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 never has been so applied.

First, then, wager of law was not allowed in the following cases: (1) In an
action of debt on any specialty; for here, as Plowden observes, a debt is
contracted by three distinct acts of solemn consent, signing, sealing, and
delivery of the instrument; each act strengthens the evidence of
consideration, and adds force and efficacy to the demand. It would not be
proper, therefore, that a mere act in pais, or the oath of the party, should
render that inoperative which has been guarded by so many acts of
deliberation. The maxim in such case being, unumquod que dissolvitur eo
modo quo colligatur. (2) In debt on any record, there can be no wager of
law, for similar reasons. The debt has become notorious and certain: the
record brought it into existence, and, at law, the record should ordinarily
declare its annihilation. (3) In an action of debt for rent, even on a parol
lease, the defendant is not permitted to wage his law, because, as it is said,
the demand savours of the realty, which, in fact, means, that the claim
arises from the defendant's perception of the profits of the land; that his
occupation is notorious, his entry into the land was, perhaps, coram
paribus curice, and if not, that the notoriety of his occupation should, on
the principle I have stated, oust the wager of law. (4) So, in an action of
account, where the receipts have been by the hands of a third person, and
not from the plaintiff himself, wager of law will not lie; and the reason
assigned is, that this third person may well be supposed competent to
prove the receipts, and this supposition, per se, is sufficient to exclude the
wager of law. (5) In debt by a gaoler against his prisoner, or by an
innkeeper against his guest, for board, &c. the defendant cannot resort to
this mode of trial; and the principle which excludes it in these cases, is
essentially the same, viz. the presumed notoriety of the demand. Prisons
and inns are quasi publici juris; the prisoner and the guest must be
received, and their reception is not a matter of privacy, but is presumed to
be provable. Aliter, in the case of a victualler, who sues for matters
furnished to his customers; his claim may be defeated by the defendant's
oath. e (6) Wager of law is not permitted in debt for any penalty given by
statute, for this is a matter in consimili casu with debts by specialty or
record. (7) Nor was it allowed against an account settled by auditors, for
here the debt becomes susceptible of proof, is rendered certain, and
though still a simple contract debt, yet, as it does not rest in verbis merely,
it shall not be left to the conscience only of the defendant. (8) Where the
claim or demand was in any degree connected with the realty, wager of
law would not lie; for the pares curice were supposed to be cognizant of
such matters. Hence, for example, where the plaintiff leased a room to the
defendant, and then took him and his wife to board; in debt, for the
boarding, it was held, that even this accidental connexion of the matter

with the realty, was sufficient to rescue it from the operation of the wager
of law.f (9) So, in debt for wages due for serving under the statute of
labourers; as the service is compulsory and notorious, the defendant
cannot wage his law. (10) Likewise, in debt by an attorney for his fees,
though there be no writing, yet, as he is an officer of the Court, his
demand cannot be defeated by wager of law.g (11) Waget of law is never
permitted in the case of contempt, trespass, or deceit, for these, per se,
charge the defendant with immoral conduct, which renders his oath
suspicious.h (12) Nor will it lie in a quo minus, for reasons similar to those
already suggested.i (13) Nor against any claim founded on prescription,
for this is notorious, and susceptible of proof.j (14) Lastly; in an action of
debt by a merchant stranger, on any species of simple contract, the
defendant was not permitted to wage his law. Even in those early times,
the Courts were strongly disposed to rescue commercial contracts and
dealings from this species of trial, as may be seen by the intended
operation of the statute de mercatoribus, and particularly in the case of
foreign creditors, who, it was presumed, could not so easily obtain the
requisite evidence of their claims as resident merchants; and this may be
seen in Godfrey and Dixon's case.k
From the cases enumerated, it appears, that wherever the plaintiff's
demand is certain, and is so evidenced as to exclude the idea of a mere
secret or verbal contract between the parties, there the defendant could
neither deny the contract, nor maintain its discharge by his oath and that of
his compurgators.
If we examine the cases in which the defendant has been allowed this
mode of trial, we shall find the same principle strongly manifested. The
books furnish us with only six classes of cases in which a defendant is
permitted to wage his law. (1) In debt, on simple contract; by which we
are not to understand, (as I shall presently show,) every species of simple
contract, but such only which, as the authorities express themselves, 'are
dependent on the slippery memory of man, or the uncertainty of verbal
agreements.' (2) In debt on an award, under a parol submission. It has,
indeed, been urged, that wager of law ought not, on principle, to be
permitted in such a case, as the action is grounded on a notorious
transaction, and by the interposition of third persons. But it was held, that
the award is not the ground of action, but the submission, which may be
private.l (3) In an action of account against a receiver, on receipts from the
plaintiff himself, the defendant may wage his law, for here the action
itself shows that the matter is private between the parties; and this differs
from the case already adverted to, where the receipts were by the hands of
third persons. (4) In detinue, where the matter is no way connected with

the realty, the defendant may wage his law. Here the gist of the action is
the detainer. But in detinue for a charter of feoffment, wager of law will
not lie, as it concerns the freehold; every thing regarding which, is
presumed to be matter of notoriety.m (5) In debt for an amerciament, in a
Court not of record, it is said by some, that the defendant may wage his
law. But, an enlightened Baron of the Exchequer says, that if this be law,
it must be on the ground of the insignificancy of the debt, which seldom
exceeds 40 shillings, and which can be safely left to the consciences of
men, and ought not to trouble the country in the trial thereof.n Holt, Ch. J.,
however, is decidedly of opinion, that the defendant cannot wage his law
in this case: for, says he, 'the plaintiff hath now sufficient proof to make
out his cause; it hath ceased to be a matter of secrecy, and hence cannot be
defeated by the oath of the defendant.' (6) and lastly; In real actions, the
defendant may wage his law of non-summons, this being often in secret,
and not vouched by any writing.o
From the cases enumerated, of the allowance or denial of this mode of
trial, it is manifest that it has only been tolerated in a few special cases;
and these, (to use the language of Holt,) 'are all grounded on a feeble
foundation, or are of small consideration in the law.' They abundantly
prove, that wager of law originated in the 'unstable evidence of the
demand,' in the 'feebleness and exility of the plaintiff's cause of action,'
and that it had no connexion whatever with the particular nature of the
remedy by which the demand was sought to be enforced.
My position then is, that wager of law, in its origin, principle, and
practice, never did apply to written, though unsealed evidences of debt;
and, a multo fortiori, not to promissory notes. It is conceded, however,
that a different opinion has been entertained, and that it has been supposed
that the principle which regulates the admission or rejection of wager of
law, is the presence or absence of a seal, or something equivalent thereto;
and that all contracts, not of record, or not under seal, are parol or simple
contracts, in reference to this mode of trial. That this opinion is erroneous,
has already been partly shown; and, that it is altogether unsound, I shall
now endeavour further to illustrate.
As to the origin of this 'tempter to corrupt perjury,' Lord Coke confidently
refers it to the law of God, which permitted the bailee of an ox, or other
cattle, to discharge himself, by his own oath, from all responsibility for
the death or loss of the animal. Others have regarded it as a mistaken
application, by the early ecclesiastics of England, of the decisory oath of
the civilians; and some have supposed that it was introduced by them with
the oath ex officio, so often used in cases of ecclesiastical cognizance. But

whether it be the offspring of Saxon rudeness, or finds its exemplar in the

more refined code of imperial Rome, is not very material: certain it is, that
the simple contracts alluded to in the books, mean nothing more than such
an unsustained or unevidenced contract, as ought, in conscience, to be
outweighed by the oath of the party sought to be charged. In the first
Edward's reign, we find, that if a creditor sued on a verbal demand, he
was required to make rationabilem monstrationem that a debt existed. For
this purpose he produced his secta; the defendant might then vadiare
legem, that is, wage his law against the plaintiff's secta. We find, also, that
no secta was ever required where the plaintiff could produce any writing;
and, as the wager of law was for the purpose of disproving the testimony
of the secta, according to the then prevailing maxim, lex vincit sectam, it
seems to follow, that no wager of law was ever allowed where the
plaintiff's claim was evidenced by any writing. The waging of law,
therefore, may be considered as springing from the secta, and was a proof
to silence the presumption raised by this preliminary evidence, adduced in
support of mere verbal contracts.p The secta, and the defendant's oath,
and compurgators, appear to have been requisite only 'in respect of the
weakness and inconsiderableness of the plaintiff's evidence of debt.' This
view of the subject is strongly shown in the well known case on this
antiquated learning, The City of London v. Wood.q In that case, Holt, Ch.
J., remarks, that wager of law is allowable, not because the debt may be
discharged, or paid in private, but because the ground of action is itself
secret; for, that if the privacy of payment, or the possibility thereof, were
the occasion of wager of law, that might be a reason, in all cases where it
is admitted, that this trial will not be allowed. The theory of this subject
clearly evinces, that wager of law could at no time have been applicable to
the species of simple contract now under consideration. Promissory notes
surely are entitled to as much respect as a stated account by auditors,
against which, we have seen, there could be no wager of law; and they
have all that certainty, notoriety, and evidence in their nature, so often
alluded to, and which constitute the only basis on which the admission or
rejection of this summary proceeding can rest.
If we for a moment inquire into the nature of this species of simple
contract, we cannot fail to perceive, that it has no one feature in common
with those in which the defendant has been permitted to wage his law.
Notes and bills are contracts sui generis; they are instruments of a
peculiar character, neither specialties, nor parol contracts. They cannot be
regarded as mere parol or simple contracts, neither before, nor since the
statute 3 and 4 Anne, c. 9., and, consequently, ought not to be embraced
within the principle which sustains the wager of law, allowing this to be
even broader than has been stated. For, first, even prior to the statute of

Anne, the plaintiff need not have averred nor proved any consideration:
the mere statement of the promise, and the defendant's liability,
constituted a sufficient prima facie evidence of debt. Even between the
original parties they imported a consideration; and the onus probandi of
the absence, or failure of consideration, lies on the defendant.r
The doctrine, then, of Rann v. Hughes,s which qualified the obiter opinion
of Mr. Justice Wilmot, 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 literis 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 prima facie 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 endorsement, the statute raises an irresistible
presumption in favour 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
practised, 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
persona. 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; 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 Year Books furnish no instance of the action of assumpsit,
and Slade's caset is the first judicial sanction of this form of action. This
was shortly after followed by Pinchon's case,u 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, where wager of law would not lie. In the 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 favourite and practiced 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
compellable to find bail in error, though the judgment be by nil dicit, or on
demurrer.v Both in England and this country, debt is brought on notes and
bills, wherever the responsibility is not merely collateral;w and no reason
can be assigned for refusing it in the present case, except the one I have
endeavoured 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.x 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
gratia curiae. Judges are to use a sort of discretion in admitting people to
it.y
As to the recent case of Barry v. Robinson,z 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 endeavoured 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 Mansfield, 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 endeavoured 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
could 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, that 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 time 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 of them. The statutes of the various States are equally silent, with the
exception of New-Jersey1 and South Carolina.2 In the former State, wager
of law is abolished in all cases except of non-summons in real actions;
and, in South Carolina, wager of law is abolished in the action of detinue.
This provision, no doubt, was ex abundanti cautela. Detinue is there a
practiced 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 it 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 of 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 de fidelitate, and his eleven compurgators de
credulitate, all controversy is terminated. There could be no new trial, for
any cause whatever.3 If ever so flagrantly abused by perjury, there can be
no remedy; for it was a well established maxim, that 'indictment for
perjury lies not for false swearing in the trial by wager of law.'4 The mock
solemnity in the manner of waging law, would ill suit the simplicity of
judicial proceedings in this enlightened age and country.5 Trial by jury is
the only mode of trial known to our common law jurisprudence. The
Judiciary Act of 1789, c. 20. s. 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 twenty dollars. 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 was
composed of but two persons, viz. William Cochran & 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 general;' by which is meant, what, upon a fair and
reasonable construction, may be called certain, without recurring to
possible facts, which do not appear.6 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 favoured, and are. therefore, said
to demand a certainty to 'a certain intent in every particular.'7 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 persons
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,' &c. 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.8
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 the profert, he should have craved
oyer, and then demurred.9
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. s. 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. 10
March 14th.
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 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.
4

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.)
7

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.)
9

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.

10

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.

11

Upon the whole, the judgment of the Circuit Court is affirmed, with 6 per cent.
damages, and costs.

Barry v. Robinson, 1 New. Rep. 294. 1 Chitty's Plead. 84. 93. 107.

1 Chitty's Plead. 236. 256 . 3 Caines' Rep. 170.

3 Bac. Abr. 94.

4 Cranch's Rep. 46. 6 Cranch, 332.

Pinchon's case, 9 Co. Rep. 87 b. City of London v. Wood, 12 Mod. 684.

28 Henry VI. 4. 9 Edward IV. 1.

39 Henry VI, pl. 34.

Co. Litt. 295 a.

Slade's case, 4 Co. Rep. 95 b.

2 Ventr. 261. 1 Mod. 121.

Palmer's Rep. 14. Fleta, 136.

Co. Litt. 295. 12 Mod. 681.

Cro. Eliz. 790. 2 Rolls' Abr. 108. Year Book, 14 Hen. VI. pl. 1.

12 Mod. 681.

Br. Ley. Gager. pl. 27. 57. 103.

Bract. 409. Fleta, 136. 138.

12 Mod. 670. 680. 682.

5 Wheat. Rep. 277. 9 Johns. Rep. 217.

7 T. R. 350.

4 Co. Rep. 92. 44 Eliz.

9 Co. 86.

1 H. Bl. 550. 3 East's Rep. 359. 2 Saund. 216. 1 Chitty's Plead. 107.

Bishop v. Young, 2 Bos. & Pull. 78. Rabourg v. Peyton 2 Wheat. Rep. 385.

29 Edw. III. 36 b. 37 a.

12 Mod. 676.

1 New. Rep. 293.

Rew. Laws of N. J. 1795.

Grimke's Laws of S. Car.

2 Salk. 682. 2 Vent. 171. 12 Mod. 676.

1 Vent. 296. Co. Litt. 295.

Bract. 411. Fleta, 137. 2 Lill. Abr. 824.

2 H. Bl. 530. Cowp. 682. 1 Saund. 276. 1 Chitty's Plead. 237.

8 Term Rep. 167. Dougl. 159.

1 H. Bl. 313. 6 Term Rep. 659. 2 Phill. Evid. 4, 5 note a. Chitty. Bills, 627. note
a. note b.

2 Wils. Rep. 413. 1 Chitty's Plead. 416.

10

Chappedelaine v. Dechenaux, 4 Cranch's Rep. 306. Serg. Const. Law, 113. 117.