BERNEY V. DREXEL.
sary dangers, such as may be avoided by reasonable care in the construction of their cars and other apparatus upon the road. At first I supposed that it was beyond question that the plaintiff must have been ignorant of the defect in the carin order to recover in the action. That is averred in this complaint, that he was ignorant. After reading a great many cases I have some doubt noW upon ' , that proposition. It is a question in my mind whether such !Ii defect as this-it being averred, or the facts being shown from' which it would "appear that the company, having knowledge of tlie dangerous character of the car, and the circumstance that some of the cars had been withdrawn from use, which maybe said to afford some reasonable grottnd, for belief on the part of the employes of the e0D!pany that ,it was thE) intention of the company to withdraw all of them from USB very soon t and in that way amounting ,almost to a 'promise tMtthey would withdrawn-whether he might not recover even if itsl\.buld appear that the character of the car was kndwn to him. But that not presented in this demurrer. The averment here is that the dllfect was not known to him; that the cars generally in use upon the road car, were of a proper construction, and that this was a and which was liable to accident at all times. The company having knowledge of that fact, continuing to use it, it would se.nn that the right of action is clear. The demurrer will be
Ex'x, etc., v.
(Oirouit Oourt, 8. D. New York. June 10,1882.)
ESTATEIil OF DECEASED-ANCILLARY LETTERS.
Under the general averment that letters testamentary were Issued to the plaintiff, plaintiff's right to maintain the action her represeptative capacity the letters may rest upon the grant of ancillary letters, the statute to issue to the person named in the foreign letters, and the validity of her appointment cannot be assailed on the ground that she is an aliell.
SAME-JURISDICTION OF SURROGATE.
Lord, Day rt- Lord, for plaintiff. " Tracy, Olmstead ¢ Tracy,for defendants.
WALLACE, C. J. The demurrer to the complaint is not well taken. The averment that letters testamentary upon the will of the testator were duly issued to the plaintiff by the surrogate of the county of New York, under and by virtue of certain proceedings provided by statute, is a substantial compliance with section 532 of the Code of Civil Procedure, which dispenses with all averments of the jurisdictional facts requisite to the judicial determination of a court or officer of special jurisdiction. Under this averment the plaintiff's right to maintain the action in her representative capacity may rest upon the grant of ancillary letters. The validity of her appointment cannot be assailed here on the ground that she was an alien when appointed. The statute authorizes the letters .. to issue to the person ,named in the foreign letters. Code, § 2607. Indeed, in the absence of any adjudication by the state courts upon the question, I should hold that prior to the the statute of 1863, enactment of the section referred to, and (chapter 403,) the incompetenQY of an alien to serve as an executor did not attach when the appointment was under ancillary letters. But if it be conceded that an alien is not competent to serve as an executor, and the disability extends to the appointment under ancillary letters of the person named in the foreign will, the validity of the appointment cannot be assailed collaterally. Conceding, for present purposes, that the surrogate granted letters to an incompetent person, his determination was: an erroneous but not a void exercise of judicial power. He had jurisdiction; his determination was not extrajudicial, but was within the limits of his jurisdiction; it involved the decision of a question of fact which he was the only authority, primarily, to solve. Suppose the surrogate had decided that the person appointed was not an alien, and therefore the objections to the appointment on that ground should not be sustained, would it be contended that the deCision could be attacked collaterally? Under the statutes the surrogate had the power to hear and deter" mine whether the plaintiff was competent to aot as executrix. He therefore had jurisdiction over the subject-matter. He decided that she was competent, and that decision is conclusive until rever,sed. A wrong decision does not impair the power to decide onthE\ validity of the decision when questioned collaterally. It is not necessary to cite authorities: ,for these familiar principles, but the of Oanjolle v. Ferrie, 13 Wall. 465, is quite in the Burrogate was of the derequired by the statute to grant letters tQ to his personal and ceased, who would be entitled
it was held that his decision was conclusive whim soughPto be
attacked collaterally by that the letters were not issued to such relatives. Inasmuch as, under the allegations of the 'complaint,the authority of the executors of Berney's will depends upon the law of France, and it must be assumed from the averments that they had no power to dispose of the bonds in it is not necessary to discuss the effect of a sale under a power of attorney from the executors according to the law of this country. . ' The demurrer is overruled. Defendants' may answer within 20 days on payment of costs of demurrer.
FBELINGHUYSEN, Receiver, etc.,
BALDWIN and others.
(Di8tmCt Oourt, D. N61JJ Jer861/. June 3, 1882.)
.JURISDICTION-RECEIVERS AS OFFICERS 'OJ' UNITED STATES.
A receiver of a national bank is an officer of the United States, and 8lI1luch may sue in the.federal courts in the district in which such bank is located.
Demurrer to Plea. A. Q. Keasbey, U. S. Dist. Atty., for receiver. Oourtlandt et R. Wayne Parker, for defendants. NIXON, D. J. This ease arises upon demurrer to a plea. Frederick Frelinghuysen, the receiver of the Mechanics'National Bank of Newark, has brought suit against Oscar L. Baldwin, the late cashier, and 'his sureties upon' their bond to the corporation conditioned for the faithful discha.rge of his duties as cashier. The plea demurred to avers that all the parties to the bond are citizens of the state of New Jetsey, and that the court has no jurisdiction in such a case. By the provisions of the national banking act the comptroller of the currency is authorized, with the concurrence of the secretary of the treasury, under certain circumstances not necessary to be her.e stated, to appoint a receiver to wind up the affairs of the association.' Sec. tion 5191 of the Revised Statutes. Such receiver, after giving the takes possession of bond and security required' by the the books, records, ll.nd assets of every description of the association; collects all debts, dues, and claims belonging to it; and under' the directionaf a court of competent jurisdiction. mliy sell or compound all bad or doubtful debts, and dispose of all' the' real and personal