The courts of the United States have jurisdiction of suits by or
against executors and administrators if they are citizens of
different states, &c., although their testators or intestates
might not have been entitled to sue or liable to be sued in those
courts.
It is in general not necessary, in deriving title to a bill or
note through the endorsement of a partnership firm or from the
surviving partner, through the act of the law, to state
particularly the names of the persons composing the firm.
A declaration averring that "J.C, by his agent A.C., made" the
note, &c., is good.
A general profert of letters testamentary is sufficient, and if
the defendant would object to their insufficiency, he must crave
oyer or, if it be alleged that the plaintiffs are not executors,
the objection must be taken by plea in abatement.
Debt, against an executor, should be in the
detinet
only, unless he has made himself personally responsible, as by a
devastavit.
An action of debt lies upon a promissory note against the
executors.
The wager of law, if it ever had a legal existence in the United
States, is now completely abolished.
The defendants in error, citizens of the State of Maryland and
executors of John G. Comegys, the surviving partner of the late
firm of "William Cochran & Comegys," brought an action of debt
in the
detinet on a promissory note executed by
Page 21 U. S. 643
the said Anderson Childress as the agent of said Joel Childress,
both of whom were citizens of the State of Tennessee. The
declaration stated the plaintiffs in said suit (now defendants in
error) to be the executors of the last will and testament of John
G. Comegys, deceased, who was the surviving partner of the late
firm of William Cochran & Comegys; that on 1 May, 1817, the
said Joel Childress, by his agent, A. Childress, made his
promissory note to the firm of William Cochran & Comegys, and
thereby promised to pay to William Cochran & Comegys or order
the sum of $1,897.28 for value received. That the said Joel in his
lifetime did not pay the said firm of William Cochran &
Comegys, nor did he pay the said John G. Comegys, surviving partner
of said late firm of William Cochran & Comegys, the said sum of
money, or any part thereof, nor has he paid the same or any part
thereof to the said plaintiffs, executors as aforesaid, nor hath
the said Anderson Childress' executors as aforesaid paid the said
sum or any part thereof to the late firm of William Cochran &
Comegys, nor to John G. Comegys, surviving partner of the said
firm, nor hath he paid the said sum or any part thereof unto the
said plaintiffs, executors aforesaid, but so to do hath wholly
refused, and still doth, to the damage of said plaintiffs $500, and
therefore they sue, and they bring here into court the letters
testamentary, by which it will appear they are qualified,
&c.
To this declaration the defendant, now plaintiff
Page 21 U. S. 644
in error, demurred, and assigned for demurrer the following
causes:
1st. That said declaration alleges that said note was made to a
late firm of William Cochran & Comegys, and that the plaintiffs
are executors of the surviving partner of that firm, but whom said
partner survived or who comprised that firm does not appear.
2d. That an action of debt cannot be maintained against the
defendant, (now plaintiff in error), as executor upon a promissory
note.
3d. That it is not alleged that said pretended promissory note
was signed by said Joel Childress or the defendant.
4th. That the declaration omits to state any damages.
5th. There is no sufficient profert of any letters testamentary
to show the right of said plaintiffs to maintain this suit.
Joinder in demurrer. After argument, the court overruled all the
said causes of demurrer and gave judgment, that the plaintiffs do
recover the sum of $1,897.28 debt, together with $360.47 for their
damages sustained by reason of the detention thereof, as also their
costs, to be levied of the goods and chattels of Joel Childress,
deceased, in the possession of said Anderson Childress, and on
default thereof the costs to be levied of the proper goods of said
defendant.
Page 21 U. S. 668
MR. JUSTICE STORY delivered the opinion of the Court.
This is an action brought by the executors of John G. Comegys,
who was surviving partner of the firm of William Cochran &
Comegys, to recover the contents of a promissory note made by Joel
Childress, deceased (whose executor the plaintiff in error is),
payable to the firm of William Cochran & Comegys. The cause
came before the Circuit Court for the District of West Tennessee
upon a special demurrer to the declaration, and the court having
overruled the demurrer, it has been brought here by writ of
error.
The several causes assigned for special demurrer have been
argued at the bar, but before we proceed to the consideration of
them, we may as well dispose of the objection taken to the
jurisdiction. The parties, executors, are, in the writ and
declaration, averred to be citizens of different states; but it is
not alleged that their testators were citizens of different states,
and the case
Page 21 U. S. 669
has therefore, been supposed to be affected by the 11th section
of the Judiciary Act of 1789, c. 20. But that section has never
been construed to apply to executors and administrators. They are
the real parties in interest before the court, and succeed to all
the rights of their testators by operation of law, and no other
persons are the representatives of the personalty, capable of suing
and being sued. They are contradistinguished, therefore, from
assignees, who claim by the act of the parties. The point was
expressly adjudged in
Chappedelaine v.
Dechenaux,, 4 Cranch 306, and indeed has not been
seriously pressed on the present occasion.
The first cause of demurrer is that the declaration states the
note to have been made to the firm of William Cochran &
Comegys, but does not state who in particular the persons composing
that firm were. Upon consideration, we do not think this objection
ought to prevail. The firm are not parties to the suit, and if
Comegys was, as the declaration asserts, the surviving partner of
the firm, his executor is the sole party entitled to sue. It is not
necessary in general, in deriving a title through the endorsement
of a firm, to allege in particular who the persons are composing
that firm, for if the endorsement be made in the name of the firm
by a person duly authorized, it gives a complete title, whoever may
compose the firm.
See 3 Chitty's Plead. 2, 39. If this be
so in respect to a derivative title from the act of the parties,
more particularity and certainty do not seem essential in a
derivative title by the
Page 21 U. S. 670
act of the law. A more technical averment might indeed have been
framed upon the rules of good pleading, but the substance is
preserved. And there is some convenience in not imposing any
unnecessary particularity, since it would add to the proofs, and it
is not always easy to ascertain or prove the persons composing
firms, whose names are on negotiable instruments, especially where
they reside at a distance, and every embarrassment in the proofs
would materially diminish the circulation of these valuable
facilities of commerce.
Another cause of demurrer is that the declaration does not aver
that the note was signed by Joel Childress. To this it is
sufficient to answer that the declaration does state that "Joel
Childress, by his agent, A. Childress, made" the note, and it is
not necessary to state that he signed it; it is sufficient if he
made it. The note might have been declared on as the note of the
principal, according to its legal operation, without noticing the
agency, and though it would have been technically more accurate to
have averred that the principal, by his agent, in that behalf duly
authorized, made the note, yet it is not indispensable, for if he
makes it by his agent, it is a necessary inference of law that the
agent is authorized, for otherwise the note would not be made by
the principal, and that the demurrer itself admits.
See
Chitty on Bills, Appx. Sec. 528. and notes;
id., Bayley on
Bills 103. 2 Phillips Evid. ch. 1, s. 1, 4, 6.
Another cause of demurrer is that the declaration
Page 21 U. S. 671
omits to state any damages; but this, if in any respect material
in an action of debt, is cured by the writ, which avers an
ad
damnum of $500.
Another cause of demurrer is that the letters testamentary are
not sufficiently set forth to show the right of the plaintiffs to
sue. But profert is made of the letters testamentary in the usual
form, and if the defendant would have objected to them as
insufficient, he should have craved oyer so as to have brought them
before the court. Unless oyer be craved and granted, they cannot be
judicially examined. And if the plaintiffs were not executors, that
objection should have been taken by way of abatement, and does not
arise upon a demurrer in bar. It may be added that by the laws of
Tennessee, executors and administrators, under grants of
administration by other states of the Union, are entitled to sue in
the courts of Tennessee without such letters granted by the state.
Act of Tennessee, 1809, ch. 121, s. 1, 2.
It was also suggested at the bar, but not assigned as cause of
demurrer, that the action ought not to have been in the
detinet only, but in the
debet et detinet. This
is a mistake. Debt against an executor in general should be in the
detinet only, unless he has made himself personally
responsible, as by a
devastavit. Comyn's Dig. Pleader, 2
D, 2; 1 Chitty's Plead. 292, 344. 2 Chitty's Plead. 141, note f.
Hope v. Bague, 3 East 6, 1 Saund. 1, note 1. 1 Saund. 112,
note 1. And if it had been otherwise,
Page 21 U. S. 672
the objection could only have been taken advantage of on special
demurrer, for it is but matter of form, and cured by our statute of
jeofails.
Burland v. Tyler, 2 Lord Raym. 1391; 2 Chitty's
Pl. 141, note f; act of 1789, ch. 20, s. 32.
But the most important objection remains to be considered, and
that is that an action of debt does not lie upon a promissory note
against executors. It is argued that debt does not lie upon a
simple contract generally against executors, and the case of
Barry v. Robinson, 4 Bos. & Pull. 293, has been cited
as directly in point. Certainly if this be the settled rule of the
common law, we are not at liberty to disregard it, even though the
reason of the rule may appear to be frivolous or may have ceased to
be felt as just in its practical operation. But we do not admit
that the rule of the common law is as it has been stated at the
bar. We understand, on the contrary, that the general rule is that
debt does lie against executors upon a simple contract, and that an
exception is that it does not lie in the particular case where the
testator may wage his law. When, therefore, it is established in
any given case that there can be no wager of law by the testator,
debt is a proper remedy. Lord Chief Baron Comyns lays down the
doctrine that debt lies against executors upon any debt or contract
without specialty where the testator could not have waged his law,
and he puts the case of debt for rent upon a parol lease to
exemplify it. Com.Dig. Administration, B. 14.
See also
Com.Dig. Pleader, 2 W. 45, tit. 2 D. 2. The same
Page 21 U. S. 673
doctrine is laid down in elementary writers. 1 Chitty's Plead.
106; Chitty on Bills, ch. 6, p. 426. Upon this ground, the action
of debt is admitted to lie against executors in cases of simple
contract, in courts where the wager of law is not admitted, as in
the courts of London, by custom. So in the court of Exchequer upon
a more general principle, the wager of law is not allowed upon a
quo minus. Com.Dig. Plead. 2 W. 45; Godbolt 291. 1
Chitty's Plead. 106, 93. Bohun's Hist. of London 86. The reason is
obvious -- the plaintiff shall not, by the form of his action,
deprive the executor of any lawful plea that might have been
pleaded by his testator, and as the executor can in no case wage
his law, Com.Dig. Pleader, 2 W. 45, he shall not be compelled to
answer to an action, in which his testator might have used that
defense. Even the doctrine, with these limitations, is so purely
artificial that the executor may waive the benefit of it, and
therefore, if he omits to demur and pleads in bar to the action and
a verdict is found against him, he cannot take advantage of the
objection either in arrest of judgment or upon a writ of error. 2
Saund. 74, note 2, by Williams, and the authorities there cited.
Norwood v. Read, Plowd. 182; Cro.Eliz. 557. Style, in his
Practical Register, lays down the rule with its exact limitations.
"No action," says he,
"shall ever lie against an executor or administrator where the
testator or intestate might have waged their law, because they have
lost the benefit of making that defense, which is a good defense in
that action,
Page 21 U. S. 674
and if their intestate or testator had been living, they might
have taken advantage of it."
Style's Pr.Reg. and Comp.Atty. in courts of common law (1707),
666.
In the view, therefore, which we take of this case, we do not
think it necessary to enter into the consideration whether the case
in 4 Bos. & Pull. 293, which denies that debt will lie against
executors upon a promissory note of the testator, is law. There is
indeed some reason to question, at least since the statute of Anne,
which has put negotiable instruments upon a new and peculiar
footing, whether, upon the authorities and general doctrines which
regulate that defense, it ought to be applied to such instruments.
The cases cited at the bar by the plaintiff's counsel contain
reasoning on this point, which would deserve very serious
consideration. But waiving any discussion of this point and
assuming the case in 4 Bos. & Pull. 293 to have been rightly
decided, it does not govern the case now before the Court, for that
case does not affect to assert or decide that the action of debt
will not lie in cases where there can be no wager of law.
Now whatever may be said upon the question whether the wager of
law was ever introduced into the common law of our country by the
emigration of our ancestors, it is perfectly clear that it cannot,
since the establishment of the State of Tennessee, have had a legal
existence in its jurisprudence. The Constitution of that state has
expressly declared that the trial by jury shall remain inviolate,
and the Constitution of the United
Page 21 U. S. 675
States has also declared that in suits at common law, where the
value in controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved. Any attempt to set up the wager
of law would be utterly inconsistent with this acknowledged right.
So that the wager of law, if it ever had a legal existence in the
United States, is now completely abolished. If, then, we apply the
rule of the common law to the present case, we shall arrive
necessarily at the conclusion that the action of debt does lie
against the executor, because the testator could never have waged
his law in this case.
Upon the whole, the judgment of the circuit court is
Affirmed with 6 percent damages and costs.
