CHILDRESS V. EMORY, 21 U. S. 642 (1823)

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U.S. Supreme Court

Childress v. Emory, 21 U.S. 8 Wheat. 642 642 (1823)

Childress v. Emory

21 U.S. (9 Wheat.) 642


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 chanrobles.com-red

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 chanrobles.com-red

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. chanrobles.com-red

Page 21 U. S. 668


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