John Catron

“ Nixon, and now Trotter, are to be regarded, at all times, as mere stakeholders. The executor of Matthias, the testator, was called on to account for this estate to one or the other of two British subjects; John Aspden of London's claim to heirship was pronounced by chancery to be without proof; not, indeed, that he had brought some proof, and there stopped, and that the court pronounced that proof worthless, but that, after five years, he could produce no proof at all,-and hence the court regarded that as an irresistible presumption that none existed, and so decreed. ”

“ In Pennsylvania, commonwealth always a creditor.
From these authorities, it clearly results that there is no privity between English administrator whose bill was dismissed, and Pennsylvania administrator who now sues. A decree of dismissal of their bill cannot bar ours in so different a right. ”

“ There is no principle better settled, than that the decree, sentence, or judgment of any court, having jurisdiction of the subjectmatter, whether foreign or domestic, is conclusive upon the rights of the parties in a subsequent proceeding between the same parties or their representatives. ”

“ Suppose American administrator to be a creditor, such a dismissal could be no bar. This court will not inquire whether he is or not. Pennsylvania administrator represents the commonwealth, which always is a creditor.
But again, Matthias Aspden, at his death, had property in England, France, and the United States. Of the French funds we know nothing. They never were in England. On his death, and Nixon's probate of will in England, the English funds vested in him as English executor. As American executor, Nixon had American funds. ”

“ If, then, foreign administrators cannot affect the assets in Pennsylvania by suit, or by assignment, directly, how can they be affected by mere omission on his part to prosecute a claim to other assets, out of the jurisdiction of Pennsylvania, beyond the control of the Pennsylvania administrator, who could not interfere with, become a party to, or regulate in any way his proceedings abroad? ”

“ At no time in Pennsylvania has there been any privity between a British and a domestic administration. If John Aspden or his English administrators had obtained a decree in England, it would be inoperative here. No privity between them and Mr. Brown, no privity between Nixon in England and Nixon in the United States. Brodie v. Bickley, 2 Rawle, 431. The administrator with will annexed of one domiciled in England, proves the will in Massachusetts; he is not to account for English assets. ”

“ The chancellor remarks, in the course of his opinion, that if a party thinks proper to bring his cause to a hearing, &c., and the cause capable of being opened, and then makes default, it is very difficult, and would be rather mischievous, to treat such conduct merely as a nonsuit at law. 'If,' says the chancellor, 'the judgment in the former suit, such as it was, would have barred the proceedings in this suit, it was upon the defendant to set up that bar in some shape, either by a plea in bar, or by an answer insisting upon the same benefit as if it had been pleaded in bar. ”

“ There is nothing more hurtful to society than that lawsuits be perpetual. In every lawsuit there ought to be a ne plus ultra; some step should be ultimate; and a decree dismissing a claim is in its nature ultimate.' 2 Kames on Equity, 364. To apply, in a word, these remarks to the present case, let it be borne in mind, as has been often remarked, that the dismissal was for a total want of proof, after five years of litigation,-raising, as the court justly thought, a presumptio juris et jure of the non-existence of the alleged fact of heirship ”

“ And immediately after the decision of the Circuit Court giving a construction to the will, by which the heir at law became entitled to the personal estate of the testator, they appeared in court, ready and willing to deprive the said John Aspden of Lancashire of the character of heir at law, and to substitute themselves as such, by an attempt to revive a claim which had been twice decided against them, and that, too, after neglecting, from 1825 to 1834, to offer a particle of evidence in support of it. It would be most iniquitous to suffer them to do so. ”

“ Equity will not grant a new trial at law, where the party seeking it has been guilty of any neglect in obtaining his evidence, even though such neglect were occasioned by the ill-judged advice of his counsel, and though his bill charges positively that the demand against him has been fully discharged. ”

“ Mansfield, Buller, Blackstone, Eyre, and others sustain the doctrine of revision; Nottingham, Hardwicke, Kenyon, Ellenborough, and the current of more modern authorities, down to the present hour, repudiate the distinction, and are disposed to inquire into no foreign decrees or judgments further than, first, as to the competency of the court; second, the absence of all fraud; third, whether (admitting the decree to the fullest extent) it does, in point of fact, embrace the matter in controversy. ”

“ The American administrator could not have set up a decree in favor of the English administrators, if such a decree had been made, as the foundation of a suit in this country, nor as a bar to the claims of others as distributees.
It would certainly have been no evidence against John Aspden of Lancashire. Picquet v. Swan, 5 Mason, 40.
General principles restrain jurisdiction of all courts within their local limits. In cases of non-residents, judgments are never in personam, they are in rem, and bind only the goods attached. ”

“ On every principle, then, even of reciprocity and of comity, in addition to all the other reasons that have been urged, it is not doubted but that the Supreme Court will sustain those pleas in bar, and with the greater alacrity, as it may well be asked, Cui bono overrule them, as there is every moral certainty that it can only tend to another series of proofless delays? ”

“ However true it may be, in cases peculiarly circumstanced, that one jurisdiction administering assets may, as matter of comity, transmit them to a foreign jurisdiction, there to be distributed; still, the doctrine can have no application here, as no assets had been transmitted to England from Pennsylvania, and a suit was pending, and in no part decided, in this country for the American assets, before and at the time the decree in England was made ”

“ Judge Story, in his treatise on equity (vol. 2, p. 739, § 1523, edit. of 1839) , says,-'A former decree in a suit in equity between the same parties, and for the same subject-matter, is also a good defence in equity, even although it be a decree merely dismissing the bill, if the dismissal is not expressed to be without prejudice.' Cooper's Eq. Pl. ch. 5, pp. 269-271; Mitford's Eq. Pl. by Jeremy, 237-239. This principle of equity was applied by the Court of Exchequer to the present plaintiff's bill, referred to and incorporated in the plea in bar. ”

“ There are two parties, petitioners, before this court. 1. Janet Jones and Mary Poole, as heirs of John Aspden of London. 2. John A. Brown, administrator of John Aspden of London. To each there is a separate plea in bar.
1. The first petition is of two coheiresses of a decedent, widows. The decree pleaded is a decree of dismissal of the bill, Janet Jones, and Thomas Poole, and Mary, his wife, administrators of J. Aspden. Putting out of view, for the present, this character as administrators, can a decree against husband and wife be pleaded in bar to a bill by the wife surviving the husband? ”

“ No discussion of merits. The decrees of dismissal here pleaded were not on hearing, not on evidence, not on merits, but on default of peculiar nature, from extreme poverty of parties. This poverty is clearly proved.
The rule of conclusiveness of a foreign decree becomes technical in the extreme when thus applied, and courts are bound, before they apply it to the exclusion of meritorious claimants from a hearing, to see that every technical requisite exists. ”

“ Suit by husband and wife is suit of husband, and if bill be dismissed or decree made adverse to her interests, the wife may bring a fresh bill by her next friend. Wake v. Parker, 2 Keen, 73; Grant v. Vanshoonhoven, 9 Paige, 257; Duvall v. Covenhoven, 5 Paige, 581.
The husband, when he sues in right of his wife, must make her a party, but he sues for his own benefit, and he may release or assign his claim for a valuable consideration; and if a decree is made for the payment of money, or if the claim is otherwise reduced into possession, it will pass to his representatives. ”

“ Upon general principles, and upon a review of the equitable circumstances in favor of John Aspden of Lancashire, who stands in the place of the defendant, the plea in bar by the defendant to the plaintiff's petition ought to be sustained, and judgment rendered for the defendant. ”

“ I will now advert to some American authorities and cases, which speak the same language; and then again return to British authorities, and apply them both to the case at bar.
1. Where a bill in equity states certain things, and not sufficient proof is offered by complainant to sustain his allegation, the bill must be dismissed; so, if neither denied nor admitted, but complainant be left to his proof, the bill must be dismissed, if there be no proof at the rule day. ”

“ Rep. 464, it was held that a foreign judgment is equally conclusive as an English judgment; but that it, like all other judgments, may be set aside here in equity, for fraud, &c., and the Lord Chief Baron, at page 468, observes, that 'As the bill does not state under what circumstances the judgment was recovered, I must presume it was in respect of the same matters as are contained in the bill. Then, if so, it will be conclusive against the account sought. According to modern decisions, a foreign judgment is as conclusive against the debtor as an English one can be ”

“ The testator left no children, and different persons claimed to be the true devisee, within the description of 'heir at law.'
In 1828, Samuel Packer filed his bill against the executor Nixon, in the Circuit Court of the United States for the Eastern District of Pennsylvania, alleging that he, Packer, was the devisee, and praying the estate might be distributed to him. ”

“ A bill was filed for discovery, and also for a commission to take proof to impeach a foreign judgment rendered in favor of the present defendant, who was then a suitor in the Common Pleas to enforce that judgment. Upon demurrer by the defendant in equity, he argued, that, unless the foreign judgment can be questioned in England, and the grounds taken be such as would be a defence to an action on that judgment, the complainant's bill cannot be sustained. The vice-chancellor stated that the present defendant had recovered a judgment in Antigua, and complainant relies upon the case of Walker v. ”

“ But this statute in England and the act of Pennsylvania applies only to administration granted by these respective countries; neither relates to foreign letters. Bohun, Cur. Can. 186; Tourton v. Flower, 3 P. Wms. 369.
Lee v. Bank of England, 8 Vesey, 44. In this case Sir William Grant says, that the persons (executors) in America are not the personal representatives of the testator, within the meaning of the laws of this country. And this was where the executor refused to prove the will in England, the M. R. saying, if he refuses and is absent, you may have administration here. ”

“ Under this bill, numerous complainants came in by petition, erpresenting themselves to be the next of kin and the true devisees in I ennsylvania, and claiming parts of the estate; and in December, 1831, John Aspden, of the county of Lancashire, England, was admitted to come in as co-complainant, he claiming to be the rightful heir at law and devisee of Matthias Aspden. ”

“ See bond required of an executor of non-resident testator in Pennsylvania, which applies only to assets within the Commonwealth, act of 1832, § 15. Purd. 913.
They are not, then, in law, the same parties.
Nor are they privies. Adams v. Savage, Salkeld, 40.
Administrator in Devonshire cannot have sci. fa. on a judgment in Westminster. Higgins v. York Buildings Company, 2 Atkyns, 44.
Beames's Pleas, 300, administrator de bonis non cannot revive a bill filed by a former administrator, because there is no privity between them. Story's Conflict, § 522, p. 436; Tallmage v. Chappel, 16 Mass. ”

“ And each must account to, and are responsible only for, the assets within the State, province, or diocese which appoints them.
1. They cannot affect these assets by suit. Borden v. Borden, 5 Mass. R. 77; Pond v. Makepeace, 2 Metcalf, 114; judgment recovered by a Rhode Island administrator in Massachusetts, and an execution returned satisfied. Still this judgment was no plea in an action for same debt by the Massachusetts administrator, because that debt was bona notabilia in Massachusetts. (See cases referred to at p. 117.)
The same rule prevails in England. 1 Dowl. ”