William Sturgis, Administrator, &c. versus George W. Slacum, 18 Pick. 36

Wilde J. delivered the opinion of the Court. This is an action of assumpsit, in which the plaintiff claims to recover a balance in the hands of the defendant, in the capacity of administrator of the goods and estate of John M. Forbes, lately deceased. The intestate was charge d’affaires of the government of the United States to the government of Buenos Ayres, and died at Buenos Ayres in the year 1831.

At that time the defendant was consul of the United States at that port, in the exercise of the duties of that office ; and thereupon took into his possession certain personal property of the deceased, there being, and caused the same .to be sold at public auction, and out of the proceeds paid certain debts of the intestate due at Buenos Ayres, and afterwards transmitted an account thereof to the plaintiff, in wffiich he acknowledges a balance in his hands, which he claims to retain on account of a claim he had on the estate of the intestate.

These proceedings are authorized by the act of Congress of the United States, 1792, c. 24, § 2. The defence set up is, that the defendant was, by virtue of ms consular office and such act of Congress, an administrator of the estate of the intestate within the government of Buenos Ayres ; that he is only liable to account in the manner prescribed by statute ; and that he is not amenable to the plaintiff within this.jurisdiction, and especially not in an action at law. There can be no doubt that this defence would prevail, if the defendant had been appointed administrator in the usual manner.

When there are two or more administrators appointed on the estate of a person deceased, under different governments, they are in no respect accountable to each other ; but each must administer the estate of the deceased within the jurisdiction where he was appointed, and is to account for it to the court from whom he received his appointment. And that court may order distribution according to the laws of the country where the deceased had his domicil at the time of his death ; or may order the balance to be transmitted to the administrator appointed in the country where he had his domicil.

Perhaps after such an order of transmission, an action would lie in favor of the principal administrator ; for where any one is under a legal obligation to pay, the law will imply a promise. But however this may be, it is quite clear that without such order no such action could be maintained, the administrations being distinct, and there being no privity between the parties. We are however of opinion, that the defendant is not to be regarded as an ordinary administrator, but as a receiver or agent appointed by law, and whose duties are prescribed by the statute.

These duties in some respects resemble those of ordinary administrators ; but in one respect there is an important difference. The act provides, that the consuls shall collect the debts due to the deceased in the country where he died, and pay the debts due from his estate which are contracted there; shall sell the estate and remit the balance remaining in their hands to the treasury of the United States, to be holden in trust fo the legal claimants.

But if at any time before such transmis sion, the legal representative of the deceased shall appear anu demand bn effects in their hands, they shall deliver them up, being paid their fees, and shall cease their proceedings. If the defendant had complied with the directions of the statute, and had transmitted the balance in his har.ds to the treasury, as- he was bound to do, he would have been protected by the statute. But as he elected to retain the balance, to answer his own claim, he cannot now defend himself under the statute.

After setting up his own claim, he ceased to act under the statute ; and unless his claim was a valid one, he was bound to pay over the balance to the plaintiff, whom he has recognized as the legal representative of the deceased ; and this by the express words of the statute. Ever since transmitting his account to the plaintiff, he has ceased his proceedings under the act of Congress, and the only question now is, whether be has a right to retain the balance to answer his own claim.

There is no pretence that there are any remaining debts due in Buenos Ayres, and if there were, the defendant is no longer liable for the payment. Fias he then any lien on the money in his hands on account of his own claim ? The general rule is, that a factor has no lien for a general balance in respect of debts which arise prior to the time at which his character of factor commenced. Montague, 35; Houghton v. Matthews, 3 Bos. & Pul. 485. And we perceive no good reason why the same rule should not be applied in the present case.

But it is not necessary to decide the present case upon this principle ; for I apprehend it is very clear, that no factor or agent has any general lien in respect to torts. He may retain the balance, to be sure, and suffer himself to be sued, and obtain a set-off through the medium of a cross action ; but he has no lien, and no legal right to retain the money in his hands. And there is another difficulty. We do not perceive any legal ground on which the defendant’s claim can be sustained. Kortright, if any one, was the party injured by the supposed misconduct of the intestate..

He would have been entitled to the fees and emoluments of the office in the absence of the defendant, and he testifies, that there was no agreement be tween him and the defendant to divide the fees. And if there had been such an agreement, the intestate would have neen still liable only to Kortright. But at all events, the defendant cannot retain the balance in his hands on this account.

The act of Congress only authorizes him to nay the debts of the intestate contracted in Buenos res, and not to pay damages for wrongful acts, which, by the principles of the common law, are not recoverable after the death of the tortfeasor. It appears to us, therefore, that there is no legal ground on which the defence can be maintained ; and according to the agreement of the parties, judgment is to be rendered for the plaintiff.