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26 U.S. 686

Wilkins  v.  Wilkins

ERROR to the District Court of the United States, for the Mississippi district.

This was an action of debt brought in the Court below, upon a judgment obtained by the plaintiff as administrator against the defendant, in the District Court of the United States for the western district of Pennsylvania. The declaration was in the common form, averring the recovery by plaintiff as administrator, &c.

The defendant pleaded three pleas in bar. 1. Ne unques administrator. 2. That in January 1817, in the Orphans' Court of the county of Adams, in the state of Mississippi, the defendant was duly appointed sole administrator, and has continued to act in that capacity. 3. That the judgment was obtained per fraudem. The plaintiff replied to the third plea, on which issue was joined; and demurred specially to the first and second, assigning as causes of demurrer. 1. The said pleas set up matter which, if true, existed anterior to the judgment on which the suit was brought; and might have been urged, if effectual at all, against the original recovery. 2. The said matters should have been pleaded in abatement, and not in bar. 3. They contain averments against the record. 4. That the matters therein contained are immaterial, and could not be set up after judgment, to avoid its effect, in the state from which the record came. 5. They are in other respects uncertain, informal, and insufficient.

Joinder in demurrer. The judgment of the District Court was in favour of the defendant, sustaining both pleas as sufficient.

Mr. Coxe, for the plaintiff in error, contended.

1. The first plea is clearly defective. The plaintiff in his representative character, had sued in the state of Pennsylvania, and recovered a judgment. In this subsequent action brought upon that judgment, the demand is a personal one. He need not name himself administrator, but may sue and recover in his own name. L. Ray. 1215. Doug. 4. 2 T. R. 126. 2 Phil. on Ev. 290. He need not make profert of the letters of administration, and in this case no such profert is in fact made. Even in action for an excape out of execution, on a judgment obtained as administrator, he need not style himself administrator, nor make profert. Hobart, 38.

In such cases, if he do sue in the second action in his representative character, and so designate himself, it will be held mere surplusage, and can in no degree vary the relative rights of the parties. 1 Ver. 119. 16 Mass. 71. Ib. 533. It would be a bad plea, that plaintiff had not been appointed administrator in the state where the second action is brought, 16 Mass. 533, for in such case, his right to sue is derived from the judgment which he has obtained, and is wholly independent of the letter of administration. 9 Cranch, 151.

The judgment obtained in the District of Pennsylvania, is conclusive evidence of the representative character of the plaintiff, as well as of the amount of the debt. At common law, in an action of debt on the judgment, or in scire facias, the defendant can plead nothing which existed anterior to the original judgment, or might have been pleaded in bar to the original recovery. 1 Chit. on Pl. 350. 8 Johns. 77. 2 L. Ray. 853. Cro. Eliz. 283. 6 Com. Dig. 306-7. Tit. Plead. 2 D. 1. A judgment obtained in one of the Courts of the Union, has the same validity in other Federal Courts, as a judgment in a state Court has at common law, within the same jurisdiction, or as it possesses under the Constitution and laws of the United States, in a sister state. Montford vs. Hunt, 3 Wash. C. C. Rep. 28. Bryant vs. Hunter et al. Ib. 48.

The true test by which the validity of the plea is to be settled, is to ascertain whether it would have been held good in an action brought on the judgment, in the same Court where the judgment was had. The cases already cited, are decisive of that question.

2. The second plea is open to the same objections which exist against the first, and is otherwise informal and defective. It is argumentative; the mere fact that he was appointed administrator of James C. Wilkins by the Orphans' Court in Adams county, furnishes no exemption from suit. It leaves the whole substance of the defence set up, to be made out by inference and argument, to wit; that plaintiff was not such administrator; which however, is only thus inferentially denied.

This, if substantially a defence, should have been pleaded to the original action; and therefore cannot avail the party in the present stage of the proceedings. Even if treated now as a plea to the original demand, it is essentially defective, inasmuch as it does not aver that the defendant had obtained letters of administration, prior to the institution of the suit in Pennsylvania. It would be a monstrous doctrine to introduce, that a party after a suit has been instituted against him in one jurisdiction, may defeat all the beneficial results of a judgment, by obtaining letters of administration in another state.

3. The first plea; which in terms traverses the fact that plaintiff is administrator, and the second, which argumentatively rests upon the same ground, are both bad as pleas in bar. In the case of Childress vs. Emory et al. 8 Wheat. 642, this Court recognised the doctrine that the objection that plaintiffs were not executors, must be taken advantage of by plea in abatement.

Mr. Baldwin and Mr. Jones for defendant.--

It will be admitted, that the first plea is defective, and no effort will be made to sustain the judgment of the District Court in reference to that.

The second plea is however considered as furnishing a valid defence, and its character and effects have been wholly misapprehended by the adverse counsel. The demurrer admits that defendant was the sole administrator of Wilkins, from 1817, till the institution of this suit. Under the testamentary system of Mississippi, where he resided, a debt due to the deceased is assets in the hands of the administrator, and is included in the inventory, as so much money. The plaintiff sued as administrator, and defendant was at the time administrator within the jurisdiction in which the action was instituted. Every cause of action existing there, was necessarily embraced in the powers of the party, who was alone recognised there as the personal representative of the deceased. He was bound there to account for it-and to distribute it. He was prohibited by law from sending the assets out of the state. He could not legally pay any debt without the sanction of the Court. That which he is prohibited from doing directly, he will not be compelled to do indirectly. If sued by creditors, and distributees, upon his official bond, he must be responsible to them for the whole amount of the inventory; and he cannot be discharged by showing payment to plaintiff.

There is no such thing as an auxiliary administration. 9 Mass. 355. Each administrator is independent of the author; each derives his power from a competent authority, and each is independent of the other within his own sphere. The residence of the deceased may determine the rule of distribution, and the relative rights of those entitled to the estate; but the concession that final distribution is to be made according to the law of Pennsylvania, though the record is wholly silent as to the place of his residence, leaves the question before the Court entirely open.

But the Courts in Pennsylvania have no jurisdiction over the defendant. He derives his power from the Mississippi Court. To it, and to it alone is he responsible. He cannot be cited to account, or to pay over to creditors, or distributees there-all this is to be done in Mississippi.

This debt, therefore, which the defendant is answerable for in his own state, and in the manner prescribed by the local law, cannot be assets in the hand of the Pennsylvania administrator.

The objection of the plaintiff that these matters existed anterior to the first judgment, and should have been pleaded in bar to the first action, is inapplicable. It is admitted that the record is conclusive, upon all the matters which the judgment professes to decide. But if the Pennsylvania Court had no cognizance of the subject matter, if it belonged exclusively to another tribunal-if the alleged debt or claim was exclusively within the jurisdiction of the Orphans' Court of Mississippi, or if defendant acted in such a capacity, that no Court of common law jurisdiction could decide between the parties upon the subject matter of controversy, then the question prosented is one of jurisdiction, and it is well settled that a Court, when called upon to enforce the judgment of another tribunal, may examine into and decide upon the question of jurisdiction. 4 Cranch, 269.

The District Court of Pennsylvania has admiralty jurisdiction; if this suit was brought on an admiralty decree, or on a stipulation, or on a bond to the marshal, and it should appear on the record, that the admiralty had no jurisdiction over the original cause of action, set forth in the libel, the objection might be urged any where, and at any time. The whole proceedings would be a nullity. 3 Cranch, 331.

So if the objection on this ground appeared incidentally, the effect would be the same. In this case then, the plea discloses a case beyond the proper jurisdiction of the Court in Pennsylvania, and this we are permitted to do with effect.

It is said these matters should have been pleaded in abatement, and not in bar. Pleas in abatement are such as go to the place where suit is brought, to any personal privilege of defendant, or to the form or species of action. If the party fails to plead in abatement, it is a submission to the process, and admits the jurisdiction, so far as that he is rightfully before the Court. But if the plaintiff cannot sue any where, if his cause of action is not cognizable in the Court where he sues, even express consent cannot give jurisdiction. The objection is fatal, and wherever it is shown to exist.

Mr. Justice THOMPSON delivered the opinion of the Court.--


This case is also available at w:Public.Resource.Org with additional information here:

This public record shows the heading:

26 U.S. 686

1 Pet. 686
7 L.Ed. 315

January Term, 1828

There is also additional content below, which appears to be the summing up of the opinion of the court.

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