Harper v. Butler , 7 L. Ed. 410 ( 1829 )

27 U.S. 239 (____) 2 Pet. 239

J. HARPER, PLAINTIFF IN ERROR
vs.
ANTHONY BUTLER, DEFENDANT IN ERROR.

Supreme Court of United States.

Mr Jones, for the plaintiff.

Mr Chief Justice MARSHALL delivered the opinion of the Court.

This is an action of debt brought by the plaintiff in error, in the court of the United States for the district of Mississippi, as the assignee of Henry Clay, executor of James Morrison deceased. The defendant pleaded in abatement, that the will of James Morrison had not been proved or recorded in the state of Mississippi, nor had letters testamentary therein been granted to Henry Clay the executor. To this plea there was a replication, which set out the probate of the will in the state of Kentucky, the letters testamentary to the executor, and the assignment, in the state of Kentucky, of the note on which the action was brought to the plaintiff in error. To this replication the defendant demurred. The court gave judgment for the defendant, and the plaintiff has sued out this writ of error.

The district court proceeded on the idea that the executor could not transfer a chose in action in Kentucky, because the obligor did not reside in that state. This court supposes the law to be otherwise. The assignment in Kentucky could not enable the assignee to sue in the courts of Mississippi, unless the law of the court authorized an assignee to sue in his own name. But since this is permitted in the courts of Mississippi, the plea in abatement cannot be sustained.

The judgment is reversed, and the cause remanded to the district court with directions to over-rule the demurrer.