Childress v. Emory

Jurisdiction,. — Action against executors. — Prof ert. — Debt.— Wager of laxo. 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.1 It is, in general, not necessary, in deriving title to a bill or note, through the indorsement 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, &e., is good. A general prof ert of letters-testamentary is sufficient; and if the defendant would object to their sufficiency, he must crave oyer, or, if it be alleged that the plaintiffs are not executors, the objection must be taken by plea in abatement.2 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 executors. The wager of law, if it ever had a legal existence in the United States, is now completely abolished.

Eeeob to tbe Circuit Court of Tennessee. Tbe defendants in error, citizens of tbe state of Maryland, and executors of John G. Comegys, tbe surviving partner of tbe late firm of “ William Coebran & Comegys,” brought an action of debt, in the detinet, on a promissory note, executed by *the said Anderson Childress, as tbe agent of said Joel Childress; both of whom were citizens of tbe state of Tennessee. Tbe declaration stated tbe plaintiffs in said suit (now defendants in error) to be the executors of the last will arid 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 mot, in Pillans v. Van Meirop, is itself too broad ; *for, though the common law has not adopted the well-known distinction of the civilians, between contracts ex Uteris and ex verbis, yet notes and bills are exceptions, firmly ingrafted on the general rule. Secondly. If, then, these instruments, at all times imported a primé faeie consideration, the statute has clothed them with an additional property. They are no longer mere choses in action; their simple negotiability, though they remain in the hands of the original parties, imparts to them a further dignity, which distinguishes them from all other simple contracts ; they are originally evidences of debt, and, after indorsement, the statute raises an irresistible presumption in favor of honest holders, a presumptio juris et de jure. May we not, then, assert, with confidence, that these instruments, which have sprung into life and utility, long after the wager of law had gone into almost desuetude, cannot be those “secret contracts, whose feebleness and exility” should subject them to avoidance by the defendant’s oath ? Again, it will be borne in mind, that when wager of law was first prac-tised, the principle which would not allow an action of debt on simple contract, against an executor, also deprived the creditor of every other remedy. The maxim then applied, was actio personalis moritur cum personé. But after the introduction of the action of assumpsit, it was held by the courts, not only that the debt survived against the personal representatives of the deceased, but the debtor himself ‘'’was not permitted to wage his law in this form of action. It is manifest, however, that both of these opinions originated in the mistaken application of the principle which sustained wager of law, viz., to the form of the remedy, instead of the evidence of the debt; and that, in truth, there was no legal necessity to resort to such refinements, to get rid, either of the maxim, or of wager of law. When case on assumpsit was introduced, promissory notes were scarcely known. Prior to Elizabeth’s reign, debt was the only remedy on simple contract. The Tear Books furnish no instance of the action of assumpsit, and Slade's Case, 4 Co. 92 (44 Eliz.), is the first judicial sanction of.this form of action. This was shortly after followed by Pinchón's Case, 9 Co. 86, in which assumpsit was enforced against executors, and wager of law was denied to the testator. But in introducing the remedy by assumpsit, it was by no means the design of the courts to abolish the remedy by debt on simple contract. It was an additional remedy, intended to avoid an inconvenient maxim in one case, and a no less inconvenient mode of trial in another. The action of debt, however, remained a suitable remedy, in all cases of simple contract, were wager of law would not lie. In tbe case now under consideration, assumpsit might, indeed, have been brought against the executors of Childress. If, in debt against Childress himself, he *could not have waged his law, why should this remedy be denied against his executors ? If the testator had not this privilege, the plaintiff had his election to sue in debt or assumpsit. Of late, debt on simple contract has become a more favorite and practised remedy. In some respects, it is preferable to assumpsit; for, in debt, the judgment is final, and not interlocutory, as in assumpsit. The defendant, also, in some cases, is com-pellable to find bail in error, though the judgment be by nil dicit, or on demurrer. 1 H. Bl. 550 ; 3 East 359 ; 2 Saund. 216 ; 1 Chit. PI. 107. Both in England and this country, debt is brought on notes and bills, wherever the responsibility is not merely collateral (Bishop v. Young, 2 Bos. & Pul. 78 ; Raborg v. Peyton, 2 Wheat. 385), and no reason can be assigned for refusing it in the present case, except the one I have endeavored to show was never applicable to this species of simple contract. It is material to be recollected, that wager of law was not, at any time, a well-fixed or established privilege. In the reign of Edward III., the courts very consistently held, that where a testator might wage his law, his executors might also. 29 Edw. III. 36 b, 37 a. The grounds of its application were always, in a degree, uncertain ; and its admission or rejection, was under the sound discretion of the court. Wager of law, says Ch. Baron Ward, is a matter ex gratid curiae. Judges are to use a sort of discretion in admitting people to it. 12 Mod. 676. *As to the recent case of Barry v. Robinson, 4 Bos. & Pul. 293, it does, indeed, decide, that an action of debt cannot be maintained against an executor or administrator, on the simple-contract debt of his testator or intestate, such as a promissory note ; and the reason assigned for denying the remedy, was the one I have endeavored to refute. But ought this case to outweigh those which have been advanced in support of a contrary opinion ? It is a solitary case, standing amidst the accumulated decisions of centuries. From the days of Elizabeth, to the year 1805, and since, no case can be found, in which wager of law has been applied to the case of a promissory note, though debt has been frequently brought on notes and bills. The point now under consideration passed sub silentio in the case of Barry v. Robinson; it was not adverted to, either in the argument at the bar, or by the court. Had the question been made, and the mind of the court been expressly directed to the distinction between these evidences of debt, and other simple contracts, the decision must have been different. In that' case, perhaps, there was no objection to resort to another form of action ; but in the circumstances of the present case, if this action cannot be sustained, it will be of little avail to prosecute in another form. Sir James’ Maitseield, in that case, rested his opinion, on the distinction between debt and assumpsit, as applicable to the case of executors ; but no inquiry was' made as to the nature of the proof to sustain *the action. He admitted, that the distinction was not founded in good sense, but denied his power to alter the law. I have endeavored to show, that the law needed no alteration, as this summary mode of trial was not applicable, and never had been applied to such substantial evidences of debt as notes and bills. 2. But even supposing that, by the common law of England, the testator ®ould have waged his law, in this case, is it proper, that this antiquated doctrine should be adopted as a part of our jurisprudence ? The wager of '¡battle, and the various other barbarous modes of trial invented by a superstitious age, are equally portions of the common law; yet, all will allow, Shat they are wholly at variance with the genius and spirit of our institutions, and are not fit to be incorporated with our jurisprudence. At one tíme, the plaintiff was obliged to produce his secta ; and, though our declarations .still conclude with an inde producit sectam, in compliance with the fashion of former times, yet, an attempt at this day, practically to revive this preliminary proof, would, no doubt, be regarded as the result of a most adventurous and indiscriminate admiration of the common law. 3. The wager of law has never been adopted in this country. The reported adjudications of this country do not allude to the distinction between debt and assumpsit on simple contracts, nor is wager of law once mentioned in any ^em. The statutes of the various states are equally *silent, with the exception of New Jersey (Rev. Laws of N. J. 1796), and South Carolina (G-rimke’s Laws of S. C.). In the former state, wager of law is abolished in all cases, except of non-summons in real actions ; and in South Carolin, wager of law is abolished in the action of detinue. This provision, ao doubt, was ex ábundanti cautelé. Detinue is there a practical remedy for the recovery of slaves, being preferable to replevin or trover. As slaves are not connected with the realty, so as to oust the wager of law, if it otherwise obtained, it might have been supposed, that this mode of trial would be attempted, in detinue for slaves, and to remove this possibility, the statute was enacted, for there is no instance of its adoption in this, or any other action ; nor does the present record furnish any reason for supposing, that st is known to the law or practice of the courts of Tennessee. It is also proper to remark, that promissory notes, in the state of Tennessee, rest on precisely the same principles as in England ; and the statute of Anne is there in force. Wager of law is a mode of trial, hostile to the liberal spirit ©f our laws. By this trial, the defendant becomes not only a witness in his own cause, but the only witness ; and one, too, who cannot be contradicted either by proofs or circumstances. The judgment thereon is final; more conclusive than a verdict, for, when the defendant is sworn defidelitate, and his eleven compurgators de credulitate, :⅛11 controversy is terminated. There could be no new trial, for any cause whatever. 2 Salk. 682 ; S Yent. 171 ; 12 Mod. 676. If ever so flagrantly abused by perjury, there ©an be no remedy; for it was a well-established maxim, “ indictment for perjury lies not for false swearing in the trial by wager of law.” 1 Vent. 296 ; Co. Litt. 295. The mock solemnity in the manner of waging law, would ill suit the simplicity of judicial proceedings in this enlightened age and country. Braeton 411 ; Fleta 137 ; 2 Lili. Abr. 824. Trial by jury is the only mode of trial known to our common-law jurisprudence. The judiciary act of 1789, c. 20, § 34, provides, that the laws of the several states shall be rules of decision on all trials at common law, except where the laws of the United States shall otherwise require. The constitution expressly guaranties trial by jury, in all common-law cases, where the amount exceeds $20. And though the phraseology of this article of the constitution seems to aim at the preservation of that which was before the admitted mode of trial, yet there can be no doubt, that it was a primary object to abolish all summary trials, all barbarous and unsuitable modes of judicial investigation. The other causes of demurrer may be more briefly examined. It is clear, from the declaration, that the firm of William Cochran & Comegys waé composed of but two persons, viz., William Cochran and Comegys. The declaration alleges, that John G. Comegys was the surviving partner of this firm, and this is equivalent to an ^express averment that the Comegys of the firm, and John G. Comegys, who survived, are the same persons ; that the firm was composed of none else, and that John G. Comegys survived William Cochran. The forms of declaring or pleading do not require that every possible inference should be negatived. All that is required, is “ certainty to a common intent,” or, at most, “ certainty to a certain intent in generalby which is meant, what, upon a fair and reasonable construction, may be called certain, without recurring to possible facts, which do not appear. 2 H. Bl. 530 ; Cowp. 682 ; 1 Saund. 270 ; 1 Chit. PI. 237. This species of certainty is sufficient in all declarations, replications and even indictments. If there be sufficient certainty, to enable the defendant to answer, the jury to decide, and the court to render judgment, it is well, though the nicety of critics may not be gratified. It is said, that a more rigid certainty is sometimes required, but this is doubtful; and if not, it obtains only in two cases, viz., in pleas of estoppel, and alien enemy, which are not favored, and are, therefore, said to demand a certainty to “ a certaint intent in every particular.” 8 T. R. 167 ; 1 Doug. 159. On inspecting this declaration, could a reasonable doubt be entertained by the defendant below, the court or jury, that this firm was composed of any but the two persons mentioned, and that John G. Comegys is the person alluded to in the firm, and in the note, and that he survived William Cochran ? The next objection to the declaration regards *the mode in which Joel Childress is alleged to have made this note. But it would not have been proper to have stated, that the note was signed by Joel Childress, for this was not the fact; nor that it was made by A. Childress, for .the debt was not his, but Joel’s. The declaration might have stated, that the note was made by Joel, without noting the agency, for this is its legal operation. But the allegation in this case is according to the fact, viz., that “ the said Joel Childress, by his agent, A. Childress, made,” &e., and this is the safest and usual mode. Whether A. Childress were the lawfully-authorized agent of Joel, is matter of proof, not of pleading. 1 H. Bl. 313 ; 6 T. R. 659; 2 Phil. Ev. 4, 5, note a; Chit, on Bills 627, note a, note b. It is also objected, that there is no sufficient profert of the letters testamentary ; and that it does not appear, from what authority they emanated. The omission of profert is, no doubt, cause of special demurrer ; but where profert is made, its sufficiency is matter of evidence only, and a demurrer to it, as evidence, would lie. But the demurrer in this case, is not for the omission, nor for defectively making the profert, nor does it appear in the shape of a demurrer to evidence, complaining of the insufficiency of the authority granting the letters. But were this the case, non constat from this record, by whom they were granted, which surely was the fault of the plaintiff in error, not of the defendant; how the court below was to have judged this matter, or how this court *can judge of the sufficiency of the letters, for they do not appear to have been legally before the court below, and they are not before this in any form. This was the fault of the defendant below. After th⅛ proferí, he should have craved oyer, and then demurred. 2 Wils. 413; 1 Chit. PL 416. But this demurrer, I presume, cannot be sustained on any ground ; for if the letters proffered were those of the state of Tennessee, the plaintiffs’ right to sue will not be questioned : and if the letters were granted in Maryland, the statute of 1809, c. 121, § 1, 2, of Tennessee, expressly authorizes executors or administrators to sue in the courts of that state, under letters granted by any of the sister states. The last objection which has been made, is to the jurisdiction of the court, viz., that the declaration only avers the parties to this suit to be citizens of different states, but has not stated their respective testators to be citizens of different states. But this is not a case embraced by the 11th section of the judiciary act of 1789, c. 20. Executors are not assignees, within the letter or spirit of that act: they are something more than assignees ; they are representatives, who are not mere instruments, for they have the property of their testator, both legal and equitable, vested in them. They are the absolute owners of the property, as to all strangers : they are the lords of all the contracts made with their testator; they may release, sue or receive payment on them ; *and until the estate is settled, not even the legatees or distributees can interfere with them. This is a case, then, under the constitution; and the controversy is between citizens of different states, not nominally merely, but substantially. It is, therefore, immaterial to inquire, whether their respective testators were citizens of the same, or of different states. Chappedelaine v. Deehenaux, 4 Cranch 306 ; Serg. Const. Law 113, 117.