Anderson Childress Joel Childress v. Emory Cleur John Comegys William Cochran Comegys

• Decision Date: 14 March 1823
• Citation: 8 Wheat. 642,21 U.S. 642,5 L.Ed. 705
• Parties: ANDERSON CHILDRESS, Executor of JOEL CHILDRESS, Plaintiff in Error, v. EMORY and M'CLEUR, Executors of JOHN G. COMEGYS, surviving partner of WILLIAM COCHRAN & COMEGYS, Defendants in Error
• Court: U.S. Supreme Court

21 U.S. 642

5 L.Ed. 705

8 Wheat. 642

ANDERSON CHILDRESS, Executor of JOEL CHILDRESS, Plaintiff in Error, v. EMORY and M'CLEUR, Executors of JOHN G. COMEGYS,

surviving partner of WILLIAM COCHRAN & COMEGYS,

Defendants in Error.

March 14, 1823

ERROR to the Circuit Court of Tennessee. The defendants in error, citizens of the State of Maryland, and executors of John G. Comegys, the surving partner of the late firm of 'William Cochran & Comegys,' brought an action of debt in the detinet, on a promissory note, executed by

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 the first of 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 1897 dollars and 28 cents, 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's 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 dollars; 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 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 1897 dollars and 28 cents, debt, together with 360 dollars and 47 cents, 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.

March 8th.

Mr. Webster, for the plaintiff in error, argued, 1. That the action was misconceived, debt not being an appropriate remedy against an executor or administrator, on a simple contract. He conceived it unnecessary to inquire into the origin of this rule, or the principle which sustained it, as it rested on the clearest authorities of the English law, and had become an established doctrine, from which this Court would not be inclined to depart; as it was of more consequence that the law should be certain and fixed, than that plaintiffs should be allowed a choice of remedies. Because the reason, on which a remedy may have been originally given or refused by the law, may have ceased, it does not, therefore, follow, that the established rules of practice and pleading are to be altered. The wager of law has ceased, but many rules of practice and pleading, founded upon it, have survived, and have become rules of property, which cannot be now safely disturbed. The statute of limitations may or may not apply, according to the form of the action, and the party has a right to the benefit of the distinction. On the English law it is clear that debt cannot be maintained in this case, as the testator might have waged his law, which none can do who defend in a representative character; hence it is, that in the case of simple contracts, debt has been superseded by the action of assumpsit, in which, as the testator could not have waged his law, his executor is not deprived of any defence which might have been used by the testator.^a 2. The next cause of demurrer, in this case, is the want of certainty in the declaration, which states the note to have been made to a late firm of 'William Cochran & Comegys,' and that the plaintiffs are executors of the surviving partner of that firm; but of whom that firm was composed, or whom the said partner survived, do not appear. It cannot be inferred that the firm of William Cochran & Comegys was composed of William Cochran and John G. Comegys, nor that the latter survived the former, and is the Comegys alluded to in the firm, and in the note in controversy. These are matters which should have been stated with sufficient certainty, and not have been left to mere conjecture.^b

3. This declaration is defective, also, in not stating that the note was either signed by Joel Childress, or by Anderson Childress, or by him as the lawfully authorized agent of Joel.

4. There is no sufficient profert of any letters testamentary, evincing the right of the defendants in error to maintain this suit. The authority whence they emanated does not appear. An executor must show by whom his letters were granted; and here it does not appear whether they were granted in Maryland, or in the State of Tennessee.^c

5. The declaration states the defendants in error to be citizens of the State of Maryland, and the plaintiff in error to be a citizen of the State of Tennessee; but it is not stated that the testators of either party were citizens of different States: non constat, but they were all citizens of the State of Tennessee.^d The case, therefore, may be considered as falling within the provisions of the Judiciary Act of 1789, c. 20.

Mr. D. Hoffman, contra, argued, that the action of debt was an appropriate remedy on a promissory note, against the personal representatives of the maker or endorser of such note. The reason assigned in England for denying this remedy against an executor or administrator, does not apply even in that country to the case of a promissory note, which is not that species of simple contract to which the books allude, when speaking of the trial by wager of law.

The question is altogether new, even in that country whence we are to derive our law on this obsolete subject; and has never received a judicial discussion or determination in this country. Some research, therefore, into this ancient subject, will be essential to its due determination. It is said, that debt will not lie against an executor, on the simple contract debt of his testator; and, in England, this, as a general proposition, is undoubtedly true. Still, however, it can, with no propriety, be compared to a rule of property, which, though now, in many instances, arbitrary and unmeaning, must be maintained, as long possessions, valuable estates, and the firmest titles may be dependent on it. But, whether a creditor by simple contract resorts to the one remedy or the other, is of no consequence to any one but himself. This election of remedy, then, will not be denied, unless for an adequate reason. This Court is under no necessity to sanction an unmeaning dictum of English law, at all times absurd, and at no period either approved by the lawyers of the times, or settled on any fixed principle. No reason has ever been assigned for exempting executors from responsibility on this remedy, except the one, that as none, who defend jure repraesentationis, can wage their law, and as the testator, in debt on simple contract, had this privilege, the executor shall not be thus sued. But it will be endeavoured to be shown, that this was originally a gross perversion of reason; that the rule should have been either the reverse, or that, in order to preserve any thing like consistency in the law, executors and administrators ought never to have been responsible, in any form of action, for the simple contracts of those whom they represent.

The inquiry then will be, (1) Whether the testator was ever permitted, even in England, to wage his law, in debt on a promissory note. (2) If he were allowed, whether this antiquated doctrine of the common law is proper to be adopted as a part of our jurisprudence. (3) Whether in law, or in practice, it ever has been recognised, or used, in the State of Tennessee, or elsewhere in this country.

1. On examining the history and progress of this singular species of trial, it will be found to have been uniformly applied to the evidence of the demand, and was in no case an incident to the nature of the action or remedy. Whenever the debt or demand was sufficiently evidenced, whenever it was notorious in its nature, or defined in its extent; or, finally, whenever it did not rest merely in verbis, there wager of law did not obtain. We may, then, inquire, first, in what cases wager of law was not allowed by the common law; and, secondly, in what description of cases it was permitted; and, from an examination of the reasons which sustained, or repudiated wager of law in these cases, we shall find that, in principle, it never could have been applied to the case of a promissory note, and that, in fact, it...