the lapse of a few years, or even a few mOhths, though the general fact that he was present when certain papers were signed and acknowledged might be recalled. It is unnecessary to pursue the subject further. I have said enough, no doubt, to indicate to counsel the view I have taken of the material parts of the testimony, and the grounds upon which I rest my decision. In a case of this character it is not enough that there is a preponderance of evidence in favor of the defendants if it should be conceded that there is suchu preponderance in the present case. In the language of the state courts, which furnishes the rule of decision, the burden is on the defendants, and the proof furnished to overcome the certificate must be "clear, cogent, and convincing." It is a record that is assailed ,-a record of au official act performed more than six years ago, and made cotemporaneously with the acts attested. The record is in due form of law, and it is aided by the presumption that always attends the acts of public officers, that the duty devolved on the officer was properly performed in the manner stated. In the present instance no effort is made to overcome it by circumstantial proof in its nature conclusive or very cogent; but the attempt is to impeach the record, solely by the recollection of witnesses, who, unless they are exempt from ordinary human frailty, can at best only have at this time an indistinct recollection of the material facts to which they testify. A decree must be entered for complainant. It is so ordered. Complainant's counsel may prepare and submit a decree for the court's approval. Interest will be aHow6d and computed on the bond at the rate of 10 per cent. per annum from maturity. Interest on the coupons 'will be computed at 6 per cent. per annum from their maturity. Interest on sums advanced to pay taxes will be allowed at the rate of 10 per cent. per annum.
Circuit Court, N. D. New York.
FOREIGN EXECUTOR-RIGIIT TO SUE.
August 26, 1889.)
An execntor appointed in another state has not, as such, in New York, any authority to prosecllte a suit at law or in equity.l
SA:\1E-WHEK OBJECTION CAN BE RAISED.
Where a bill sets forth affirmatively, as the fonndation of the right to sue, the granting of letters of administration in another state, and nothing else, and the answer puts it in issue, the right of plaintiff to sue is not admitted, and defendant can raise such objection at the hearing on the merits.
EQUITY-COMPLETE REMEDY AT LAW.
Where plaintiff declares in his bill that he is entitled to recover an exact sum, and asks no discovery, and shows that no accounting is necessary under the direction of the court, he shows that he has a complete remedy at law, and the court will order the bill dismissed 8ua sponte.
lConcerning the right of a personal representative to sue in the courts of another state than that in which he was appointed, see Gove v, Gove, (N. H.) 15 Atl. Rep. 121, and note; Newberry v. Robinson, 3tl Fed. Rep. Sil, and cases cited.
MILLS V. KNAPP.
In Equity. O. E. Ide, for complainant. F. P. Tabor, for defendant.
BLATCHFORD, J. This is a suit in equity to recover the sum of $8,221.16, as profits belonging to the plaintiff's intestate resulting from the purchase and sale by the defendant of 200 shares of the capital stock of the Adams Express Company, which it is claimed the defendant bought and sold, not for himself, but for the plaintiff's intestate. The bill alleges that the plaintiff "is the duly appointed and qualified administrator of the estate and effects of one Merrill 1. Mills, lnte of the city of Detroit, in the state of Michigan," who died on or about the 14th of September, 1882, "under and by virtue of letters of administration duly issued to him by the judge of probate of the county of Wayne, in the state of Michigan, on the 13th day of October, 1882, which said letters were issued out of and under the seal of the probate court of the said county, the same bearing date the 13th day of October, 1882, upon the petition of Cynthia A. Mills and Merrill B. :Mills, the widow and son of said deceased." This is the only averment in the bill as to the issuing of any letters of administration to the plaintiff. It is apparent, theref(Jl'e, that he rests his capacity to sue solely upon the grant of letters of administration to him in Michigan. The suhstance of the nllegations of the bill is that in October, 1869, the intestate delivered to the defendant $2,800, which the defendant accepted as the property of the intestate, to invest it in the purchase for the intestate of 200 shares of the capital stock of the Adams Company; that the defendant, pursuant to said agreement, purchased for the intestate the 200 sharcs, of the par value of $100 per share, for the price of $.57.50 per share, and paid the $2,800 as part of the purchase price, and paid or agreed to pay $8,750 as the balance of the purchase price, including brokerage, making an aggregate of $11 ,550; that it was agreed between the detimdant and the intestate that the former should purchase the stock and take a transfer of it in the name of the latter, but, instead of doing so, the defendant, without the knowledge or consent of the intestate, had the stock transferred to the name of the defendant, and not to the name of the intestate, and the latter did not discover that fact until after the defendant had sold the stock; that on the 12th of October, 1871, the defendant sold the 200 shares for $79 per share, being $15,800, less $25 brokerage; that during the time the 200 shares stood in the name of the defendant he received seven dividends thereon, of $400 each, that the interest on those dividends, up to the time the stock was sold, amounted to $147.83; that during the time the stock stood in the name of the defendant he expended moneys on account of the intestate, for interest on unpaid purchase price, brokerage, etc., not exceeding $1,775; that the profits on the purchase and sale of the 200 shares, and the moneys received by the defendant on the sale thereof, and for dividends thereon, and interest on such dividends, over and above all moneys expended by the defendant on account of the inv.39F.no.12-38
testate in and about the purchase and sale of the 200 on October 12, 1871, to $8,221.16; and that the defendant, thoughre,quested by the intestate in his life-time, and by the plaintiff, has not paid over "said profits." The prayer of the bill is that the defendant llccount for and pay over to the plaintiff all such gains and profits as accrued and arose, or were earned or received, by the defendant on the purchase and sale and for or on account of the 200 shares, and which would have been received by the intestate but for the wrongful act of the defendant in having the stock transferred to his own name, and but for his acts in and about said stock transaction. By his answer, the defendant denies the allegations above set forth as contained in the bill. The answer does not otherwise refer to the subject of the granting of letters of administration to the plaintiff, nor does it raise the objection that the plaintiff has a plain, adequate, and complete remedy at law. After replication proofs were taken on both sides, and the case has been heard on pleadings and proofs. As part of his proofs the plaintiff offered in evidence an exemplification of a record from the probate court of the county of Wayne, in the state of Michigan, showing a petition for find the granting of letters of administration on the estate of the intestate to the plaintiff. The counsel for the defendant objected at the time to the introduction of the exemplification" as incompetent, and no proof under the statute, and does not show complainant's authority to sue in the state of New York." It is objected by the defendant that the plaintiff shows no right to bring this suit in the state of New York. This objection must prevail. In view of the al1egations of the bill and the denial in the answer, the .question is raised whether an administrator appointed in one state can, by virtue of such appointment, maintain an action in another state to .enforce an obligation due his intestate. In Noonan v. Bradley, 9 \Vall. .394, 400, it was said: "Upon this question the law is well settled. All the cases on the subject care in one way. In the absence of any statute giving effect to the foreign .appointment, all the authorities deny any efficacy 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 l1rst obtain a grant of administration therein in accordance with its laws." ' There is no statute of the state of New York giving effect in that state to the :Michigan appointment. Ancillary letters taken out in New York .are a necessary prerequisite to the maintenance of the present suit. In Parsons v. Lyman, 20 .N. Y. 103,112, it was said to be well settled in New York that an executor or administrator appointed in another state ,has not, as such, any authority beyond the sovereignty by virtue of whose MorreU v. Dickey, 1 Johns. Ch. 153; DooJaws he was appointed; .little v. Lewis, 7 Johns. Ch. 45; Vroom v. Van Horne, 10 Paige, 549. It is objected by the plaintiff that the answer does not set up the
MILLS 'V. KNAPP.
11lnintiff's incapacity to bring this suit. In Noonan v. Bradley, 9 Wall. 394, the plaintiff sued in the circuit court of the United States in 'ViscOllsin, under an appointment of him as administrator made in New York. The point was taken by the plaintiff that, by pleading to the merits, the defendant had admitted the representative character of the plaintiff, and his right to sue in that capacity; but, in answer, the court observed that the declaration !;tated that the grant of administration to the plaintiff was by letters issued in the state of New York, and that the plea to the merits only admitted the title as stated in the declaration. So, in the present case, as the bill sets forth affirmatively, as the foundation of the right to sue, the granting of the Michigan letters, and nothing else, and as the answer puts that in issue, it cannot be held that the right of the plaintiff to sue is admitted, or that the defendant is not at liberty to raise the objection at the hearing on the merits, especially as the point was distinctly taken when the exemplification was offered in evidence. Besides this, the plaintiff, on the face of his bill, has a plain, adequate, and complete remedy at law. He declares in his bill that the amount he is entitled to recover is $8,221.16 as of October 12, 1871. He asks for no discovery. He shows that no accounting under the direction of the court is necessary, for he makes the accounting himself in his bill. The prayer that the defendant may" account for and pay over" "such gains and profits," which he fixes at a specilied amount, is no more than a prayer that the defendant pay over such specified amount. No other equitable relief is asked. In such a case it is not necessary that the objection should have been taken in limine in the answer. It is taken at the hearing, and that is sufficient. This is not a case where it is competent for a court of equity to grant the relief asked. Reynes v. Dumont, 130 U. S. 354, 395, 9 Sup. Cf. Rep. 486; Kilbourn v. Sunderland, 130 U.S. 505,514, 9 Sup. Ct. Rep. 594. It is governed by the rule laid down in Lewis v. Cocks, 23 Wall. 466, where the court, finding the case to be an action of ejectment in the form of a bill in chancery, ordered the bill to be dismissed, although the objection was not made by demurrer, plea, or answer, or suggested by counsel, saying that, as it clearly existed, it was the duty of the court sua sponte to recognize it, and give it effect. It results from these views that, without inquiring into the merits of the case, the bill must be dismissed, with costs.
(Circuit Court, D. New Jer.gey.
April 24, 1889.)
CARRIERS-INJURY TO PASSEKGER-CONTHIBUTORY NEGLIGE1<fCE.
Where a ferry-boat has two gangways by which passengers can leave, a passenger who attempts to leave by the gangway intended for teams, and who is inj llred by the guard-chain for such gangway being dropped on his leg while he is astride of it, is guilty of contributory negligenQe, and cannot reo cover from the owner of the boat.
At Law. Action for damages. Edward Graham sued the Pennsylvania Railroad Company to recover damages for personal injuries. Plaintiff, while leaving defendant's ferryboat by the middle gangway, had his leg broken by the guard-chain being thrown against it by a deck-hand. JUdgment directed for defendant on its motion. William S. Gumnwe and Herbert W. Knight, for plaintiff. James B. Vredenbw'gh, for defendant.
'VALES, J., (orally.) I have concluded to grant this motion, and will briefly state the reasons for doing so. The material facts of the case are quite clear. The plaintiff, at the time of the accident when he received the injuries complained of, was a passenger on board a ferry-boat belonging to the defendant company, and had been in the daily habit of crossing the ferry for a great many years, -19 or 20 years, -and had frequently left the boat in the same way as he did on the day he was hurt; that is, by the horse gangway, instead of by one of the footways provided for passengers. On the opening of this case it occurred to me that the plaintiff, at the time of the accident, had put himself in a place where he had voluntarily exposed himself to the risk of getting hurt, and the only reason that constrained me from granting a nonsuit was that I thonght perhaps the company, by its acquiescence, had permitted and enconraged passengers to leave or disembark from the boat in the manner the plaintiff had done, and that there might have been gross and inexcusable negligence on the part of the deck-hand who unhooked the chain and threw it aside just as the plaintiff was stepping over it. Exactly how and when the chain was taken down has not been satisfactorily proven. There is some conflict in the testimony on this point. But, admitting that the chain ,,,as thrown off while the plaintiff was astride of it, after all, did he not assume the risk, and directly contribute by his own act and want of care to the accident'? It will not be disputed that if this were so he has no right to recover; and where the evidence is so clear that if the jury should find a verdict for the plaintiff the court would be compelled, in the exercise of a sound discretion, to set the verdict aside, it will be its duty, under such circumstances, to direct the jury to render a verdict for the defendant. Now, it is true that no public notice was given-no prohibition, no remonstrance, no regulation of any kind-to prevent pas-