Chapman v. Fish — 6 Hill & Den. 554

Majority

p. 554

Chapman, adm’r of Nathan Lester, vs. Denison Fish.

Headnote

An averment that a court of another state had power to revoke letters of administration granted in this, and did so revoke them, is one which the law pronounces false.

A foreign administrator cannot sue in the courts of this state ; nor can he interfere with a suit commenced here by a domestic administrator.

Simple contract debts are lona notabilia in the state where the debtor resides, and an administrator appointed in another state cannot release or control them.

Assumpsit, to recover the amount of a promissory note of which the following is a copy: “ For value received I promise to pay Nathan Lester or bearer, six months from date, the sum of four hundred and sixty-two dollars, with lawful interest. Albany, Sept. 1st, 1836. (Signed.) Denison -Fish.” The declaration made proferí of letters of administration to the plaintiff, granted by the surrogate of the county of Albany on the 7th of November, 1842. This suit was commenced shortly after the letters were granted. After issue joined, the defendant pleaded puis darrein continuance, at the circuit on the 27th of June, 1843, that the plaintiff ought not further to have or maintain the action, because he says, that at the April term of the orphans’ court of probate of Lowndes county, state of Mississippi, held in 1843, the said court, having jurisdiction &c., revoked the letters of administration issued to the plaintiff, and granted administration of the goods, chattels and credits of-the intestate to E. M. Fish; that the note in question was-

p. 555

Inventoried by E. M. Fish, and the inventory filed in the said orphans’ court of Lowndes county, as part of the assets of the intestate; and that on the 27th of June, 1843, the said E. M. Fish, by a writing under his hand and seal, for the consideration of one dollar, discontinued this suit, and released the defendant from all liability to the estate or the representatives of the estate of the intestate on the note &c. Demurrer and joinder.

M. T. Reynolds, for the plaintiff.

N Hill Jun., for the defendant.

The orphans’ court of the state of Mississippi had no power to revoke the letters of administration which had been granted to the plaintiff in this state, and the averment in the plea that the foreign court had jurisdiction to do such an act must go for nothing. It is an averment which the law pronounces false. And although administration may have been duly granted to E. M. Fish in Mississippi, he could not sue in the courts of this state; nor could he discontinue, or in any way control the suit which had been commenced by the plaintiff.

The only remaining question is on the release of the cause of action by the foreign administrator. The note purports to have been made in this state, and here the defendant was sued upon it several months before administration was granted in Mississippi. We must presume, until the contrary appears, that the defendant resides in this state, and that the note came duly to the plaintiff’s hands as administrator. It does not appear where the intestate died; but though it may have been in Mississippi, this simple contract debt would be bona notabilia in . this state, where the debtor lives; and the release by the foreign administrator cannot affect the plaintiff’s right to recover the money. (Thompson v. Wilson, 2 N. Hamp. R. 291; Vaughn v. Barret, 3 Verm. R. 333 ; Cowen & Hill's Notes to Phill. Ev. 870—5.) The fact that the foreign administrator made an

p. 556

inventory of the note in Mississippi is of no importance until it appears that the debt was bona notabilia in that state, and there is no averment to that effect in the plea.

Judgment for plaintiff.