The Jeffersonville Railroad Company v. Swift.

introduced only to show his own contradictory statements, made out of court, that the conductor directed him to jump.

In concluding this opinion it may be proper to remark, that where a passenger leaves a train when in motion, and is induced so to do by a well grounded apprehension of peril to life or limb, as when a collision is about to happen, or the train to go down a precipice, resulting from mismanagement of the train, or the negligence of the railroad company, or its agents, and he thereby receives an injury, he may recover therefor, although it should appear that leaping from the train under such circumstances contributed to the injury, or was even the sole cause thereof. Redfield on Railways, § 151, p. 334; Ingalls v. Bills, 9 Met. (Mass.) 1; Stokes v. Saltonstall, 13 Pet. 181; Frink v. Potter, 17 Ill. 406. But whether a passenger of mature years and understanding, who leaps from a train in motion when no danger threatens, even by the order or command of the conductor, but without any threat of violent expulsion, can recover for an injury occasioned thereby, we do not determine. In Sanford v. The Eighth Avenue R. R. Co., 23 N. Y., 343, it was said by COMSTOCK, C. J., that "a person cannot be thrown from a railroad train in rapid motion, without the most imminent danger to life; and although he may be justly liable to expulsion, he may lawfully resist an attempt to expel him in such a case. As the refusal of a passenger to pay fare will not justify a homicide, so it fails to justify any act which in itself puts human life in peril; and the passenger has the same right to repel an attempt to eject him, when such an attempt will thus endanger him, that he has to resist a direct attempt to take his life."

A passenger is not bound to leave the train when it is in motion at the command of the conductor. He may disobey such command with impunity, and may resist an effort made to enforce it; but when no threat of violent expulsion is made, and the passenger is still left in the free exercise of his will, and seeing and knowing the peril of the act, leaps from the train at the command of the conductor, and is

The Jeffersonville Railroad Company v. Swayne's Administrator.

injured, can it be said that his own unnecessary and impru dent conduct has not contributed directly to the injury? We do not decide the question. The court below, for the reason stated, erred in overruling the motion for a new trial.

The judgment is reversed, with costs, and the cause remanded for a new trial, with directions that the demurrer to the first paragraph of the complaint be sustained, and for further proceedings, &c.

T. A. Hendricks, S. E. Perkins, O. B. Hord and A. W. Hendricks, for appellant.

THE JEFFERSONVILLE RAILROAD COMPANY v. SWAYNE'S AD

MINISTRATOR.

LETTERS OF ADMINISTRATION.-REVOCATION OF.-A railroad company against whom an action is being prosecuted by an administrator to recover damages for an injury causing the death of the intestate, has such an interest as to make it a competent party to petition the court for a revocation of the letters of administration. Page 480.

SAME.- Quære, whether the statute which provides that where, in a suit by an administrator, the authority of the administrator is denied under oath, a duly authenticated copy of his letters of administration "shall be all the evidence necessary to establish such right," should be construed to mean that such evidence is conclusive. Page 481. SAME. It seems that when letters of administration are issued in a county where the granting of them is not authorized by statute, the court in which they are issued may, upon its own motion, institute proceedings to set them aside, or it may be done by any one interested in anywise in the estate, or on the suggestion of an amicus curiæ. Page 482. JURISDICTION. LETTERS OF ADMINISTRATION.-The jurisdiction of the court to grant letters of administration is derived from the statute, and can only be exercised in the cases provided for thereby. Page 483. SAME.

Where the intestate was not an inhabitant of this State at the time of his death and left no assets in the State, and none come into it afterwards, no jurisdiction is conferred on the court to grant letters of admin

The Jeffersonville Railroad Company v. Swayne's Administrator.

istration in any county of the State, and such letters, if granted, are coram non judice and void. Page 483.

SAME. ASSETS. The term "assets," as used in the third and fourth clauses of section seven of the act relating to the settlemement of decedents' estates, (2 G. & H., 485,) means assets of the intestate; that is, property, rights or choses in action held by, or belonging to, the intestate at the time of his death, and which are subject to be applied by the administrator to the payment of debts. Page 483. SAME.-ACTION For Causing DeaTH.-A claim for damages for causing the death of a party, under section 784 of the code, is prosecuted by the administrator for the benefit of the widow and children, or next of kin, of the deceased, and is not assets of the deceased within the meaning of the statute authorizing the granting of letters of administration in this State. Page 485.

APPEAL from the Marion Common Pleas.

ELLIOTT, J.-The appellant filed a petition in the Marion Common Pleas, praying that the letters of administration granted by the clerk of said court to John A. Beal, the appellee, on the estate of Isaac L. Swayne, deceased, might be revoked and set aside. The court sustained a demurrer to the petition, and rendered a final judgment against the appellant for costs. The appellant excepted, and appeals to this court.

The material allegations of the petition are as follows: That the appellant is a corporation duly organized under the laws of the State of Indiana, with power to construct, equip, use and own a railroad, extending from the city of Jeffersonville through the counties of Clark, Scott, Jackson, Bartholomew and Johnson, to the city of Indianapolis, Marion county, in said State; that under the authority of its charter, the said Railroad Company constructed and equipped a railroad from the city of Jeffersonville to the town of Edinburgh, Johnson county, and still owns and uses the same between said points; that between the town of Edinburgh and the city of Indianapolis, said company runs her locomotives and trains upon and over the road and track of the Indianapolis and Madison Railroad Company, under and by virtue of a contract with the latter company, by which the appellant pays said Indianapolis and Madison Railroad Company a

The Jeffersonville Railroad Company v. Swayne's Administrator.

specific sum per mile for the distance run on the road of the latter between Edinburgh and Indianapolis, by cach locomotive and car of the appellant; that the principal office of said Jeffersonville Railroad Company is, and has been, situated at the city of Jeffersonville; that on the

day of 1864, the said Isaac L. Swayne was a passenger on one of the appellant's trains, from the town of Seymour, Jackson county, to the city of Jeffersonville; that an accident occurred to said train while passing over the appellant's road, in the county of Clark, which the appellant claims was unavoidable, causing an injury to said Swayne, from which he afterwards died in said county of Clark, and that he continued in said county from the time of the injury until his death. It is also alleged that said Swayne was neither a resident nor an inhabitant of the State of Indiana, but was a resident and inhabitant of the State of Pennsylvania, at the time of his death, and was merely a passenger through the State of Indiana, on the appellant's road, from the town of Seymour to the city of Jeffersonville, for some point south of the Ohio river; that he died intestate, leaving no property, real or personal, nor any right of action in the State. of Indiana, or in any county thereof, to be administered, nor has any personal property or right of action of his come into said State, or any county thereof, since his death, unless there exists some liability for damages against the appellant for the injuries occasioning his death, which the appellant denies; that on the 8th day of February, 1865, said John A. Beal filed his affidavit with the clerk of said Marion Court of Common Pleas, in which he stated that said Swayne departed this life at said county of Marion, on the 4th day of April, 1864, and that he had no personal property to be administered, except "a claim for unliquidated damages against The Jeffersonville Railroad Company, for causing his death;" that said Beal thereupon filed a bond in the penalty of $1,000, conditioned for the faithful discharge of his duties as administrator of the estate of said Swayne, and procured letters of administration to be issued to him. It is

The Jeffersonville Railroad Company v. Swayne's Administrator.

further alleged that afterwards, on the 2d day of March, 1865, said Beal instituted an action in the Marion Circuit Court, to recover damages against the appellant for causing the death of said Swayne, which is still pending in said court. For the reasons stated, it is alleged that the letters of administration so granted to Beal are void; that neither the clerk, nor the Court of Common Pleas of Marion county, had any jurisdiction over the subject, or power to issue said letters; that they were procured to be issued on the affidavit of said Beal, the allegations of which are untrue, so far as they differ from the allegations of the petition. Prayer that the letters be canceled, and that Beal be removed, &c.

Before examining the question as to whether the letters of administration were, or were not, properly issued to Beal, under the state of facts alleged in the petition, it is proper that an objection urged by the appellee to the right of the appellant to claim their revocation, although illegally issued, should be first disposed of.

The appellee insists that it is not shown that the railroad company has any interest in the damages that might be recovered against it in the suit by Beal for causing the death of Swayne, nor in the proper administration of the estate of the latter, and therefore cannot be permitted to present to the court the question of the legality of the grant of the letters of administration. It is true that the railroad company would not be a recipient of any portion of the damages that might be recovered against it for causing Swayne's death, yet it has a direct legal interest in the event of that suit, not as the claimant of the damages, but as the defendant against whom they are sought to be recovered. It is shown by the petition, and also by the affidavit of Beal, that the only object in procuring the letters of administration was the recovery of damages against the railroad company for causing Swayne's death, by the prosecution of a suit or otherwise. Upon the institution of such a suit by Beal, claiming to be the legal representative of Swayne, it was the undoubted right of the railroad company to inquire