and the only personal The argument is that the appellee was the representative, and that, by the letter of the statute, he is authorized to sue. The policy underlying the rule which refuses recognition of letters of administration in a state other than that in which they were granted is founded upon the inconvenience of allowing assets to be taken from one state into another, until domestic creditors are satisfied. The recovery under the section authorizing this suit will be for the benefit of the general estate of the decedent. Creditors have an interest, and may reach the funds as a general asset of the estate. In this respect this statute differs widely from those of most of the states. statute, Pryor, J., said: Speaking of the recovery under this "The legislature intended to confine the right of recovery to the personal representative, and, as there is no direction as to the disposition of the fund recovered under that section, the personal representative would hold it like other assets left by the intestate." Givens v. Railway Co., 89 Ky. 234, 12 S. W. 257. The act relating to suits by foreign administrators carefully guards and protects the rights of domestic creditors. Is it to be presumed that, by the use of the general designation "personal representative," the legislature intended to so radically change the whole policy of the state as to permit this class of claims to be prosecuted by foreign administrators, without any protection to domestic creditors? conditioned as required by section 44 of chapter 39? What authority is there to require a bond none. If the suit is to be maintained at all, it must be by assuming We know of that the legislature intended to confer the right of suit equally upon domestic and foreign representatives of the deceased. suppose there are two administrations,-one foreign and the other But domestic; which is vested with the right under the construction contended for? The section now under consideration makes no reference to the act relating to the subject of suits by foreign administrators. The two acts, in so far as they relate to the same subject, should be construed together. forced one, and only arises by including a foreign personal repreBut this relation is a sentative within the general designation of "personal representative." Did the legislature intend to enlarge the powers of foreign representatives? We think not. which it was dealing. That was not the subject with The matter in hand was to create a right of action for the wrongful death of another. this action to a widow or next of kin. It might have given it only on the personal representative. It might have conferred for the exclusive benefit of the next of kin or widow, or both, or it The recovery might be might be made an asset for general administration. ing power chose, in its discretion, to confer this new right of action The lawmak |