Jones vs. Janes. admissible, had it been objected to at the trial. If the accident which caused the injury to the plaintiff, could not have been prevented by the exercise of extraordinary diligence on the part of the defendant, then it is not liable therefor under the law, and inasmuch as four unimpeached and uncontradicted witnesses swear that the accident was unavoidable, and their testimony being corroborated by the facts and circumstances connected with the transaction, the verdict was contrary to law, the legal presumption of negligence on the part of the defendant having been rebutted by unimpeached and uncontradicted evidence as disclosed in the record. Besides, there is evidence of witnesses who were present at the time the accident occurred, who state that the pliantiff did not then appear to be hurt much, and one witness states that he then said that those in charge of the train had acted nobly. Let the judgment of the court below be reversed. ELIJAH E. JONES, plaintiff in error, vs. CHARLES G. JANES, administrator, defendant in error. On land conveyed in 1870, the vendor, or one holding the notes given for the purchase money, has no lien for payment; nor, after death of the vendee, has such creditor any priority of payment, out of the land or its proceeds, over other creditors by promissory notes, etc. Vendor and purchaser. Lien. Distribution. Before Judge UNDERWOOD. Polk County. At Chambers. December 24th, 1875. Reported in the opinion. WOFFORD & MILNER, for plaintiff in error. L. G. JANES, by brief, for defendant. BLECKLEY, Judge. This bill was by the bearer of certain notes given for the purchase money of land, in 1870, against the administrator of the vendee. The injunction prayed for and refused, was Johnson et al. vs. Jackson et al. to restrain the administrator from selling the land for the purpose of paying debts generally, and until a judgment could be obtained against him in a pending suit on the notes. The bill asserts a lien upon the land, and denies the right of other creditors to share in it as a fund for the payment of debts, until the purchase money is all discharged. It is not pretended that the land was not conveyed to the vendee by absolute deed. The vendor's lien was abolished by the Code, and this transaction was long after the Code was adopted. If, therefore, this bill were by the vendor, or if the bearer of the notes be admitted to have all the vendor's rights, no lien could be recognized as existing by implication of law. And none is alleged as existing through express contract, by mortgage or otherwise. The bill fails to disclose any legal or equitable right to priority in the distribution of any of the assets of the intestate's estate. This debt takes rank, not by its consideration, but simply by the form in which the intestate left it—that of promissory notes: Code, sections 1997, 2533. Judgment affirmed. JOHN M. JOHNSON et al., plaintiffs in error, vs. WYCHE S. JACKSON, administrator, et al., defendants in error. [JACKSON, Judge, being related to the parties plaintiff in error, did not preside.] 1. If foreign executors or administrators come within the jurisdictional limits of this state they are liable to be sued here by creditors, or to be brought to an account by legatees or distributees. 2. The assets of the deceased should be applied to the payment of debts, or be distributed amongst the next of kin, by the courts of this state, according to the law of the state where such representatives were appointed. This is the comity of states as recognized by the 9th section of the Code. By WARNER, Chief Justice. 3. If an administrator, appointed in Alabama, together with the securities on his bond, become residents of this state, they are liable to be sued here on a decree rendered in this state on a bill filed by the distributees for an account and settlement. By the court. Johnson et al. vs. Jackson et al. Administrators and executors. Jurisdiction. Bonds. Venue. Comity. Before Judge BUCHANAN. Troup Superior Court. November Term, 1875. Reported in the decision. B H. BIGHAṀ; JACKSON & LUMPKIN, for plaintiffs in error. F. M. LONGLEY, for defendants. WARNER, Chief Justice. This was an action brought by the plaintiffs as the heirs and distributees of H. T. Erwin, deceased, against Wyche S. Jackson, administrator of said Erwin, and his securities on his administration bond, in the county of Troup, all the defendants being alleged to be of said county, except Jones, who is alleged to be of the county of Baker in this state. The plaintiffs allege in their declaration that Jackson was appointed administrator on Erwin's estate by the probate court of Chambers county, in the state of Alabama, in the year 1859, and then and there the defendants executed the bond sued on, conditioned for the faithful performance of his duty as such administrator. The plaintiffs also allege that as such administrator he possessed himself of the estate of said Erwin of the value of $75,000 00, and has wasted and appropriated the same to his own use. The plaintiffs also allege that they brought suit in the superior court of Troup county against said Jackson, as administrator aforesaid, for an account and settlement, and obtained a decree against him for the sum of $1,596 95, besides interest and costs, in that court; that no part of said decree has been paid; that a fieri facias has been issued thereon, and a return of nulla bona has been made thereon by the sheriff of Troup county; all of which the plaintiffs allege as a breach of his bond, and now seek to recover the amount of said decree from the defendant and his securities on his aforesaid administration bond. The defend Johnson et al. vs. Jackson et al. ants demurred to the plaintiff's declaration, and made a motion to dismiss the plaintiffs' action on the ground that the superior court of Troup county had no jurisdiction of the case, which demurrer and motion the court sustained, and the plaintiffs excepted. There was no point made that the defendants had not been regularly served with process as required by the laws of this state. 1. The question made and insisted on here was, that the court had no jurisdiction of the case because the administrator had been appointed by the probate court of the state of Alabama, and that the bond sued on had been taken by that court in that state, and must be sued on there, and could not be sued on in the courts of this state, although the defendants might be personally liable to be sued here. Whatever may have been the decisions of the other courts in relation to the question of jurisdiction in this class of cases, (and it is conceded they are conflicting,) still, if it was an original question in this court, I should hold that it was controlled by the constitution and laws of this state, so far as our own courts are concerned. By the constitution, the superior courts of this state have jurisdiction of all civil cases, except as therein otherwise provided. The sovereignty and jurisdiction of the state, and the laws thereof, extend to all persons while within its limits, whether as citizens, denizens or temporary sojourners: Code, section 21. A citizen of another state passing through this state may be sued in any county thereof in which he may happen to be at the time when sued: Code, section 3416. The provisions of the law are general and include executors and administrators as well as all other persons; there is no exception made in favor of executors and administrators, or securities on their bonds. If they come within the jurisdictional limits of the state, they may be sued in any county in the state in which they may happen to be at the time when sued. The policy of the state is to furnish her own people with a remedy to recover their rights in her own courts, without compelling them to go into a foreign jurisdiction to ob Johnson et al. vs. Jackson et al. tain their lawful and just claims. These principles were fully recognized by this court in Maxwell vs. Seymour, Fannin & Company, 30 Georgia Reports, 440, in which it was held that all persons within the limits of a government, whether their residence be deemed permanent or temporary, are to be deemed so far citizens or subjects thereof, as that the right of jurisdiction, civil and criminal, will attach to such persons. 2. When a foreign executor or administrator is sued in the courts of this state, the nature and extent of his liability will depend upon the laws of the state or country where he derived his authority to administer the assets of the decedent. The assets of the deceased should be applied in the payment of debts, or be distributed among the next of kin, by our own courts, according to the law of that state or country, in the same manner as if the executor or administrator had been sued and called on to account in the courts of that state or country, and that is the comity of states as recognized by the 9th section of the Code. Why should the distributees of the deceased, who are citizens of this state, be compelled to go into the foreign state of Alabama to obtain their rights, when the courts of this state can afford them the same redress, as the courts of that state? Should the courts of this state presume that the courts of Alabama are more competent to administer the law applicable to the case, and send the plaintiffs there for that reason? When a foreign executor or administrator comes within the jurisdictional limits of this state, he is, in my judgment, liable to be sued here by the distributees of the estate which he represents, and to be made liable to the same extent as he would be liable according to the laws of the state in which he was appointed, and not otherwise. In what I have said, I have only expressed my individual opinion, and not that of the court. 3. But assuming the general rule to be, that an executor or administrator cannot be sued out of the state in which he was appointed, the special facts of this case, in our judgment, take it out of that general rule. It appears from the allegations in the plaintiff's declaration, that Jackson, the adminis VOL. LVI. 22. |