#### *Phillip Dougherty et al. vs. Samuel S. Mills, administrator of Constantine Dougherty.*

Defendant’s intestate was domiciled in Florida, but died in this State, when on a visit here, leaving assets both in Florida and in this State. Defendant, as administrator of the intestate in South Carolina, was possessed of a note drawn by a person residing in Florida; the note was paid by thé drawer to the administrator in Florida, and the defendant, upon being informed of the payment, gave up the note to the drawer. Before the payment, defendant had had an opportunity of suing and arresting the drawer whilst on a visit to this State, but had neglected to do so. *Held,*that the defendant was not liable to the *distributees*of the intestate for the amount of the note.

*Before*Johnson, Ch. *at Charleston, June,*1844.

*By the Chancellor.*The defendant’s intestate, who was resident in St. Augustine, East Florida, died in this city when on a visit here in 1834, leaving assets both here and in St. Augustine. Administration of his assets found here was granted to the defendant, and administration of those found in St. Augustine was committed, by the proper authorities there, to one Charles Downing. The complainants claim as heirs of the intestate, and the bill prays an account from the defendant of the assets which came to his possession.

Not long before the death of the intestate, he being indebted to the defendant, by way of collateral security assigned him a note for two thousand dollars, dated 1st January, 1834, and payable two years after date, drawn by one V. Sanchez, and" made payable to himself, which remained in defendant’s hands at the death of the intestate. The debt due by intestate to defendant was satisfied out of other assets which came to his hands to be administered; and the only question in the case is, whether the defendant, although he has not received the mQney, is bound to account to the complainants for the amount of Sanchez’s note, as part of the assets of the estate.

At the time of making the note, Sanchez resided in St. Augustine, and continued to reside there until the matter of the note was settled in the manner hereinafter stated, but he had, in the mean time, (1837) once visited this city, and the defendant neglected to take any legal steps to recover the money here.

In 1838, he again visited this city, and brought with him a *336receipt in full for the amount of the note from Downing, the administrator in St. Augustine, and an order from him requesting the defendant to deliver the note to Sanchez, which defendant accordingly did.

The defendant has satisfactorily accounted for all the other assets of the estate which came to his hands to be administered, and the only question now is, whether he is liable for Sanchez’s note, on the ground of his neglecting to collect it.

That Downing was entitled to recover the money due on the note, cannot admit of a question. The administration had been committed to him by the proper authorities .of the domicil of the intestate, and the debtor resided there. Now it is clear that the defendant could not, as administrator, maintain an action there against Sanchez, nor could any one else except Downing, and no one will question that he might, and was, therefore, entitled to receive the money. This conclusion is opposed, on the assumption that the note itself constituted *bona notabilia,*or assets in the hands of the defendant, but that cannot be supported. The paper, itself, is of no value, except as furnishing the evidence of debt.

The debt itself constitutes *bona notabilia,*and is identified with the person of the debtor, and exists only where he is found. A different rule seems to prevail in England, in regard to bond and other specialty debts, on the ground that on account of their greater solemnity they are supposed to possess an intrinsic value of themselves; 1 Williams’s Ex’ors. 193. But then every diocese had jurisdiction over the *bona notabilia*found within it, and the rule was laid down to regulate these jurisdictions, and cannot apply to a foreign State.

But the complainants might be answered by asking what injury they have sustained by the defendant neglecting to sue Sanchez when here ? The fund has gone into the hands of Downing, who, as before shown, was entitled to receive it, and who is responsible, in the first place, to the creditors of the intestate, if it is wanted for the *payment of*debts, and *if not,*then to the complainants, and for any thing that appears here, he is equally able to meet that responsibility. And why, it may be asked, do the complainants seek to charge the defendant, who, it is conceded, never received the money, and forbear to sue Downing, who has, and who is unquestionably liable? The complainants will find it difficult to give a satisfactory response to this question.

*337But the case stands, if possible, on still stronger grounds. A debtor of the intestate residing within the jurisdiction of the domicil, will be protected in paying the debt to a foreign administrator, (see 11 Mass. Rep. 256, and 2 Yes. 35) for the obvious reason that either is entitled to receive it, and *a*priori, it will be supposed that one is as capable to administer it as the other. Sanchez refused to pay the debt voluntarily, and the only means which the defendant had to enforce it, was by action at law. If he had sued, the payment of the money to Downing would have been a good bar, according to the rule. If he had obtained judgment, thére was nothing here out of which he could have obtained satisfaction, and he would have been driven to the necessity of bringing suit on it in Florida to recover it. The, money was not wanted here for any specific purpose, the debts here having all been paid, and it may well be doubted whether the administrator there would not have been entitled to have it irnpounded to answer any demands there against the intestate.

One fact of negligence charged against the defendant is, his neglect to arrest Sanchez, and hold him to bail when he was on a visit here ; and it is true that he might, by this means, have had the debt secured by the bail or the body of the debtor, and if the debt had been lost by his not doing it, he might have been culpable; but the money has not been lost, it is in the hands of Downing, who was entitled to receive it.

But it is said, that as the assignee or indorsee of the note, the defendant might have sued Sanchez in his own name in Florida, and in that way have recovered the money, and that his neglect to do so was negligence. That, however, was an assignment for a special object, the securing the debt due by the intestate to the defendant, and that having been paid, the note belonged to the estate, and certainly the defendant was not bound to greater diligence in the collection than he would have been in the collection of the other debts due the intestate.

It is, therefore, ordered and decreed, that the complainants’s bill be dismissed with costs.

The complainants appealed, on the following grounds.

1. Because the possession of the note by Mills, was sufficient to make him liable for the same.

2. Because although the note in the hands of Mills may have been assets of the intestate, to be applied to the payment of debts in Florida, yet when there was no proof of indebtedness in *338Florida, his surrender of the note was sufficient to make him liable for the same.

3. Because there was no evidence that the note had ever been paid *bona*fide; and his Honor erred in supposing that this was a case where the complainants had any other remedy than in this court, inasmuch as the testimony shows that Downing is dead and utterly insolvent.

*A. G. Magrath,*for the appellants,

cited 5 Stat. 108; 1 Salk. 296; 1 Mason, 421; Story Confl. L. 421 ; lb. 7; 2 Pet. 586; 2 McC. 331; 3 Pick. 126 ; 12 Mod. 573; 2 Bro. Ch. 156 ; Story Confl. L. 431, note 3, 424-5, 438; 11 Mass. R. 256; 1 Mason, 415 ; 3 Dyer, 305 ; 5 Mason, 109 ; 6 John. Ch. 356 ; 7 lb. 45.

*Memminger,*contra,

cited 1 M. *&*C. 80; 13 Cond. Eng. Ch. R. 304; P. L. 201 ; Story Confl. L. §518, §513, note 2, §514, p. 425, note 3 ; 11 Mass. R. 256, 263; 2 Atk. 63; 5 Mason, 108 ; ■ 6 Johns. Ch. 353 ; Wms. Exors. 193; 1 Saund. R. 274, note 3.

*Curia, per*Johnson-, Ch.

The court concur in the decree of the circuit court, but the argument here has given to the case a degree of importance which makes some further notice of it necessary.

It is not doubted that the administration of the estate of a deceased person properly belongs to the jurisdiction of his domicil, but if his *bona notabilia*lie in a foreign country, administration there, also, is necessary, for although the law of the domicil will govern every where, in the distribution of his estate amongst those entitled by law, after the payment of debts, yet he may be indebted where the *bona notabilia*are found, and one State is not bound to enforce the laws of another, to the injury of its own citizens, and that would be the effect, if the administrator of the domicil was permitted to carry the assets out of the jurisdiction where they are found, and compel creditors to follow him. Hence,- the rule that an executor or administrator cannot maintain an action out of the jurisdiction from whence he derived his authority. This is a right of which all States are tenacious. In *Kennedy vs. Edioards,*the intestate *was domiciled*and died in this State, leaving personal effects here, and amongst other things, some negroes. After his death, they were taken into North Carolina, where administration was obtained and the negroes sold. Many years after, the defendant, . who claimed under the purchase from the administrator, brought *339them into this State. The plaintiff then obtained administration here, and brought his action of trover to recover the negroes, and it was held-that the action well lay, on the ground that carrying them out of the State was a fraud upon the rights of the persons here, who were entitled to the property. The case of *Carmichael vs. Ray,*decided at the sittings of the law court of appeals in Columbia, in December last,* went on the same principle. There, the intestate was domiciled and died in this State, and administration of his estate was granted here. He owned a negro, who was, at the time of his death, in possession of the defendant in North Carolina, and coming into this State, the plaintiff brought trover against him for the negro, who still remained in North Carolina, and it was held that the action would not lie. It is the true policy of the States not to suffer the effects of a deceased person to be removed out of their jurisdiction, until at least the demands of the creditors are satisfied,, and rather than suffer it, they undertake, in the distribution of the estate, to enforce the laws of the domicil; but where nothing remains but the distribution, and the estate is in the form of money, or other articles easy of transportation, I can see no reason why it should not be remitted to the administrator of the domicil. On the contrary, there would seem to be great propriety in it. Every State has a right to make its own laws, and its own judicatories are supposed to understand them better than those of a foreign State, where they must be proved as any other matter of fact. The distributees have, however, the right to claim the distribution in the jurisdiction where the assets are found. The remarks of Ch. J. Parker, in *Daves vs. Head,*3 Pick. 128, are very aposite to this question. In speaking of the conflicting rights of a domestic and foreign administration, he lays it down as a well settled general rule, that the assets collected in a foreign jurisdiction, should be remitted to the administrator of the domicil, and if any part is retained for distribution, it will be only by virtue of an exception to the rule, or because the parties interested seek it in the foreign jurisdiction, and in that case, it might be in the legal discretion of the court to order distribution, or to remit it, according to the circumstances or the condition of the estate ; (see Story Confl. L. §512) and there is no question that circumstances might exist, which would imperiously require that it should be remitted. If there were *340no creditors claiming in the foreign jurisdiction, and the assets were in the form of money, it might be wanted in the jurisdiction of the domicil to pay pressing demands, or to save the sacrifice of other property by a forced sale, which would operate as an injury to some or all of the parties interested.

Having thus shown that, if the defendant here had collected these funds, the court might, in its discretion, have ordered them to be remitted to Downing, the administrator in Florida, for distribution, Sanchez was justifiable in paying it to him.

Appeal dismissed.

Harper and Dunkin, CC. concurred.

1

 Richardson’s Rep. 116