Joseph Story

“ 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 ”

“ 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 ”

“ 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. ”