
    LANDER vs. SMITH.
    
      Sixth District Court for Sacramento Co.,
    
    
      November, 1857.
    Foreign Administrator—Power Over Domestic Assets.
    The capacity of a foreign administrator to maintain an action for debts due the estate of the foreign intestate, depends' upon the locality of these assets, as domestic or otherwise.
    A foreign administrator cannot maintain an action for domestic assets, because policy demands that domestic assets be administered at home for the benefit of domestic creditors. The fact that the demand is based upon a foreign judgment, obtained by the administrator after the death of the intestate, does not affect this incapacity.
    Under the statute of this State requiring an action to be brought in the name of the real party in interest, for a foreign administrator to bring an action in his own name, and then prove by such a judgment, a debt due the estate of another would he a fatal variance.
    The conventional distinction formerly taken between the localities of assets, depending upon whether these are debts upon simple contract or are judgments, cannot now be upheld, since these are not regarded as debts of different degrees, but different degrees of evidences of debt.
    A domestic administrator can maintain an action upon a foreign judgment.
    On demurrer to the complaint.
    -—■—, for plaintiff.
    
      Latham $ Sunderland, for defendant.
   Botts, J.

The plaintiff, describing Mmself as a resident of the state of Kentucky, and administrator of Elizabeth Dunnington, deceased, declares upon a judgment obtained by Mm as sneh administrator against the defendant, in the state of Kentucky, on the 16th day ®£ May, 1856. To tMs complaint the defendant demurs, upon the ground that the plaintiff has no right to administer the assets for which he is suing. This is the effect of the demurrer, although the defendant expresses Ms objection by saying that the plaintiff has no capacity to sue.

I have been a good deal embarrassed by the question raised on this demurrer, and the more that I have not had the Ml advantage of the well known ability of the counsel on either side.

The counsel for the plaintiff admits that generally a foreign administrator cannot maintain an action for domestic assets; but he claims as an exception to this rule, all that class of demands resulting from promises made to- or judgments obtained by the administrator subsequent to the death of the intestate; and to maintain Ms position he cites the case of Talmage vs Chapel, 16 Mass. The case is identical with the one at bar, and if the doctrine there established be law. the demurrer must be overruled. But I am not satisfied with this case, and if the principle contended for, is correct, I am certain that it does not rest either upon the basis upon which it is placed by the Massachur setts court, or by the plaintiff’s counsel.

A foreign administrator cannot sue a domestic defendant, not in consequence of any want of capacity to sue, nor because the domestic courts refuse to recognise Ms official character; but because the policy of every country demands that domestic assets be administered at home, that they may be appropriated to domestic creditors. The doctrine on this subject originated" with the spiritual courts of Great Britain. To the bishop of each diocese belonged the power of probate, and administration; but if the intestate died with bona notabüia in two different dioceses of the same province, then was the administration sought from the metropolitan, "which would cover all the dioceses of the province. Now, it will be remembered that all England is divided into the two provinces of York and Canterbury; how if one should die with goods or assets in both provinces ? Then would there be a struggle for the administration between two separate supreme jurisdictions. In this contest it was held, that the probate granted in one province, was void as to goods in the other; it was, probably, then as sew, fee wteiares Sgh&g for fee Samoa. Disputes arose, too, betw@®ra fee difesmt cEeeegss of fe© earns© provine©, gs to fee location of fee intestate® ©Esets ; es, fc festeje®, if fee intestate died ia oso 'Sosese with a prewsoEy note ia Ms pocket, s$id fe© debtor resided ia fe© other; ia riMeh dlosess war© fee assets located? These diEcal-fes were Snaly settled by ©among, or enactments, of the eonvosatioa ef bishops. By fees® omone, simple ©tinirset debts became imm «» fe§>& of fee ¿¡lesees wher® fe® dabfea- lived; spemity debts were located where fee specialty happened to fes at fee fen© of the chafe ®f fes ¡atéstete; judgments or seknowfcdgamts ware hmm mtiaMlia, where they were obtained, given or seknowledged. Thes® eamoac were enacted in the time ©f Jamos I., by fe© Mchops and dergy in <8©avGsati®a sisEsmMéi, and w©re somlraad fey the ting wnésr fee great seal; but they were sever emSmed fey parliamaat; eonseqaentiy, fe© civil corarte never acknowledged their validity. Bfll fee ©ivil ©btoso adopted so much of these canons as they ©bos® to consider engómente ©f fe© ancient «sage of the church of England. Be© 2 Ailqps S5S. For instance, fe©y lk®m©d ©Eecto in two kingdoms and a ioraigm admin» tsteator, to the ecclesiastical cas© ©f two provine®® and $a administrator appointed by fee metropolian of og© of them. The comity of nations reejmred a recognition of th© oBeM capacity of ft© foreign admin®» feator even as it secured .a rewgaitiom of a foreign judgment; brat it was said that this comity did not require the recognition of the right ®f ñ foreign administrator to adnnassfei? Sosaestie assets; fees© asset® feting reserved for domestic «’editors. It we® memmabl©, it was said, to permit a foreigner to withdraw fe© domeetie assste, and tin® to remit a domestic creditor to a foreign tribunal, wMeh, ia many oases, would be equivalent to a total sssriSee of domestic intereste. This would be to carry national politeness a little farther than th© corarte were willing to extend it. But they, too, ia analogy to th© doctrine of fee ecclesiastical rule, compromised, upon fee locality of fee assets; holding simple contract debts to be the assets of fee mmksy where th® debtor lived; whilst they agreed that judgments should fee considered assets of the country in which fee judgment wa-3 obtained. Thee® principles are recognised in Goodwin vs. Jones, 8 Mass., 513, cited in üMm&ge vs. Chapel.

Thus it will appear that, if there be any ba~weem i~ which the foreign cdiMnisfoator can sustain a suit against -a domestic defendant, it does not depend, as the plaintiff’s mmsei supposes, upon whether the judgment sued on, was obtained by the testator in hk lifetime, or Ms administrator after Ms death, but upon the fact of the locality of the asset having been changed by the conversion of a simple contract debt into a judgment. BotMng is more artificial than the reasoning of the plaintiff’s counsel, that the foreign judgment having been rendered in the name of the administrator, h© may sue on if in Ms own name, and that Ms description of himself as administrator is mere surplusage. Certainly under our statute, wMeh requires the action to be brought in the name of the real party in interest, to sue in Ms own right, and prove a debt due the estate of another, would be a fatal variance. It is true that in some eases, m for the recovery of property belonging to th® estate tortioasly token from Me custody, he may sue in his own name; so also may any other bailee; for a promise to Mm to pay a debt due the estate, is© may sb© In his owe rams; uo may the factor of a foreign house sue for a debt due the principal; but in either suit I apprehend the executor or agent io only a nominal plaintiff, and the defendant may set up in each a suit, any equities against the estate, in the one case, or the principal in the other. If it were true that the administrator could sue upon a judgment obtained by him as administrator in Ms own right, without regard to th® estate, it would follow that the defendant could offset- any claim against the individual, and so defeat the claim of the estate for whose real benefit the suit is brought.

I have labored upon this case th® more, because tMs abstruse question turns wholly upon the basis of the distinction between suits brought by an administrator upon simple contract debts, and those that Imre ripened into judgments.

But if the distinction is founded, as I think it is., upon the-conventional locality of th© assets; and this is based upon th© obsolete idea of the Mgher dignity of specialty and judgment debts, what becomes of this doctrine, when tMs distinction no longer exists ? How, when no distinction is drawn between the dignity of a promissory note and that of a bond (since-notes, specialties and judgments are considered not debts of different degrees, but only different degrees of evidences of debt-,) what becomes of a doctrine founded on th® old view, coasidered by the new light ? The noblest of all sciences must not be permitted to lag in the march of improvement; an error can only be reformed, by overthrowing all its consequences.

If, then, the'true principle be, that it behooves every government to protect its own citizens, and for this purpose it is necessary that assets within its jurisdiction, be administered under the supervision of its own courts, in order that they may be made to respond to the claims of domestic creditors, then it follows, that this suit should not he sustained, if a judgment in favor of the plaintiff would have the effect of withdrawing local assets from the reach Of domestic creditors. Suppose the judgment sought were to be obtained, what would be the result ? It would be satisfied out of the effects of the debtor then in California» the money shall be made and in the hands of the sheriff; does not this money become assets of the estate located in California, and shall a foreign administrator be permitted to withdraw these assets from the jurisdiction of our courts, without accounting to our own citizens to whom the estate may be indebted ? In Vaughn vs. Northup, 15 Peters, it was held that an administrator in one state could not be sued in another; then it follows that if this suit be permitted, we have, a suitor who cannot he sued.

It has even been doubted whether a domestic debtor could defend by plea of payment made to a foreign administrator; although in Doolittle vs. Lewis, 7 Johns. Ch. R., chancellor Kent held such a payment good. I cannot see the substantial difference between permitting a¡ foreign administrator to withdraw assets belonging to the intestate at the time of his death, and those becoming assets by process of law after the death of the intestate. It is useless to give the plaintiff a judgment, if the effects of the judgment can only be administered by a domestic administrator. It is urged that a domestic administrator cannot sue upon the judgment; but if I am right, the effect of this judgment is to conclude the liability of the defendant to the estate, and the question is, simply, by what agent or trastee shall the debt be collected ? In this view, the judgment would be as available to the domestic as the foreign administrator.

Upon a full consideration of the case, somewhat in the face of authority I confess, I am inclined to sustain the. demmrer. Let judgment be entered accordingly.  