Branch Bank at Mobile v. McDonald

GOLDTH WAITE, L The attachment in this case was sued out by a resident creditor, against the estate of a nonresident debtor. The original debtor having died before final judgment, a scire jadas was issued against his foreign executor ; and the principal question presented upon the record is, whether a suit of this character can be revived against the foreign representative. The plaintiff in error insists, that, as the statute, (Clay’s Digest 58 § 14,) under the construction which has been given to it by this court in the cases of Loomis v. Allen, 7 Ala. 708, and Hemingway v. Moore, 11 Ala. 645, extends the remedy in such a case against the foreign executor of the debtor, the suit commenced by attachment against the non-resident can, upon his death, be revived against such representave. The clause of the statute upon which the decisions referred to are predicated, is as follows: “ And in case of the death of any debtor residing out of the limits of this State, having lands or other property therein, the creditor resident within the State shall, in like manner, be entitled to recover by attachment against the executors or administrators.” I do not think that the construction given to this clause of the statute in the cases cited is the correct one. The resident creditor [477] was, under another section of the same act, entitled to his attachment against the estate of the non-resident debtor; and, in my opinion, the object of the clause in question was simply to confer upon the creditor the same rights, against the estate of the deceased debtor, that he had against his property while living; and the remedy was intended to be given against the party who was recognized here as the legal representative of such property. This construction would not militate against the rights intended to be secured to the creditor; for it would always be in his power, when the decedent left property in this State, to procure the issue of letters to the proper officer, upon application to our own tribunals. The foreign administrator has nothing whatever to do with the estate of the decedent, beyond the jurisdiction of the forum from which he derives his authority to act; and having no legal interest in the property attached, he would not be as likely to have notice of the levy, as the person on whom the duty of administering the property was devolved by the grant of letters in this State; and therefore the less opportunity of investigating the claim upon which the attachment was sued out, and, if need be, interposing the necessary defences. But again; the rule is well settled, both in England and the United States, that no suit can be brought against an executor or administrator, in his representative character, in the courts of any other country than that in which he obtains his letters. Harrison v. Mahorner, 14 Ala. 833; Story’s Conflict of Laws, § 523. Of course, we entertain no doubt as to the right of the legislature to give this remedy, even against the foreign representative; but the terms of the act are not such as to force this construction upon us; and when it is shown to be in violation of all the analogies of the law, in relation to foreign administrators, — -when it is unnecessary, to enforce the rights which it was the object of the act to secure, and would, in many cases, prejudice the rights which belong to the other parties in interest, it is sufficient to satisfy my mind, that such a construction is incorrect, and should no longer be adhered to. A majority of the court, however, entertain different views, and think that the decisions to which I have referred should be maintained. There is, however, another ground, which is decisive of the [478] case. Conceding that, in a proper case, an attachment maybe sued out against the foreign representative, yet the position taken by the plaintiff in error cannot be sustained. The only case in which the foreign executor or administrator is allowed to be sued by attachment is, when the testator or intestate was a non-resident at the time of his death. In the present case, the attachment was sued out in the lifetime of the debtor; and although he may have been a non-resident when the attachment was issued, non constat that he was so at the time of his death. To sustain a remedy of this description, the record must show a case in which the remedy would lie, and it must not be left to inference or deduction; not showing it in the present case, except by inference, the argument based upon that ground falls. At the common law, the death of a sole defendant before final judgment abated the suit; and the act of 1802 (Clay's Digest 813 § 1,) which authorizes the executor or administrator of a deceased defendant to be made a party, certainly does not apply to the foreign representative. The pleas were in substance, that the party who was brought into court by scire facias as the executor, was not, and never had been, the executor of the defendant in this State. This, in legal effect, is the plea of ne tongues executor. 1 Saunders’ Pleading 510. There was no error in overruling the demurrer to the pleas, and the judgment is affirmed.