Picquet v. Swan, 19 F. Cas. 598

Picquet v. Swan

19 F. Cas. 598 | U.S. Circuit Court for the District of Massachusetts | 1824

STOET, Circuit Justice.

It is not necessary to consider, how far the pleas in abatement are exact in their form, nor whether both can be pleaded successively to the writ. The substance of the objections raised upon the pleadings is, 1st. that there is a misjoinder of different causes of action, some in a personal and some in a representative character; 2d. as to the causes of action in a representative character, that no administration has been taken out in any court of probate of this state. The first objection, though it is plead-able in abatement, is fatal also in every stage of the suit, if well founded. Com. Dig. “Abatement,” G 4; “Action,” G 1; Chit. Pl. 206, 444. The last is properly pleaded in abatement; for if the defendant pleads in bar, it is an admission, that the plaintiffs are competent to sue in their representative character, if they state such character. In the present suit some embarrassment might arise, because the representative character is not set forth in the technical language of the common law.

Some doctrines are so well settled, that they need only to be stated to command assent. Such is the doctrine, that in Massachusetts no foreign administrator can maintain any suit without taking out administration in our courts of probate. That principle is obligatory upon this court sitting in the administration of local law. The fact, that no such administration has been taken out by the plaintiffs is admitted by the demurrer; and therefore the only inquiry is, whether upon the pleadings the first objection is maintained. In other words, are any of the causes of action in point of law brought in a representative characterIt appears to me, that those in the third and fourth counts clearly are so, and can be maintained upon no other ground. I lay no stress upon the language of the writ, describing the plaintiffs “as aliens and beneficiary heirs of Jean Claude Picquet.” That allegation may be gotten over as mere matter of personal description. But the third and fourth counts allege, that the bills of exchange therein declared on were indorsed to J. C. Picquet in his lifetime, and belonged to him at his decease, and that the plaintiffs are his right heirs, and have accepted the heirship with the benefit of an inventory, according to the laws of France, and thereby have by the same laws become “the beneficiary heirs and administrators of the estate of J. C. Picquet,” and as such, “the joint and sole proprietors” of the same bills. Now, if I am at liberty to examine into the French laws, I cannot but know, that this is precisely a description of an administrator in the sense of the common law. The civil law *600throws the heirship and administration upon the heirs of the deceased; and the acceptance of it with the benefit of an inventory, is the same, as accepting it with a liability only for the debts of the deceased, coextensive with the assets coming into the hands of the heir. But the counts plainly state the death of tlie holder of the bills, and the right asserted is a derivative right under him by operation of law after his decease. It is therefore not a personal right of the plaintiffs upon the transfer inter vivos; but a right claimed in virtue of a representation of the deceased under the French laws, which makes the plaintiffs successors to the property in the bills. Under these circumstances the plaintiffs must be deemed to sue here, as administrators of the property of the deceased; and therefore the objections are maintained in their fullest extent. There is a misjoinder of counts and the want of a rightful administration under our laws. The French laws may prescribe how rights shall pass to property of the deceased in that country; and we, out of comity, may recognise the like rights as to his property here. But the mode of instituting and pursuing remedies must be decided by our laws. Judgment must be for the defendant on the demurrers. Judgment accordingly.

[NOTE. Subsequently Cyrus B. Picquet sought by foreign attachment to subject to the payment of his claim certain property before conveyed by James Swan to his wife, who at this time was deceased, having conveyed the same for the benefit of her three daughters. The case against the trustees was dismissed. Case No. 11.133. Later it was held that Swan had not been properly served with process. The action was dismissed. Id. 11,134. Antonio F. Picquet then, as administrator of his deceased father, Jean Claude Picquet, filed his bill in equity against Swan and the other defendants in the_ attachment case. Swan, being out of the jurisdiction of the court (in France) refused to appear and answer. The case was heard upon motion to dismiss because of the inability of the plaintiff to procure the necessary parties before the court. Before granting the motion the plaintiff was allowed additional time in order to procure _ Swan’s appearance. Id. 11.135. Swan died in 1831. and after his death a judgment at law was obtained against his administrator. Case unreported. A motion for a new trial was overruled. Case No. 11.131.]