# Childress v. M'Cleur/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
21 U.S. 642
Childress v. M'Cleur
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 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's Rep. 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 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. Sect. p. 528. and notes, id. Bayley on Bills, 103. 2 Phillips' Evid. ch. 1. s. 1. p. 4. 6.)
Another cause of demurrer is, that the declaration 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 dollars.
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. Rep. 1. note 1. 1 Saund. 112. note 1.) And if it had been other wise, 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, in 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 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 defence. 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. Rep. 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 defence, which is a good defence in that action; 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,) p. 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 defence, 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 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 per cent. damages, and costs.

## Notes

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