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.