LENDER, contracts. He from whom a thing is borrowed.
2. The contract of loan confers rights, and imposes duties on the lender. 1. The lender has the right to revoke the loan at his mere pleasure; 9 Cowen, R. 687; 8 Johns. Rep. 432; 1 T. R. 480; 2 Campb. Rep. 464; and is deemed the owner or proprietor of the thing during the period of the loan; so that au action for a trespass or conversion will lie in favor of the lender against a stranger, who has obtained a wrongful possession, or has made a wrongful conversion of the thing loaned; as mere gratuitous permission to a third person to use a chattel does not, in contemplation of the common law, take it out of the possession of the owner. 11 Johns. Rep. 285; 7 Cowen, Rep. 753; 9 Cowen, Rep. 687; 2 Saund. Rep. 47 b; 8 Johns. Rep. 432; 13 Johns. Rep. 141, 661; Bac. Abr. Trespass, c 2; Id. Trover, C 2. And in this the Civil agrees with the common law. Dig. 13, 6, 6, 8; Pothier, PrÇt Ö, Usage, ch. 1, 1, art. 2, n. 4; art. 3, n. 9; Ayliffe's Pand. B. 4, t. 16, p. 517; Domat, B. 1, t. 5, 1, n. 4; and so does the Scotch law. Ersk. Pr. Laws of Scotl. B. 3, t. 1 8.
3. - 2. In the civil law, the first obligation on the part of the lender, is to suffer the borrower to use and enjoy the thing loaned during the time of the loan, according to the original intention. Such is not the doctrine of the common law. 9 Cowen, Rep. 687. The lender is obliged by the civil law to reimburse the borrower the extraordinary expenses to which he has been put for the preservation of the thing lent. And in such a case, the borrower would have a lien on the thing, and may detain it, until these extraordinary expenses are paid, and the lender cannot, even by an abandonment of the thing to the borrower, excuse himself from re-payment, nor is he excused by the subsequent loss of the thing by accident, nor by a restitution of it by the borrower, without insisting upon repayment. Pothier, PrÇt Ö Usage, ch. 3, n. 82, 83; Dig. 13, 6, 18, 4; Ersk. Pr. Laws of Scotl. B. 3, t. 1, 9. What would be decided at common law does not seem very clear. Story on Bailm. 274. Another case of implied obligation on the part of the lender by the civil law is, that he is bound to give notice to the borrower of the defects of the thing loaned; and if he does not and conceals them, and any injury occurs to the borrower thereby, the lender is responsible. Dig. 13, 6, 98, 3; Poth. PrÇt Ö Usage, n. 84; Domat, Liv. 1, t. 5, s. 3, n. 3. In the civil law there is also an implied obligation on the part of the lender where the thing has been lost by the borrower, and after he has paid the lender the value of it, the thing has been restored to the lender; in such case the lender must return to the borrower either the price or thing. Dig. 13, 6, 17, 5; Poth. Id. n. 85. "The common law seems to recognize the same principles, though," says Judge Story, Bailm. 276, "it would not perhaps be easy to cite a case on a gratuitous loan directly on the point." See Borrower; Commodate; Story, Bailm. ch. 4; Domat. Liv. 2, tit. 5; 1 Bouv. Inst. n. 1078, et seq.
LESION, contracts. In the civil law this term is used to signify the injury suffered, in consequence of inequality of situation, by one who does not receive a full equivalent for what he gives in a commutative contract.
2. The remedy given for this injury, is founded on its being the effect of implied error or imposition; for in every commutative contract, equivalents are supposed to be given and received. Louis. Code, 1854. Persons of full age, however, are not allowed in point of law to object to their agreements as being injurious, unless the injury be excessive. Poth. Oblig. P. 1, c. 1, s. 1, art. 3, 4. But minors are admitted to restitution, not only against any excessive inequality, but against any inequality whatever. Poth. Oblig. P. 1, c. 1, s. 1, art. 3, 5; Louis. Code, art. 1858.
3. Courts of chancery relieve upon terms of redemption and set aside contracts entered into by expectant heirs dealing for their expectancies, on the ground of mere inadequacy of price. 1 Vern. 167; 2 Cox, 80; 2 Cas. in Ch. 136; 1 Vern. 141; 2 Vern. 121; 2 Freem. 111; 2 Vent. 359; 2 Vern. 14; 2 Rep. in Ch. 396; 1 P. W. 312; 1 Bro. C. C. 7; 3 P. Wms. 393, n.; 2 Atk. 133; 2 Ves. 125; 1 Atk. 301; 1 Wils. 286; 1 Wils. 320; 1 Bro. P. 6. ed. Toml. 198; 1 Bro. C. C. 1; 16 Ves. 512; Sugd. on Vend. 231, n. k.; 1 Ball & B. 330; Wightw. 25; 3 Ves. & Bea. 117; 2 Swanst. R. 147, n.; Fonb. notes to the Treatise of Equity, B, 1, c. 2, s. 9. A contract cannot stand where the party has availed himself of a confidential situation, in order to obtain some selfish advantage. Note to Crowe v. Ballard. 1 Ves. jun. 125; 1 Hov. Supp. 66, 7. Note to Wharton v. May. 5 Ves. 27; 1 Hov. Supp. 378. See Catching bargain; Fraud; Sale.
LESSEE. He to whom a lease is made. The subject will be considered by taking a view, 1. Of his rights. 2. Of his duties.
2. - 1. He has a right to enjoy the premises leased for the term mentioned in the lease, and to use them for the purpose agreed upon. He may, unless, restrained by the covenants in the lease, either assign it, or underlet the premises. 1 Cruise, Dig. 174. By an assignment of the lease is meant the transfer of all the tenant's interest in the estate to another person; on the contrary, an underletting is but a partial transfer of the property leased, the lessee retaining a reversion to himself.
3. - 2. The duties of the lessee are numerous. First, he is bound to fulfil all express covenants he has entered into in relation to the premises leased; and, secondly, he is required to fulfil all implied covenants, which the relation of lessee imposes upon him towards the lessor. For example, he is bound to put the premises to no other use than that for which it was hired; when a farm is let to him for common farming purposes, he cannot open a mine and dig ore which may happen to be in the ground; but if the mine has been opened, it is presumed both parties intended it should be used, unless the lessee were expressly restrained; 1 Cruise, Dig. 132. He is required to use the property in a tenant-like and proper manner; to take reasonable care of it and to restore it at the end of his term, subject only to the deterioration produced by ordinary wear and the reasonable use for which it was demised. 12 M. & W. 827. Although he is not bound, in the absence of an express covenant, to rebuild in case of destruction by fire or other accident, yet he must keep the house in a habitable state if he received it in good order. See Repairs. The lessee is required to restore the property to the lessor at the end of the term.
4. The lessee remains chargeable, after an assignment of his term, as before, unless the lessor has accepted the assignee; and even then he continues liable in covenant on an express covenaut, as for repairs, or to pay rent; 2 Keb. 640; but not for the performance of an implied one, or, as it is usually termed, a covenant in law. By the acceptance, he is discharged from debt for arrears of future rent. Cro. Jac. 309, 334; Ham. on Parties, 129, 130. Vide Estate for years; Lease;, Notice to quit: Tenant for years; Underlease.
LESSOR. contr. He who grants a lease. Civ. Code of L. art. 2647.
LESTAGE, Eng: law. Duties paid for unlading goods in port. Harg. L. Tr. 75.
LET. Hinderance, obstacle, obstruction; as, without let, molestation or hinderance.
TO LET. To hire, to lease; to grant the use and possession of something for a compensation.
2. This term is applied to real estate and the words to hire are more commonly used when speaking of personal estate. See Hire, Hirer, and Letter.
3. Letting is very similar to selling; the difference consists, in this; that instead of selling the thing itself, the letter sells only the use of it.
LETTER, com. law, Crim. law. An epistle; a despatch; a written message, usually on paper, which is folded up and sealed, sent by one person to another.
2. A letter is always presumed to be sealed, unless the presumption be rebutted. 1 Caines, R. 682. 1
3. This subject will be considered by 1st. Taking a view of the law relating to the transmission of letters through the post office; and, 2. The effect of letters in making contracts. 3. The ownership of letters sent and received.
4. - 1. Letters are, commonly sent through the post office, and the law has carefully provided for their conveyance through the country, and their delivery to the persons to whom they are addressed. The act to reduce into one the several acts establishing and regulating the post office department, section 21, 3 Story's Laws United States, 1991, enacts, that if any person employed in any of the departments of the post office establishment, shall unlawfully detain, delay, or open, any letter, packet, bag, or mail of letters, with which he shall be entrusted, or which shall have come to his possession, and which are intended to be conveyed by post or, if any such person shall secrete, embezzle, or destroy, any letter or packet entrusted to such person as aforesaid, and which shall not contain any security for, or assurance relating to money, as hereinafter described, every such offender, being thereof duly convicted, shall, for every such offence, be fined, not exceeding three hundred dollars, or imprisoned, not exceeding six months, or both, according to the circumstances and aggravations of the offence. And if any person, employed as aforesaid, shall secrete, embezzle, or destroy any letter, packet, bag, or mail of letters, with which he or she shall be entrusted, or which shall have come to his or her possession, and are intended to be conveyed by post, containing any bank nots, or bank post bill, bill of exchange, warrant of the treasury of the United States, note of assignment of stock in the funds, letters of attorney for receiving annuities or dividends, or for, selling stock in the funds, or for receiving the interest thereof, or any letter of credit, or note for, or relating to, payment of moneys or any bond, or warrant, draft, bill, or promissory note, covenant, contract, or agreement whatsoever, for, or relating to, the payment of money, or the delivery of any article of value, or the performance of any act, matter, or thing, or any receipt, release, acquittance, or discharge of, or from, any debt; covenant, or demand, or any part thereof, or any copy of any record of any judgment or decree, in any court of law or chancery, or any execution which way may have issued thereon; or any copy of any other record, or any other article of value, or any writing representing the same or if any such person, employed as aforesaid, shall steal, or take, any of the same out of any letter, packet, bag, or mail of letters, that shall come to his or her possession, such person shall, on conviction for any such offence, be imprisoned not less than ten years, nor exceeding twenty-one years; and if any person who shall have taken charge of the mails of the United States, shall quit or desert the same before such person delivers it into the post office kept at the termination of the route, or some known mail carrier, or agent of the general post office, authorized to receive the same, every such person, so offending, shall forfeit and pay a sum not exceeding five hundred dollars, for every such offence; and if any person concerned in carrying the mail of the United States, shall collect, receive, or carry any letter, or packet, or shall cause or procure the same to be done, contrary, to this act, every such offender shall forfeit and pay for every such offence a sum, not exceeding fifty dollars.
5. - 2. Most contracts may be formed by correspondence; and cases not unfrequently arise where it is difficult to say whether the concurrence of the will of the contracting parties took place or not. In order to form a contract both parties must concur at the same time, or there is no agreement. Suppose, for example, that Paul of Philadelphia, is desirous of purchasing a thousand bales of cotton, and offers by letter to Peter of New Orleans, to buy them from him at a certain price; but on the next day he changes his mind, and then he writes to Peter that he withdraws his offer; or on the next day he dies; in either case, there is no contract, because Paul did not continue in the same disposition to buy the cotton, at the time that his offer was accepted. The precise moment when the consent of both parties is perfect, is, in strictness, when the person who made the offer becomes acquainted with the fact that it has been accepted. But this may be presumed from circumstances. The acceptance must be of the same precise terms without any variance whatever. 4 Wheat. 225; see 1 Pick. 278; 10 Pick. 326; 6 Wend. 103.
6. - 3. A letter received by the person to whom it is directed, is the qualified property of such person: but where it is of a private nature, the receiver has no right to publish it without the consent of the writer, unless under very extraordinary circumstances; as, for example, when it is requisite to the defence of the character of the party who received it. 2 Ves. & B. 19; 2 Atk. 542; Amb. 737; 1 Ball. & B. 207; 1 Mart. (Lo.) R. 297; Denisart, verbo Lettres Missives. Vide Dead Letter; Jeopardy; Mail; Newspaper; Postage; Post Master General.
LETTER, contracts. In the civil law, locator, and in the French law, locateur, loueur, or bailleur, is he who, being the owner of a thing, lets it out to another for hire or compensation. See Hire; Locator; Conductor; Story on Bailm. 369.
2. According to the French and civil law, in virtue of the contract, the letter of a thing to hire impliedly engages that the hirer shall have the full use and enjoyment of the thing hired, and that he will fulfil his own engagements and trusts in respect to it, according to the original intention of the parties. This implies an obligation to deliver the thing to the hirer; to refrain from every obstruction to the use of it by the hirer during the period of the bailment; to do no act which shall deprive the hirer of the thing; to warrant the title and possession to the hirer, to enable him to use the thing or to perform the service; to keep the thing in suitable order and repair for the purpose of the bailment; and finally to warrant the thing from from any fault inconsistent with the use of it. These are the main obligations deduced from the nature of the contract, and they seem generally founded on unexceptionable reasoning. Pothier, Louage, n. 53; Id. n. 217; Domat, B. 1, tit. 4, 3 Code Civ. of L. tit. 9, c. 2, s. 2. It is difficult to say how far (reasonable as they are in a general sense) these obligations are recognized in the common law. In some respects the common law certainly differs. See Repairs; Dougl. 744, 748; 1 Saund. 321, 32e, and ibid. note 7; 4 T. R. 318; 1 Bouv. Inst. n. 980 et seq.
LETTER, civil law. The answer which the prince gave to questions of law which had been submitted to him by magistrates, was called letters or epistles. See Rescripts.
LETTER OF ADVICE. comm. law. A letter containing information of any circumstances unknown to the person to whom it is written; generally informing him of some act done by the writer of the letter.
2. It is usual and perfectly proper for the drawer of a bill of exchange to write a letter of advice to the drawee, as well to prevent fraud or alteration of the bill, as to let the drawee know what provision has been made for the payment of the bill. Chitt. Bills 185. (ed. of 1836.)
LETTER OF ATTORNEY, practice. A written instrument under seal, by which one or more persons, called the constituents, authorize one or more other persons called the attorneys, to do some lawful act by the latter, for or instead, and in the place of the former. 1 Moody, Cr. Cas. 52, 70.
2. The authority given in the lettor of attorney is either general, as to transact all the business of the constituent; or special, as to do some special business, particularly named; as, to collect a debt.
3. It is revocable or irrevocable; the former when no interest is conveyed to the attorney, or some other person. It is irrevocable when the constituent conveys a right to the attorney in the matter which is the subject of it; as, when it is given as part security. 2 Esp. R. 565. Civil Code of Lo: art. 2954 to 2970.
LETTER BOOK, commerce. A book containing the copies of letters written by a merchant or trader to his correspondents.
2. After notice to the plaintiff to produce a letter which he admitted to have received from the defendant, it was held that an entry by a deceased clerk, in a letter book professing to be a copy of a letter from the defendant to the plaintiff of the same date, was admissible evidence of the contents, proof having been given, that according to the course of business, letters of business written by the plaintiff were copied by this clerk and then sent off by the post. 3 Campb. R. 305. Vide 1 Stark Ev. 356; Bouv. Inst. n. 3139.
LETTER CARRIER. A person employed to carry letters from the post office to the persons to whom they are addressed.
2. The act of congress of March 3, 1851, Statutes at Large of U. S. by Minot, 591, directs, 10, That it shall be in the power of the postmaster general, at all post offices where the postmaster's are appointed by the president of the United States, to establish post routes within the cities or towns, to provide for conveying letters to the post office by establishing suitable and convenient places of deposit, and by employing carriers to receive and deposit them in the post office; and at all such offices it shall be in his power to cause letters to be delivered by suitable carriers, to be appointed by him for that purpose, for which not exceeding one or two cents shall be charged, to be paid by the person receiving or sending the same, and all sums so received shall be paid into the post office department: Provided, The amount of compensation allowed by the postmaster general to carriers shall in no case exceed the amount paid into the treasury by each town or city under the provisions of this section.
3. It is further enacted by c. xxi. s. 2, That the postmaster general shall be, and he is hereby, authorized to appoint letter carriers for the delivery of letters from any post office in California or Oregon, and to allow the letter carriers who may be appointed at any such post office to demand and receive such sum for all letters, newsapers, or other mailable matter delivered by them, as may be recommended by the postmaster for whose office such letter carrier may be appointed, not exceeding five cents for every letter, two cents for every newspaper, and two cents for every ounce of other mailable matter and the postmaster general shall be, and he is hereby, authorized to empower the special agents of the post office department in California and Oregon to appoint such letter carriers in their districts respectively, and to fix the rates of their compensation within the limits aforesaid, subject to, and until the final action of, the postmaster general thereon. And such appointments may be made, and rates of compensation modified from time to time, as may be deemed expedient and the rates of compensation may be fixed, and graduated in respect to the distance of the place of delivery from the post office for which such carriers are appointed, but the rate of compensation of any such letter carrier shall not be changed after his appointment, except by the order of the postmaster general; and such letter carriers shall be subject to the provisions of the forty-first section of the act entitled "An Act to change the organization of the post office, department, and to provide more effectually for the settlement of the accounts thereof," approved July second, eighteen hundred and thirty-six, except in cases otherwise provided for in this act.
LETTER OF CREDENCE, international law. A written instrument addressed by the sovereign or chief magistrate of a state, to the sovereign or state to whom a public minister is sent, certifying his appointment as such, and the general objects of his mission, and requesting that full faith and credit may be given to what he shall do and say ou the part of his court.
2. When it is given to an ambassador, envoy, or minister accredited to a sovereign, it is addressed to the sovereign or state to whom the minister is delegated in the case of a chargÇ d'affaires, it is addressed by the secretary or minister of state charged with the department of foreign affairs to the minister of foreign affairs of the other government. Wheat. International Law, pt. 3, c. 1, 7; Wicquefort, de l'Ambassadeur, l. 1, 15.
LETTER OF CREDIT, contracts. An open or sealed letter, from a merchant in one place, directed to another, in another place or country, requiring him that if a person therein named, or the bearer of the letter, shall have occasion to buy commodities, or to want money to any particular or unlimited amount, either to procure the same, or to pass his promise, bill, or other engagement for it, the writer of the letter undertaking to provide him the money for the goods, or to repay him by exchange, or to give him such satisfaction as he shall require, either for himself or the bearer of the letter. 3 Chit Com. Law, 336; and see 4 Chit. Com. Law, 259, for a form of such letter.
2. These letters are either general or special; the former is directed to the writer's friends or correspondents generally, where the bearer of the letter may happen to go; the latter is directed to some particular person. When the letter is presented to the person to whow it is addressed, he either agrees to comply with the request, in which case he immediately becomes bound to fulfil all the engagements therein mentioned; or he refuses in which case the bearer should return it to the giver without any other proceeding, unless, indeed, the merchant to whom the letter is directed is a debtor of the merchant who gave the letter, in which case he should procure the letter to be protested. 3 Chit. Com. Law, 337; Malyn, 76; 1 Beaw. Lex Mer. 607; Hall's Adm. Pr. 14; 4 Ohio R. 197; 1 Wllc. R. 510.
3. The debt which arises on such letter, in its simplest form, when complied with, is between the mandator and the mandant; though it may be so conceived as to raise a debt also against the person who is supplied by the mandatory. 1. When the letter is purchased with money by the person wishing for the foreign credit; or, is granted in consequence of a check on his cash account, or procured on the credit of securities lodged with the person who granted it; or in payment of money due by him to the payee; the letter is, in its effects, similar to a bill of exchange drawn on the foreign merchant. The payment of the money by the person on whom the letter is granted raises a debt, or goes into account between him and the writer of the letter; but raises no debt to the person who pays on the letter, against him to whom the money is paid. 2. When not so purchased, but truly an accommodation, and meant to raise a debt on the person accommodated, the engagement, generally is, to see paid any advances made to him, or to guaranty any draft accepted or bill discounted and the compliance with the mandate, in such case, raises a debt, both against the writer of the letter, and against the person accredited. 1 Bell's Com. 371, 6th ed. The bearer of the letter of credit is not considered bound to receive the money; he may use the letter as he pleases, and he contracts an obligation only by receiving the money. Poth. Contr. de Change, 237.
LETTER OP LICENSE, contracts. An instrument or writing made by creditors to their insolvent debtor, by which they bind themselves to allow him a longer time than he had a right to, for the payment of his debts and that they will not arrest or molest him in his person or property till after the expiration of such additional time.
LETTER OF MARQUE AND REPRRISAL, War. A commission granted by the government to a private individual, to take the property of a foreign state, or of the citizens or subjects of such state, as a reparation for an injury committed by such state, its citizens or subjects. A vessel loaded with merchandise, on a voyage to a friendly port, but armed for its own defence in case of attack by an enemy, is also called a letter of marque. 1 Bouly-Paty, tit. 3, s. 2, p. 300.
2. By the constitution, art. 1, s. 8, cl. 11, congress has power to grant letters of marque and reprisal. Vide Chit. Law of Nat. 73; 1 Black. Com. 251; Vin. Ab. Prerogative, N a; Com. Dig. Prerogative, B 4; Molloy, B. 1, c. 2, s. 10; 2 Wooddes. 440; 6 Rob. Rep. 9; 5 Id. 360; 2 Rob. Reb. 224. And vide Reprisal.
LETTER missive, Engl. law. After a bill has been filed against a peer or peeress, or lord of parliament, a petition is presented to the lord chancellor for his letter, called a letter missive, which requests the defendant to appear and answer to the bill. A neglect to attend to this, places the defendant, in relation to such suit, on the same ground as other defendants, who are not peers, and a subpoena may then issue. Newl. Pr. 9; 2 Madd. Ch. Pr. 196; Coop. Eq. Pl. 16.
LETTER of RECFALL. A written document addressed by the executive of one government to the executive of another, informing the latter that a minister sent by the former to him, has been recalled.
LETTER OF RECOMMENDATION, com. law. An instrument given by one person to another, addressed to a third, in which the bearer is represented as worthy of credit. 1 Bell's Com. 371, 6th, ed.; 9 T. R. 51; 7 Cranch, Rep. 69; Fell on Guar. c. 8; 6 Johns. R. 181; 13 Johns. R. 224; 1 Day's Cas. Er 22; and the article Recommendation.
LETTER OF RECREDENTIALS. A document delivered to a minister, by the secretary of state of the government to which he was accredited. It is addressed to the executive of the minister's country. This is in reply to the letter of recall.
LETTERS CLOSE, Engl. law. Close letters are grants, of the king, and being of private concern, they are thus distinguished from letters patent.
LETTERS AD COLLIGENDUM BONA DE FUNCTI, practice. In default of the representatives and creditors to administer to the estate of an intestate, the officer entitled to grant letters of administration, may grant to such person as he approves, letters to collect the goods of the deceased, which neither make him executor nor administrator; his only busness being to collect the goods and keep them in his safe custody. 2 Bl. Com. 505.
LETTERS PATENT. The name of an instrument granted by the government to convey a right to the patentee; as, a patent for a tract of land; or to secure to him a right which he already possesses, as a patent for a new invention or discovery; Letters patent are a matter of record. They are so called because they are not sealed up, but are granted open. Vide Patent.
LETTERS OF REQUEST, Eng. eccl. law, An instrument by which a judge of an inferior court waives or remits his own jurisdiction in favor of a court of appeal immediately superior to it.
2. Letters of request, in general, lie only where an appeal would lie, and lie only to the next immediate court of appeal, waiving merely the primary jurisdiction to the proper appellate court, except letters of request from the most inferior ecclesiastical court, which may be direct to the court of arches, although one or two courts of appeal may, by this, be ousted of their jurisdiction as courts of appeal. 2 Addams, R. 406. The effect of letters of request is to give jurisdiction to the appellate court in the first instance. Id. See a form of letters of request in 2 Chit. Pr. 498, note.
LETTERS ROGATORY. A letter rogatory is an instrument sent in the name and by the authority of a judge or court to another, requesting the latter to cause to be examined, upon interrogatories filed in a cause depending before the former, a witness who is within the jurisdiction of the judge or court to whom such letters are addressed. In letters rogatory there is always an offer on the part of tbe court whence they issued, to render a similar service to the court to which they may be directed whenever required. Pet. C. C. Rep. 236.
2. Though formerly used in England in the courts of common law, 1 Roll. Ab. 530, pl. 13, they have been superseded by commissions of Dedimus potestatem, which are considered to be but a feeble substitute. Dunl. Pr. 223, n.; Hall's Ad. Pr. 37. The courts of admiralty use these letters, which are derived from the civil law, and are recognized by the law of nations. See Foelix, Dr. Intern. liv. 2, t. 4, p. 800; Denisart, h. t.
LETTERS TESTAMENTARY, AND OF ADMINISTRATION. It is proposed to consider, 1. Their different kinds. 2. Their effect.
2. - 1. Their different kinds. 1. Letters testamentary. This is an instrument in writing, granted by the judge or officer having jurisdiction of the probate of wills, under his hand and official seal, making known that on the day of the date of the said letters, the last will of the testator, (naming him,) was duly proved before him; that the testator left goods, &c., by reason, whereof, and the probate of the said will, he certifies "that administration of all and singular, the goods, chattels, rights and credits of the said deceased, any way concerning his last will and testament, was committed to the executor, (naming him,) in the said testament named." 2. Letters of administration may be described to be an instrument in writing, granted by the judge or officer having jurisdiction and power of granting such letters, thereby giving the administrator, (naming him,)," full power to administer the goods, chattels, rights and credits, which were of the said deceased, in the county or, district in which the said judge or officer has jurisdiction; as also to ask, collect, levy, recover and receive the credits whatsoever, of the said deceased, which at the time of his death were owing, or did in any way belong to him, and to pay the debts in which the said deceased stood obliged, so far forth as the said goods and chattels, rights and credits will extend, according, to the rate and order of law." 3. Letters of administration pendente lite, are letters granted during the pendency of a suit in relation to a paper purporting to be the last will and testament of the deceased. 4. Letters of administration de bonis non, are granted, where the former executor or administrator did not administer all the personal estate of the deceased, and where he is dead or has been discharged or dismissed. Letters of administration, durante minori aetate, are granted where the testator, by his will, appoints an infaut executor, who is incapable of acting on account of his infancy. Such letters remain in force until the infant arrives at an age to take upon himself the execution of the will. Com. Dig. Administration, F; Off. Ex. 215, 216. And see 6 Rep. 67, b; 5 Rep. 29, a; 11 Vin. Abr. 103; Bac. Ab. h. t. 6. Letters of administration durante absentia, are granted when the executor happens to be absent at the time when the testator died, and it is necessary that some person should act immediately in the management of the affairs of the estate.
3. - 2. Of their eltect. 1. Generally. 2. Of their effect in the different states, when granted out of the state in which legal proceedings are instituted.
4. - 1. Letters testamentary are conclusive as to personal property, while they remain unrevoked; as to realty they are merelly primÉ facie evidence of right. 3 Binn. 498; Gilb. Ev. 66;. 6 Binn. 409; Bac. Abr. Evidence, F. See 2 Binn. 511. Proof that the testator was insane, or that the will was forged, is inadmissible. 16 Mass. 433; 1 Lev. 236. But if the nature of his plea allow the defendant to enter into such proof, he may show that the seal of the supposed probate has been forged, or that the letters have been obtained by surprise; 1 Lev. 136; or been revoked; 15 Serg. & Rawle, 42; or that the testator is alive. 15 Serg. & Rawle, 42; 3 T. R. 130.
5. - 2. The effect of letters testametary, and of administration granted, in some one of the United States, is different in different states. A brief view of the law on this subject will here be given, taking the states in alphabetical order.
6. Alabama. Administrators may sue upon letters of administration granted in anothor state, where the intestate had no known place of residence in Alabama at the time of his death, and no representative has been appointed in the state; but before rendition of the judgment, he must produce to the court his letters of administration, authenticated according to the laws of the United States, and the certificate of the clerk of some county court in this state, that the letters have been recorded in his office. Before he is entitled to the money on the judgment, he must also give bond, payable to the judge of the court where the judgment is rendered, for the faithful administration of the money received. Aiken's Dig. 183 Toulm. Dig. 342.
7. Arkansas. When the deceased had no residence in Arkansas, and he devised lands by will, or where the intestate died possessed of lands, letters testa-mentary or of administration shall be granted in the county where the lands lie, or of one of them, if they lie in several counties; and if the deceased had no such place of residence and no lands, such letters may be granted in the county in which the testator or intestate died, or where the greater part of his estate may be. Rev. Stat. c. s. 2.
8. Connecticut. Letters testamentary issued in another state, are not available in this. 3 Day 303. Nor are letters of administration. 3 Day, 74; and see 2 Root, 462.
9. Delaware. By the act of 1721, 1 State Laws, 82, it is declared in substance, that when any person shall die, leaving bona notabilia, in several counties in the state and in Pennsylvania or elsewhere; and, any person not residing in the state, obtains letters of administration out of the state, the deceased being indebted to any of the inhabitants of the state, for a debt contracted within the same to the value of ú20, then, and in such case, such administrator, before he can obtain any judgment in any court of record within the state against any inhabitant thereof, by virtue of such letters of administration, is obliged to file them with some of the registers in this state; and must enter into bonds with sufficient sureties, who have visible estates here, with condition to pay and satisfy all such debts as were owing by the intestate at the time of his death to any person residing in this state, so far as the effects of the deceased in this state will extend. By the act of June 16, 1769, 1 State Laws, 448, it is enacted in substance that any will in writing made by a person residing out of the state, whereby any lands within the state are devised, which shall be proved in the chancery in England, Scotland, Ireland, or any colony, plantation, or island in America, belonging to the king of Great Britain, or in the hustings, or mayor's court, in London, or in some manor court, or before such persons as have power or authority at the time of proving such wills, in the places aforesaid, to take probates of wills, shall be good and available in law for granting the lands devised, as well as of the goods and chattels bequeathed by such will. The copies of such will, and of the bill, answer, depositions and decree, where proved in any court of chancery, or copies of such wills and the probate thereof, where proved in any other court, or in any office as aforesaid, being transmitted to this state, and produced under the public or common-seal of the court or office where the probate is taken, or under the great seal of the kingdom, colony, plantation or island, within which such will is proved (except copies of such wills and probates as shall appear to be revoked), are declared to be matter of record, and to be good evidence in an any court of law or equity in this state, to prove the gift or devise made in such will; and such probates are declared to be sufficient to enable executors to bring their actions within any court within this state, as if the same probates or letters testamentary were granted here, and produced under the seal of any of the registers offices within this state. By the 3d section of the act, it is declared that the copies of such wills and probates so produced, and given in evidence, shall not be returned by the court to the persons producing them, but shall be recorded in the office of the recorder of the county where the same are given in evidence, at the expense of the party producing the same.
10. Florida. Copies of all wills, and letters testamentary and of administration, heretofore recorded in any public office of record in the state, when duly certified by the keeper of said records, shall be received in evidence in all courts of record in this state and the probate of wills granted in any of the United States or of the territories thereof, in any foreign country or state, duly authenticated and certified according to the laws of the state or territory, or of the foreign country or state, where such probate may have been granted, shall likewise be received in evidence in all courts of record in this state.
11. Georgia. To enable executors and administrators to sue in Georgia, the former must take out letters testamentary in the county where the property or debt is; and administrators, letters of administration. Prince's Dig. 238; Act of 1805, 2 Laws of Geo. 268.
12. Illinois. Letters testamentary must be taken out in this state, and when the will is to be proved, the original must be produced; administrators of other states must take out letters in Illinois, before they can maintain an action in the courts of the state. 3 Griff. L. R. 419.
13. Indiana. Executors and administrators appointed in another state may maintain actions and suits and do all other acts coming within their powers, as such, within this state, upon producing authenticated copies of such letters and filing them with the clerk of the court in which such suits are to be brought. Rev. Code, c. 24, Feb. 17, 1838, sec. 44.
14. Kentucky executors and administrators appointed in other states may sue in Kentucky "upon filing with the clerk of the court where the suit is brought, an authenticated copy of the certificate of probate, or orders granting letters of administration of said estate, given in such non-resident's state." 1 Dig. Stat. 536; 2 Litt. 194; 3 Litt. 182.
15. Louisiana. Executors or administrators of other states must take out letters of curatorship in this state. Exemplifications of wills, and testaments are evidence. 4 Griff. L. R. 683; 8 N. S. 586.
16. Maine. Letters of administration must be taken from some court of probate in this state. Copies of wills which have been proved in a court of probate in any of the United States, or in a court of probate of any other state or kingdom, with a copy of the probate thereof, under the seal of the court where such wills have been proved, may be filed and recorded in any probate court in this state, which recording shall be of the same force as the recording and proving the original will. Rev. Stat. T. 9, c. 107 20; 3 Mass, 514; 9 Mass. 337; 11 Mass. 256; 1 Pick. 80; 3 Pick. 128.
17. Maryland. Letters testamentary or of administration granted out of Maryland have no effect in this state, except only such letters issued in the District of Columbia, and letters granted there authorize executors or administrators to claim and sue in this state. Act of April 1813, chap. 165. By the act of 1839, chap. 41, when non-resident owners of any public or state of Maryland stocks, or stocks of the city of Baltimore, or any other corporation in this state die, their executors or administrators constituted under the authority of the state, district, territory or country, where the deceased resided at his death, have the same power as to such stocks, as if they were appointed by authority of the state of Maryland. But, before they can transfer the stocks, they must, during three months, give notice to two newspapers published in Baltimore, of the death of the testator or intestate, and of the "amount and description of the stock designed to be transferred." Administration must be granted in this state, in order to recover a debt due here to a decedent, or any of his property, with the exceptions above noticed.
18. Massachusetts. When any person shall die intestate in any other state or country, leaving estate to be administered within this state, administration thereof shall be granted by the judge of probate of any county, in which there is any estate to be administered; and the administration, which shall be first lawfully granted shall extend to all the estate of the deceased within the state, and shall exclude the jurisdiction of the probate court in every other county. Rev. Stat., ch. 64, s. 3. See 3 Mass. 514; 5 Mass. 67; 11 Mass. 256 Id. 314; 1 Pick. 81.
19. Michigan. Letters testamentary or letters of administration granted out of the state are not of any validity in it. In order to collect the debts or to obtain the property a deceased person who was not a resident of the state, it is requisite to take out letters testamentary or letters of administration from a probate court of this stafe, within whose jurisdiction the property lies, which letters operate over all the state, and then sue in the name of the executor or administrator so appointed. Rev. Stat. 280. When the deceased leaves a will executed according to the laws of this state, and the same is admitted to proof and record where he dies, a certified transcript of the will and probate thereof, may be proved and recorded in any county in this state, where the deceased has property real or personal, and letters testamentary may issue thereon. Rev. Stat. 272, 273.
2O. Mississippi. Executors or administrators in another state or territory cannot as such, sue nor be sued in this state. In order to recover a debt due to a deceased person or his property, there must be taken out in the state, letters of administration or letters with the will annexed, as the case may be. These may be taken out from the probate court of the county where the proprty is situated, by a foreign as well as a local creditor, or any person interested in the estate of the deceased, if properly qualified in other respects. Walker's R. 211.
21. Missouri. Letters testamentary or of administration granted in another state have no validity in this; to maintain a suit, the executors or adminis-trators must be appointed under the laws of this state. Rev. Code, 2, pt 41.
22. New Hampshire. One who has obtained letters of administrition; Adams' Rep. 193, or letters testamentary under the authority of another state, cannot maintain an action in New Hampshire by virtue of such letters. 3 Griff. L. R. 41.
23. New Jersey. Executors having letter testamentary, and administrators letters of administration granted in another state, cannot sue thereon in New Jersey, but must obtain such letters in that state as the law prescribes. 4 Griff. L R. 1240. By the act of March 6, 1828, Harr. Comp. 195, when a will has been admitted to probate in any state or territory of the United States, or foreign nation, the surrogate of any county or this state is authorized, on applicaton of the executor or any person interested, on filing a duly exemplified copy of the will, to appoint a time not less than thirty days, and not more than six-months distant, of which notice is to be given as he shall direct, and if at such time, no sufficient reason be shown to the contrary, to a omit such will to probate, and grant letters testamentary or of administration cum testamento annexo, which shall have the same effect as though the original will had been produced and proved under form. If the person to whom such letters testamentary or of administration be granted, is not a resident of this state, he is required to give security for the faithful administration of the estate. By the statute passed February 28, 1838, Elmer's Dig. 602, no instrument of writing can be admitted to probate under the preceding act unless it be signed and published by the testator as his will. See Saxton's Ch. R. 332.
24. New York. An executor or administrator appointed in another state has no authority to sue in New York. 6 John. Ch. Rep. 353; 7 John. Ch. Rep. 45; 1 Johns. Ch. Rep. 153. Whenever an intestate, not being an inhabitant of this state, shall die out of the state, leaving assets in several counties, or assets shall after his death come in several counties, the surrogate of any county in which assets shall be, shall have power to grant letters of administration on the estate of such intestate; but the surrogate, who shall first grant letters of administration on such estate, shall be deemed thereby to have acquired sole and exclusive jurisdiction over such estate, and shall be vested with the powers incidental thereto. Rev. Stat. part 2, c. 6. tit. 2, art. 2, s. 24; 1 R. L. 455 3; Laws, of 1823, p. 62, s. 2, 1824, p. 332.
25. North Carolina. It was decided by the court of conference, then the highest tribunal in North Carolina, that letters granted in Georgia were insufficient. Conf. Rep. 68. But the supreme court have since held that letters testamentary granted in South Carolina, were sufficient to enable an executor to sue in North Carolina. 1 Car. Law Repos. 471. See 1 Hayw. 364.
26. By the revised statutes, ch. 46, s. 6, it is provided, that "where a testator or testatrix shall appoint any person, residing out of this state, executor or executrix of his or her last will and testament, it shall be the duty of the court of pleas and quarter sessions, before which the said will shall be offered for probate, to cause the executor or executrix named therein, to enter into bond with good and sufficient security for his or her faithful administration of the estate of the said testator or testatrix and for the distribution thereof in the manner prescribed by law; the penalty of said bond shall be double the supposed amount of the personal estate of the said testator or testatrix; and until the said executor or executrix shall enter into such bond, he or she shall have no power nor authority to intermeddle with the estate of the said testator or testatrix; and the court of the county in which the testator or testatrix had his or her last usual place of resi-dence, shall proceed to, grant letters of administration with the will annexed, which shall continue in force until the said executor or executrix shall enter into bond as aforesaid. Provided nevertheless, and it is hereby declared, that the said executor or executrix shall enter into bond as by this act directed within the space of one year after the death of the said testator, or testatrix, and not afterwards."
27. Ohio. Executors and administrators appointed under the authority of another state, may, by virtue of such appointment, sue in this. Ohio Stat. vol. 38, p. 146; Act. of March 23, 1840, which, went into effect the first day of November following; Swan's Coll. 184.
28. Pennsylvania. Letters testamentary or of administration, or otherwise purporting to authorize any person to intermeddle with the estate of a decedent, granted out of the commonwealth, do not in general confer on any such person any of the powers, and authorities possessed by an executor or administrator, under letters granted within the state. Act of March 15, 1832 s. 6. But by the act of April 14, 1835, s. 3, this rule is declared not to apply to any public debt or loan of this commonwealth; but such public debt or loan shall pass and be transferable, and the dividends thereon accrued and to accrue, be receivable in like manner and in all respects and under the same and no other regulations, powers and authorities as were used and practiced before the passage of the above mentioned act. And the act of June 16, 1836, s. 3, declares that the above act of March 15, 1832, s. 6, shall not apply to shares of stock in any bank or other incorporated company, within this commonwealth, but such shares of stock shall pass and be transferable, and the dividends thereon accrued and to accrue, be receivable in like manner in all respects, and under the same regulations, powers and authorities as were used and practiced with the loans or public debts of the United States and were used and practiced with the loans or public debt of this commonwealth, before the passage of the, said act of March 15, 1832, s. 6, unless the by-laws, rules and regulations of any such bank or corporation, shall, otherwise provide and declare. Executors and administrators who had been lawfully appointed in some other of the United States, might, by virtue of their letters duly authenticated by the proper officer, have sued in this state. 4 Dall. 492; S. C. 1 Binn. 63. But letters of administration granted by the archbishop of York, in England, give no authority to the administrator in Pennsylvania. 1 Dall. 456.
29. Rhode Island. It does not appear to be settled whether executors and administrators appointed in another state, may, by virtue of such appointment, sue in this. 3 Griff. L. R. 107, 8.
30. South Carolina. Executors and administrators of other states, cannot, as such, sue in South Carolina; they must take out letters in the state. 3 Griff. L. R. 848.
31. Tennessee. 1. Where any person or persons may obtain, administration on the estate of any intestate, in any one of the United States, or territory thereof, such person or persons shall be enabled to prosecute suits in any court in this state, in the same manner as if administration had been granted to such person or persons by any court in the state of Tennessee. Provided, that such person or persons shall, produce a copy of the letters of administration, authenticated in the manner which has been prescribed by the congress of the United States, for authenticating the records or judicial acts of any one state, in order to give them validity in any other state and that such letters of administration had been granted in pursuance of, and agreeable to the laws of the state or territory in which such letters of administration were granted.
32. 2. When any executor or executors may prove the last will and testament of any deceased person, and take on him or themselves the execution of said will in any state in the United States, or in any territory thereof, such person or persons shall be enabled to prosecute suits in any court in this state, in the same manner as if letters testamentary had been granted to him or them, by any court within the state of Tennessee. Provided, That such executor or executors shall, produce a certified copy of the letters testa-mentary under the hand and seal of the clerk of the court where the same were obtained, and a certificate by the chief justice, presiding judge, or chairman of such court, that the clerk's certificate is in due form, and that such letters testamentary had been granted in pursuance of, and agreeable to, the laws of the state or territory in which such letters testamentary were granted. Act of 1839, Carr. & Nich. Comp. 78.
33. Vermont. If the deceased person shall, at the time of his death, reside in any other state or country, leaving estate to be administered in this state, administration thereof shall be granted by the probate court of the district in which there shall be estate to administer; and the administration first legally granted, shall extend to all the estate of the deceased in this state, and shall exclude the jurisdiction of the probate court of every other district. Rev. Stat. tit. 12, c. 47, s. 2.
34. Virginia. Authenticated copies of wills, proved according to the laws of any of the United States, or of any foreign country, relative to any estate in Virginia, may be offered for probate in the general court, or if the estate lie altogether in any other county or corporation, in the circuit, county or corporation court of such county or corporation. 3 Griff. L. R. 345. It is understood to be the settled law of Virginia, though there is no statutory provision on the subject, that no probate of a will or grant of administration in another state of the Union, or in a foreign country, and no qualification of an executor or administrator, elsewhere than in Virginia, give any such executor or administrator any right to demand the effects or debts of the decedent, which may happen to be within the jurisdiction of the state. There must be a regular probate or grant of administration and qualification of the executor or administrator in Virginia, according to her laws. And the doctrine prevails in the federal courts held in Virginia, as well as in the state courts. 3 Graff. L. R. 348.