STORY. Circuit .Tustice.
The case presented by this voluminous bill may be thus briefly stated. Carter purchased of the defendants and one Henry L. Wiggin seventeen thirty-second parts of a certain township of land, in Maine, viz. seven thirty-second parts of Treadwell, three thirty-second parts of Haven, and seven thirty-second parts of Wiggin; and the vendors covenanted to procure a conveyance of the remaining fifteen thirty-second parts from the other owners to Carter, and who was to pay therefor at the rate of one dollar per thousand feet for all the good merchantable pine timber on the township, to be ascertained by the report of certain persons to be appointed by the vendors, and Carter was to pay in cash a part of the consideration money, and give a bond for the due fulfilment of the other terms of the sale; and the vendors covenanted to perform their part of the agreement, or to pay Carter $55.000. The bond was accordingly executed. The appraisers were appointed and duly made their report, estimating the amount of the timber at 195,-850.000 feet of good merchantable pine timber. Carter conveyed to certain persons eleven sixteenth parts of his purchase, and among others to Seth R. Adams, the intestate, one sixteenth thereof; the parties to whom the same were conveyed being the sureties upon his (Carter’s) bond. Adams afterwards entered into an agreement with Treadwell and Haven, by which he agreed to pay them for his one sixteenth part of the township at the rate of seven and a half dollars per acre, one fourth part in money, and the residue in three equal annual in-stalments, and give his notes therefor. This was accordingly done; and Treadwell gave Adams a bond to convey the one sixteenth part of the township upon the full payment of all the instalments. Adams afterwards paid large sums of money to Treadwell and Haven on his notes. Adams afterwards died, leaving his estate Insolvent; Carter took ad-minisiration upon his estate .and made a settlement with"' Treadwell and Haven of their demand, by which he agreed to surrender up to them their bond, and they agreed to surrender to him the notes then held by them against Adams’ estate, and their demands were accordingly assigned in favor of Adams’ widow.
The bill alleges, that, in point of fact, there was a gross error and mistake in the appraisers in their estimate of the pine timber in the township, there not being half that quantity thereon: that Adams in making and completing his bargain with Treadwell and Haven was not aware of the mistake and error, and, in fact, was induced to make that bargain by the gross deception and misrepresentations of one Scribner, who was acting in confederacy with Treadwell and Haven. The bill further alleges, that Carter. at the time of his settlement with Tread-well and Haven, was not aware of the mistake and error of the appraisers, or of the deception and misrepresentations of Scribner; and it insists that the bargain of Adams, and his own settlement with Treadwell and Haven, ought on these accounts to be set aside and rescinded, and the money paid by Adams recovered back by him as administrator. The bill does not state any case for relief to Carter himself upon his original bargain and purchase. It is under these circumstances, that the plea and demurrer have been put in to the bill. And first as to the pica. It asserts that Carter is not administrator of Adams, as alleged in the bill. In point of fact. Carter has been appointed administrator of Adams, who was a citizen of Maine at his death, by the proper court in Maine; but at the time of filing his bill he had not taken out administration in New Hampshire, where the defendants live, and where the bill is brought, although adminis[227]*227tration lias, since the pendency of the hill, been duly obtained by him in New Hampshire.
The first question then is, whether the plea is good; and it having been set down for argument by the plaintiff, he thereby admits it to be true in point of fact, and the only remaining ground for consideration is, whether it is valid in point of law. Upon general principles, there is no doubt that. It is valid, unless there is something in the laws of New Hampshire which varies the known rule, that to entitle a party to recover a debt or assert a claim as administrator against a person resident in another state than that where the intestate was domiciled at his death, it is essential that he should have obtained letters of administration in the state where he seeks to recover the debt or to assert the claim. In the present case, there is no difficulty in Carter’s maintaining a suit in the circuit court as a citizen of Maine, in his character of administrator of Adams, if he should take letters of administration in New Hampshire. This has been supposed to be fully established ever since the case of Chappedelaine v. Dechenaux, 4 Cranch [8 U. S.] 306; and therefore one inconvenience supposed in the argument at the bar is removed. But it is said that by a recent statute of New Hampshire (Rev. St. N. H. 320) a different rule is prescribed. That statute provides, “that any person interested in the estate of any person deceased, may commence an action as administrator thereof, which shall not be abated, nor the attachment lost by reason, that such person is not administrator thereof, nor by his decease, if the administrator then or afterwards appointed, shall at the first or second term of the court endorse the writ, and prosecute the same as plaintiff.” Rev. St. X. H. 1842, p. 320, tit. 19, c. 101, § 10. It is plain from the language of this statute, that it is solely apjfiicable to suits at law, and not applicable to suits in equity. It is as plain, that it is addressed to the state courts, and to the state courts only, and can in no respect be admitted to govern the practice or proceedings in the courts of the United States even in suits at law, unless specially adopted in practice by those courts; and a fortiori it can have no bearing upon the practice and proceedings thereon in suits in equity. It might furnish an analogy by which, possibly, the courts of the United States might seek in a fit case to regulate their own discretion; but it can furnish no rule to govern them. The statute, therefore, does not avoid or surmount the difficult}'; and the plea remains, with all its original relevancy and force, as a bar to the suit under existing circumstances.
As to the demurrer to the residue of the bill, viz. that, which respects Carter’s claim in his own individual and personal right, it seems to me that it is fully sustained. There are various objections to it, which seem to me strong and decisive. In the first place it seems to me, that the bill is open to the objection of multifariousness in mixing up an independent claim of Carter in his own right with the transactions of Adams with the defendants, with which he had nothing to do, except in his capacity as administrator. What has Carter, individually and personally, to do with the negotiation and arrangement by which as administrator of Adams he surrendered up the bond and can-celled the notes given by Adams to the defendants? The very groundwork of his bill, to which his prayer for relief is directly applied, is to recover and receive back from the defendants the monies paid to them by Adams, which monies, of course, must be recoverable and receivable only in autre droit, as the administrator of Adams. Carter can have no right to mix up his own personal claims on the defendants, if any, in the original purchase of the township with that of Adams under other contracts, and arrangements, subsequently made -without any co-operation or connexion with Carter.
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STORY. Circuit .Tustice.
The case presented by this voluminous bill may be thus briefly stated. Carter purchased of the defendants and one Henry L. Wiggin seventeen thirty-second parts of a certain township of land, in Maine, viz. seven thirty-second parts of Treadwell, three thirty-second parts of Haven, and seven thirty-second parts of Wiggin; and the vendors covenanted to procure a conveyance of the remaining fifteen thirty-second parts from the other owners to Carter, and who was to pay therefor at the rate of one dollar per thousand feet for all the good merchantable pine timber on the township, to be ascertained by the report of certain persons to be appointed by the vendors, and Carter was to pay in cash a part of the consideration money, and give a bond for the due fulfilment of the other terms of the sale; and the vendors covenanted to perform their part of the agreement, or to pay Carter $55.000. The bond was accordingly executed. The appraisers were appointed and duly made their report, estimating the amount of the timber at 195,-850.000 feet of good merchantable pine timber. Carter conveyed to certain persons eleven sixteenth parts of his purchase, and among others to Seth R. Adams, the intestate, one sixteenth thereof; the parties to whom the same were conveyed being the sureties upon his (Carter’s) bond. Adams afterwards entered into an agreement with Treadwell and Haven, by which he agreed to pay them for his one sixteenth part of the township at the rate of seven and a half dollars per acre, one fourth part in money, and the residue in three equal annual in-stalments, and give his notes therefor. This was accordingly done; and Treadwell gave Adams a bond to convey the one sixteenth part of the township upon the full payment of all the instalments. Adams afterwards paid large sums of money to Treadwell and Haven on his notes. Adams afterwards died, leaving his estate Insolvent; Carter took ad-minisiration upon his estate .and made a settlement with"' Treadwell and Haven of their demand, by which he agreed to surrender up to them their bond, and they agreed to surrender to him the notes then held by them against Adams’ estate, and their demands were accordingly assigned in favor of Adams’ widow.
The bill alleges, that, in point of fact, there was a gross error and mistake in the appraisers in their estimate of the pine timber in the township, there not being half that quantity thereon: that Adams in making and completing his bargain with Treadwell and Haven was not aware of the mistake and error, and, in fact, was induced to make that bargain by the gross deception and misrepresentations of one Scribner, who was acting in confederacy with Treadwell and Haven. The bill further alleges, that Carter. at the time of his settlement with Tread-well and Haven, was not aware of the mistake and error of the appraisers, or of the deception and misrepresentations of Scribner; and it insists that the bargain of Adams, and his own settlement with Treadwell and Haven, ought on these accounts to be set aside and rescinded, and the money paid by Adams recovered back by him as administrator. The bill does not state any case for relief to Carter himself upon his original bargain and purchase. It is under these circumstances, that the plea and demurrer have been put in to the bill. And first as to the pica. It asserts that Carter is not administrator of Adams, as alleged in the bill. In point of fact. Carter has been appointed administrator of Adams, who was a citizen of Maine at his death, by the proper court in Maine; but at the time of filing his bill he had not taken out administration in New Hampshire, where the defendants live, and where the bill is brought, although adminis[227]*227tration lias, since the pendency of the hill, been duly obtained by him in New Hampshire.
The first question then is, whether the plea is good; and it having been set down for argument by the plaintiff, he thereby admits it to be true in point of fact, and the only remaining ground for consideration is, whether it is valid in point of law. Upon general principles, there is no doubt that. It is valid, unless there is something in the laws of New Hampshire which varies the known rule, that to entitle a party to recover a debt or assert a claim as administrator against a person resident in another state than that where the intestate was domiciled at his death, it is essential that he should have obtained letters of administration in the state where he seeks to recover the debt or to assert the claim. In the present case, there is no difficulty in Carter’s maintaining a suit in the circuit court as a citizen of Maine, in his character of administrator of Adams, if he should take letters of administration in New Hampshire. This has been supposed to be fully established ever since the case of Chappedelaine v. Dechenaux, 4 Cranch [8 U. S.] 306; and therefore one inconvenience supposed in the argument at the bar is removed. But it is said that by a recent statute of New Hampshire (Rev. St. N. H. 320) a different rule is prescribed. That statute provides, “that any person interested in the estate of any person deceased, may commence an action as administrator thereof, which shall not be abated, nor the attachment lost by reason, that such person is not administrator thereof, nor by his decease, if the administrator then or afterwards appointed, shall at the first or second term of the court endorse the writ, and prosecute the same as plaintiff.” Rev. St. X. H. 1842, p. 320, tit. 19, c. 101, § 10. It is plain from the language of this statute, that it is solely apjfiicable to suits at law, and not applicable to suits in equity. It is as plain, that it is addressed to the state courts, and to the state courts only, and can in no respect be admitted to govern the practice or proceedings in the courts of the United States even in suits at law, unless specially adopted in practice by those courts; and a fortiori it can have no bearing upon the practice and proceedings thereon in suits in equity. It might furnish an analogy by which, possibly, the courts of the United States might seek in a fit case to regulate their own discretion; but it can furnish no rule to govern them. The statute, therefore, does not avoid or surmount the difficult}'; and the plea remains, with all its original relevancy and force, as a bar to the suit under existing circumstances.
As to the demurrer to the residue of the bill, viz. that, which respects Carter’s claim in his own individual and personal right, it seems to me that it is fully sustained. There are various objections to it, which seem to me strong and decisive. In the first place it seems to me, that the bill is open to the objection of multifariousness in mixing up an independent claim of Carter in his own right with the transactions of Adams with the defendants, with which he had nothing to do, except in his capacity as administrator. What has Carter, individually and personally, to do with the negotiation and arrangement by which as administrator of Adams he surrendered up the bond and can-celled the notes given by Adams to the defendants? The very groundwork of his bill, to which his prayer for relief is directly applied, is to recover and receive back from the defendants the monies paid to them by Adams, which monies, of course, must be recoverable and receivable only in autre droit, as the administrator of Adams. Carter can have no right to mix up his own personal claims on the defendants, if any, in the original purchase of the township with that of Adams under other contracts, and arrangements, subsequently made -without any co-operation or connexion with Carter. In the next place, the bill states no case whatsoever for setting aside or can-celling the original contract of purchase with the defendants and Wiggin; and if it did, it would be fatally defective, unless Wiggin were made a party thereto, (which he is not,) or a sufficient ground were shown why he was not or could not be made a party; if indeed in such a case it were practicable to proceed without making him a party; upon which I give no opinion. In the next place, to such a bill, seeking to set aside and cancel the original contract, Scribner and Hanson, and Spaulding, and Pierce, and Littlefield, if not the widow, or heirs of Adams, seem to be necessary parties, and ought not to be dispensed with. In the next place, the bill, for such a purpose, is far too loose and defective, and general in its averments, to make out a case to set aside the original purchase or cancel it. No fraud or intentional misrepresentation is positively or directly alleged on the part of the vendors, or of the appraisers of the pine timber. It is simply and nakedly stated, that the appraisers acted under a mistake of the real amount of the pine timber in the township. But how this mistake occurred, whether it was any thing more than an over estimate made in the exercise of a fair and sound judgment, or whether it was by fraud or circumvention, or imposition or design, is not pointedly put in the bill. The court is left to grope its way in the dark on this, the very gist of the bill, and involving all its merits. Surely it will not be contended, that any mistake, however small, or accidental, or honest on the part of the appraisers, the chosen judges selected by the parties themselves for this very purpose, would justify the court in rescinding the original purchase. That would [228]*228be to defeat tlie very oli.iect and intent of the parties in selecting the “good judges” to make the appraisement. For these reasons, and others might be added, it appears to me that the demurrer ought to be allowed.
But the plaintiff asks, in the event that the court should sustain the plea and-demurrer, that he may be allowed to amend his bill. From what has been already suggested, it appears to me, that the truest and best course is to have the bill dismissed without prejudice, instead of attempting to amend it in such a manner as to make it efficient. Indeed, two bills will be necessary, if Carter persists in his own individual claim, one for that claim, and one in his capacity as administrator, for the claim of Adams. I think, therefore, that the present bill ought to be dismissed, with costs, but without prejudice to any other bill or bills, which the plaintiff may be advised to bring in this court.