Toland v. Sprague

by Philip Pendleton Barbour

United States Supreme Court

37 U.S. 300

Toland  v.  Sprague

[Syllabus from pages 300-302 intentionally omitted]

ERROR to the circuit court of the United States for the eastern district of Pennsylvania.

This action was commenced on the fifth day of August, 1834, by the plaintiff in error, by process of foreign attachment, in the circuit court for the eastern district of Pennsylvania. The writ of attachment stated the defendant, Horatio Sprague, to be a citizen of the state of Massachusetts, and the plaintiff to be a citizen of the state of Pennsylvania. The attachment was served on the property of the defendant on the sixth day of August, 1834, in the hands of Mr. John M'Crea, Mr. S. Brown, and Mr. P. Lajus, residents in the city of Philadelphia. At the following term of the circuit court, the counsel for the defendant moved to quash the attachment; which motion was overruled by the court.

The record showed that Horatio Sprague, although stated to be a citizen of the state of Massachusetts, was at the time of the commencement of the suit, and for some years before, had been a resident at Gibraltar; where he was extensively engaged as a merchant. The defendant entered special bail to the attachment; and having appeared and pleaded to the same, the case was tried by a jury on the twenty-first day of November, 1836; and a verdict, under the charge of the circuit court, was rendered for the defendant, on which a judgment was entered by the court.

The plaintiff at the trial took a bill of exceptions to the charge of the court, stating in full all the evidence given to the jury in the case. The plaintiff prosecuted this writ of error.

The plaintiff declared in assumpsit, on three counts against the defendant: First, charging the delivery of certain articles of merchandise, upon a promise to account and pay over the proceeds of the sale of the same; alleging a sale thereof by the defendant, and a breach of promise, in not paying or accounting for the same. Second, a count in indebitatus assumpsit: and third, on an account stated: The third count was afterwards, on the application of the plaintiff to the court, struck out of the declaration. The defendant pleaded the general issue, and also the statute of limitations. The plaintiff replied that, at the time of the transactions with the defendant, in which this suit was brought, the defendant was a merchant and the factor of the plaintiff, and 'as such had the care and administration of the money, goods, wares, and merchandise, in the said declaration mentioned, of the said Henry; and he merchandised and made profit of for the said Henry, and to render a reasonable account to the said Henry, when he, the said Horatio, should be thereunto afterwards required; and that the said money, in the said several promises and undertakings in the said declaration mentioned, became due and payable on trade had between the said Horatio and the said Henry, as merchants and merchant and factor, and wholly concerned the trade of merchandise between him, the said Henry, as a merchant, and the said Horatio as a merchant and factor of him, the said Henry, to wit, at the district aforesaid: and the said Henry further says, that no account or accounts whatever of the said money, goods and merchandise, in the said declaration mentioned, or any part thereof, was, or were ever stated, settled, or adjusted between him the said Henry.'

To this replication the defendant rejoined, stating that he was not the factor of the plaintiff; nor did the said money, in the said several supposed promises and undertakings, in the said declaration mentioned, become due and payable in trade had between the said Horatio Sprague and the plaintiff, as merchant and merchant and factor, in manner and form as the plaintiff had alleged.

The bill of exceptions set out at large the evidence given on the trial of the cause. It consisted of a letter, dated Philadelphia, September, 25, 1824, from the plaintiff to Charles Pettit, by which certain goods and merchandise, the property of the plaintiff, shipped on board of the William Penn, bound to Gibraltar, was consigned to him for sale, and stating the manner in which returns for the same were to be made; letters from Charles Pettit to the plaintiff, relative to the shipment, and a statement of remittances made to him by Charles Pettit, with an account sales of some of the merchandise; also two bills of exchange, one for five hundred and thirty dollars seventeen cents, the amount of the proceeds of sales of eleven hogsheads of tobacco, and a bill of exchange for one thousand dollars, both drawn by Horatio Sprague, the defendant, on persons in the United States, to the order of Charles Pettit, and by him endorsed to the plaintiff.

By a letter from Charles Pettit to the plaintiff, dated at Gibraltar, December, 1824, after communicating the sales of the eleven hogsheads of tobacco, and the enclosure of the bills, and stating that the bill for one thousand dollars was to be considered as an advance on his shipment, he informed the plaintiff:

'I shall sail from this to-morrow, in the ship William Penn, for Savannah, and have left the following instructions with my friend, Mr. Sprague, regarding your property left by me in his hands: 'With respect to the gunpowder tea, cassia, and crape dresses, shipped by Henry Toland, you will please to dispose of them as you may think most for the interest of the shipper, and remit the amount to him, in bills on the United States; forwarding me account of sales of the same."

By a letter addressed by Charles Pettit to the defendant, Mr. Sprague; written at Gibraltar, on the 18th December, 1825; he says, among other things:

'By your account current rendered this day, a balance stands against me of five thousand five hundred and seventy-four dollars thirty-one cents; to meet which you have in your possession 550 barrels superfine flour, on my account entire, my half interest of 372 barrels flour; an invoice of crapes, &c. amounting to two thousand and twenty dollars; 100 ten-catty boxes gunpowder tea; 500 bundles cassia; and 2 cases super satin Mandarin crape dresses, containing 101 dresses.

'With respect to the gunpowder tea, cassia, and crape dresses, shipped by H. Toland, you will be pleased to dispose of them as you may think most for the interest of the shipper, and remit the amount to him in a bill on the United States; forwarding me account sales of the same.'

On the 6th of January, 1825, the plaintiff wrote to the defendant, from Philadelphia, 'I am expecting soon to hear the result of my shipment by the William Penn, and hoping it will be favourable.'

On the 22d February, 1825, the plaintiff addressed the following letter to the defendant:

'Philadelphia, February 22, 1825.

'MR. HORATIO SPRAGUE, Gibraltar.

'Dear Sir,-By the ship William Penn, I consigned to Mr. Charles Pettit 100 boxes gunpowder tea, a quantity of cassia, 11 hogsheads Kentucky tobacco, and 2 cases Mandarin robes. I directed Mr. Pettit to make the returns of this shipment immediately on his arrival at Gibraltar, as follows: If quicksilver could be had at forty cents, then the whole amount in said article; if not, to ship the whole amount in dollars, by the first vessel for this port, or New York; or if good bills of the United States could be had on more favourable terms for a remittance, then to make the return in bills. Mr. Pettit promised a strict compliance with all these things; but, since the sailing of the William Penn from this port, I have never received a line from him. I have heard of his arrival in Savannah, and of his proceeding to Charleston; but I have not yet been favoured with a single letter from him.

'As my property may be left in your hands by him, unsold, I beg of you to follow the directions given to him, as herein detailed, and make the remittance direct to me. I have particularly to beg your attention to this matter, and to remit as early as possible.'

The bill of exceptions also contained letters from the defendant to the plaintiff, written at Gibraltar, commencing on the 18th January, 1825, to February 22, 1827; and other correspondence of the plaintiff with the defendant, up to an anterior date.

The letters of the plaintiff assert the liability of the defendant to him for the whole amount of the shipment made to Charles Pettit; deducting the two bills of exchange; one for five hundred and thirty dollars seventeen cents, and the other for one thousand dollars; the balance of the sales being one thousand five hundred and seventy-nine dollars.

The letter from the defendant to the plaintiff, of the 18th January, 1825, informs the plaintiff, 'that Charles Pettit had left Gibraltar on the 19th of December, and had placed in his hands, for sale for his account, an invoice of gunpowder tea, cassia, and crape dresses; with directions to dispose of them as he may judge most for his interest; which shall have my best attention.'

Letters written afterwards inform the plaintiff of the state of the markets at Gibraltar; and on the 7th of June, 1825, the defendant wrote to the plaintiff, 'I have closed the sales of the crapes and cassia, left by Mr. Pettit some time since; and settled his account.'

On being informed by the plaintiff, that he was held liable to him for the proceeds of the shipment, per the William Penn, the defendant addressed the following letter to the plaintiff:

'Gibraltar, October 24, 1825.

Dear Sir,-I have just received your letter of 12th September, which I hasten to reply to. It would appear by your letter, that Mr. Pettit's agency here was not so full as his own instructions to me gave me to expect. The property which he has brought and consigned to me at various times, has ever been delivered over to me with invoices, in his own name; and I have ever been punctilious in following his instructions, sometimes in remitting to one, sometimes to another, and on which property I was always ready, and at various times did advance sums of money; but how he, Mr. Pettit, appropriated this money, it was not my province to inquire; he might have remitted it to you, or any one else. Here follows the other part of his instructions of the date of the 18th December, which you appear to have overlooked; but which must establish in your mind the nature of Mr. Pettit's transactions here. Had you have consigned your property to me, instead of Mr. Pettit, I should then have been accountable to you; but it cannot be expected that I am to guaranty the conduct of your agent, who always is accountable to you for his conduct. Here follows the extract of his order of 18th December, 1824: 'By your account current, rendered this day, a balance stands against me of five thousand five hundred and seventy-four dollars and thirty-one cents; to meet which, you have in your possession five hundred and fifty barrels of superfine flour, on my account entire, my half interest of three hundred and seventy-two barrels of flour, and invoice of crapes, &c., amounting to two thousand and twenty dollars, one hundred ten-catty boxes gunpowder tea, five hundred bundles cassia, and two cases superior satin Mandarin crape dresses, containing one hundred and one dresses,' &c. &c.

This paragraph, I repeat, cannot but convince you that all my advances to Mr. Pettit were on the various property which he placed in my hands for sale. It is very true I corresponded with your good self on the subject of the articles which you entrusted to the management of Mr. Pettit; and it is no less true, I did the same with him, and from time to time promised him account; which I never did to you; and, until his last visit to this, did not close the sales of the articles, when, at his particular request, closed every account before he left this. This explanation, I trust, will prove satisfactory, so much so, that I may continue to enjoy your confidence.'

The letter of the plaintiff of Philadelphia, January 4th, 1826, repeats and insists on the liability of the defendant to him; to which the defendant gave the following reply:

'Gibraltar, February 10, 1826.

'Dear Sir,-I am this moment in receipt of your letter of 4th ultimo, per Charles, and from your reference to my letter of 18th January, 1825, have looked into the same. That I was aware the property handed over to me by Mr. Pettit did not belong to himself there is no question; but on what terms you and others consigned it to him, is not for me to inquire. On his arrival, he submitted to me invoices of several shipments, required advances, and gave orders for sales; and on his leaving this, as you may suppose, directed me to correspond with the different shippers by him; which, in my opinion, was very proper, and could not in the faintest degree lessen my claim to the property, on which I had made liberal, yes, more than liberal advances; so much so, that Mr. Pettit is over two thousand dollars my debtor: yet so particularly desirous am I to satisfy your mind, as I am in possession of all the original papers, letters, &c. connected with the business, I have no hesitation in submitting the question to any two respectable merchants here, one to be appointed by you, the other by myself, and to their decision I shall most readily subscribe; or if you are willing to leave the business to me, I will submit every paper to two disinterested merchants, and they shall address you on the subject; and the affair shall be settled to our satisfaction.

'Herewith duplicate of my respects of 28th ultimo, since which I have delivered a part of your hyson skin tea, at three and a half rials per pound. This parcel has been sold off, and if no complaints of its quality be made hereafter, I shall be glad.'

The bill of exceptions also contained a number of accounts sales of merchandise made by the defendant, by order of Charles Pettit; and accounts current with him, commencing in 1822. The only account which was the subject of notice in the charge of the circuit court, was one dated at Gibraltar, June 30, 1825, of the property of the plaintiff left in the hands of the defendant on the 18th December, 1824. This was an account sales, showing a balance of two thousand five hundred and seventy-eight dollars and eleven cents. The account sales was stated to be:

'Sales of merchandise received 3d November, 1824, ex ship William Penn, William West master, from Philadelphia, by order of Mr. Charles Pettit, for account and risk of the concerned, per Horatio Sprague, Gibraltar.

Gibraltar, June 30, 1825.'

By the account current between the defendant and Charles Pettit, dated 'July 6, 1825,' in which credit was given for the nett proceeds of the sales of June 30, 1825, a balance appeared to be due from Charles Pettit to the defendant, of one thousand four hundred and six dollars and _____ cents.

The bill of exceptions contained no other account in which the sales of the shipment made by the plaintiff by the William Penn were stated; nor did it contain any account rendered by the defendant to the plaintiff, relating thereto.

That there being a plea of the statute of limitation, the plaintiff must by his replication bring himself within the exception concerning merchants' accounts in the said statute, or must fail. To be within the said exception, such accounts must concern trade and merchandise, and must also contain mutual demands, and must be an open and running account, and must be such for which an action of account would lie; and must be between merchant and merchant, their factors or servants, not merely between those who hold their goods under an obligation to account.

Here the plaintiff claimed one thousand five hundred and seventy-nine dollars, the balance of sales of property, as per account sales June 30, 1825, amounting to two thousand five hundred and seventy-nine dollars. Credit by one thousand dollars Bill on Pearson. The plaintiff and defendant agree in the amount of sales, and no item is objected to.

Thus far the account is a stated one, not being objected to for ten years; if any balance is due, it is ascertained by mutual consent.

There is no mutual account between them, nor an open one, and there can be no new account open between them. The contest does not depend on an account, but on who has a right to a liquidated balance, admitted by defendant to be in his hands as the proceeds of plaintiff's property: plaintiff claims it as his own; the defendant claims to apply it to a debt due by Pettit.

On the pleadings, the question is not who has a right to the money; but whether plaintiff is not barred by the statute.

The plaintiff had not made out a case which exempts him from the statute. If Sprague had rendered the account sales to the plaintiff, and admitted the balance to be payable to him, that would not bring plaintiff within the exception.

The plaintiff had a complete right of action, on demand of a settled balance; and he made this demand in 1825, and the statute would then begin to run. The plaintiff's only claim is for a precise balance; and this would not have been the mutual open account current between merchant and merchant, concerning the trade of merchandise between plaintiff and defendant. It did not become so by defendant claiming to retain the balance for Pettit's debt; nor did it change the nature of the transaction, or make the cause more a matter of account, than if he admitted the plaintiff's right to it.

The only question is, who is entitled to the balance of a settled account. Admitting, then, that defendant was the factor of the plaintiff, he has failed in making out his replication as matter of law; it was not a case of trust, not embraced by statute.

Taking the account, then, as one where defendant was factor for plaintiff, bound to account to him and pay him the balance, and having no authority to apply the proceeds to Pettit's debt, and plaintiff not bound by receipt of one thousand dollars: the nature of the transaction does not bring it within the exception, being for a liquidated balance admitted; and by the correspondence between the parties, the controversy brought to a contest for the balance, this can be an exception only on the ground of merchants being privileged characters.

The correspondence between the parties, so long ago as early in the year 1826, showns that the question between them was not about the account, or any item in it, but on the right of Mr. Sprague to retain the admitted balance to repay the advances he made to Pettit: that was the only question in dispute between them; and it is the only one now, and has so continued for more than ten years.

This view makes it unnecessary to consider the other interesting questions as to the powers of agents, factors, supercargoes, pledging, and of sub-agents; the jury are to take the direction of the court in the question, which is a matter of law: and so left the same to the jury.

The case was argued by Mr. Gilpin and Mr. Hare, for the plaintiff in error; and by Mr. Gerhard, with whom was Coxe, for the defendant.

For the plaintiff, the following errors were assigned:

1. That the court charged the jury upon an issue which not only did not appear upon, but was excluded by the pleadings; upon which the cause was not tried; and which was not raised by any of the counsel in argument.

2. That whether any demand for an account had ever been made, by plaintiff upon defendant; whether any account had ever been rendered by defendant to plaintiff; and whether any account was an account stated between plaintiff and defendant, were all questions for the jury; and that the court erred in withdrawing the same from the jury, and giving them a positive direction thereon.

3. That supposing the questions set forth in the foregoing error assigned to be for the court, the court erred in charging the jury that, in point of law, there was any demand made on defendant by plaintiff for an account: that the defendant had ever rendered an account to the plaintiff; and that there was an account stated between the plaintiff and the defendant, so as to deprive the plaintiff of the benefit of the exception in the statute of limitations concerning merchants' accounts.

4. Because the charge of the court was against the law and the evidence.

The defendant in error objects to this Court's jurisdiction, as well as to that of the court below, on the ground that he is within the 11th section of the judiciary act of 1789, which enacts, that 'no civil suit shall be brought in the circuit courts against an inhabitant of the United States, by any original process, in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.'

This question was raised in the court below, by means of a rule to show cause why the writ should not be quashed, and decided against the defendant after argument, and on affidavits, showing that the defendant was a citizen of Massachusetts, and had been for more than twenty years an inhabitant of Gibraltar.

We contend: 1. That the matter of such a defence, as it ousts the court below, or this Court of its jurisdiction, by reason of a personal privilege, must be duly pleaded; and if waived in the order of pleading, is lost.

2. That the defendant, not being an inhabitant of the United States, but residing in another country, is, therefore, not within the 11th section, and is liable to foreign attachment.

As to the first point, the 11th section confers a personal privilege which, like all other personal exemptions, must be pleaded; because his right to it is examinable, and nothing appears on the record to found a doubt of the jurisdiction. And as it is a personal privilege, it may be waived, in which case the court has jurisdiction. As it is merely dilatory, it is not to be favoured. Harrison v. Rowan, 1 Peters' C. C. R. 489; Kitchen v. Williamson, 4 Wash. C. C. R. 85; Logan v. Patrick, 5 Cranch, 288. And having pleaded in bar, he cannot now raise the question of his privilege in this Court.

2d. It appeared, upon affidavit in the court below, that the defendant is not an inhabitant of the United States, has not been such for twenty years, but is domiciled in Gibraltar. He is not, therefore, within the words or meaning of the 11th section; which covers none but inhabitants of the United States

The judiciary act gives to the circuit court cognizance of all suits, of a civil nature, between citizens of different states; which is the case of the parties to this action; or citizen and alien. And the act to regulate processes, gives to the same courts the same processes as are used in the state courts of the particular district.

The process in this case was a foreign attachment, which is used in the state courts of Pennsylvania. The 11th section restrains the service of process upon an inhabitant of the United States, except in his own district, or in that where he is at the time of writ served.

Where a general power is given, and a particular restriction afterwards imposed, the restriction must be construed strictly, or it may override the power.

Here the character of the process and that of the suit are within both acts. The question, then, is on the restriction: but the defendant is not an inhabitant of the United States, and therefore not within it.

The spirit of the restriction was to save inhabitants of the United States, whether citizens or aliens, from a greater hardship than either would be subjected to in the state courts; that, namely, of being called to answer in a distant tribunal, by virtue of the general power of the federal courts, as extending all over the Union. But this consideration cannot apply to the case of foreign attachment against a non-resident, since that process is used in the state courts; and would have lain against this defendant, and cannot lie against an inhabitant of the state or district. If the attachment had issued from the state courts, the defendant might have transferred it, to the circuit court by the terms of 12th section of the judiciary act. 3 Harr. & M'Hen. 556, 557.

It has been the practice in Pennsylvania to issue foreign attachments from the circuit courts against aliens non-resident.

The word inhabitant in the act does not mean citizen. If so, aliens resident would be exposed to a hardship from which citizens are exempted. The argument for the defendant must mean that, because the defendant is a citizen of Massachusetts, he is therefore an inhabitant of the United States; that is, that inhabitant and citizen are the same thing. In some cases, it is true, the residence of a citizen of the United States within the United States, determines of what state he is a citizen, as to the question of jurisdiction of the United States' courts: as in Cooper v. Galbraith, 3 Wash. 553; Buller v. Farnworth, 4 Wash. 101. But in this case, the citizen of the United States is an inhabitant of another country. He is not thereby divested of his citizenship; which signifies his political relations, and does not depend on his will. 2 Cranch, 318; United States v. Gillies, 1 Peters' C. C. R. 161; 4 Tuck. Blackst. 101; 4 Am. Law Journal, 462; 2 Cranch, 120; 8 T. R. 45; Hale's Com. Law, 184; Vattel, 162, 318. But he is not an inhabitant of the United States; he is such of another country: and he is to be dealt with as such in a question of jurisdiction in this Court. 2 Peters, 450; 2 Rob. Adm. Rep. 267; 3 Rob. Adm. Rep. 23; 2 Bos. & Pul. 229; 1 Binn. 351. And if foreign attachment will lie against an alien non-resident of this country, there is no reason why it should not lie against a citizen non-resident.

If pleaded, that he was an inhabitant of the United States, and issue had been joined, the verdict must have been that he was not an inhabitant: and if so found, there is nothing to take away the jurisdiction of the circuit court.

The first error is, that the court charged upon an issue not only not appearing upon, but concluded by the pleadings.

The charge of the court assumes that there had been an account stated between the plaintiff and defendant. None was alleged at the trial. The action was for the proceeds of a shipment placed in the hands of the defendant, by the plaintiff's agent. The merits were not noticed in the charge of the court, and are therefore not material. The statute of limitations was not relied on by the counsel for the defendant, at the trial. The cause was tried upon the issues, and we contend the charge was upon what was not in issue.

The declaration contains two counts; for money had and received, and for not rendering an account. There was originally a third count, viz., on an account stated; which was struck out before replication, upon a rule granted by the court. The defendant pleaded non assumpsit, and the statute of limitations; which, in Pennsylvania, by a defect of legislation, does not save the right of the plaintiff against an absent defendant.

The plaintiff took issue on the first plea; and to the second, replied, the exception in the statute concerning merchants' accounts; and alleged in it that no account had ever been rendered or stated between the parties. Godfrey v. Saunders, 1 Wils. 79; 1 Burrows, 317, 557; 558; 9 Serg. and Rawle, 293. It being a construction of this exception that it does not include accounts stated, it was proper to allege they were not stated.

The defendant rejoined that plaintiff and defendant were not merchants, &c. It admitted, therefore, there was no account stated, as it did not deny it: for, whatever is traversable, and not traversed, is admitted; 2 Starkie's Rep. 62; Stephen on Pleading, 255, 258; Appendix, 44, 54. The verdict, if stated at large on the record, would have been that the parties were merchants, which, as a fact, was not doubted. If stated at large, 'under the direction of the court,' as expressed in the record to have been found it must have been that there was an account stated between the parties. But it is a rule that a verdict cannot contradict the issue nor admissions in the pleadings. 5 Bac. Abr. 322; 2 Mod. 5; 2 Ld. Raym. 864. The learned judge, therefore, clearly erred when he charged the jury that the question in the pleadings, was, whether an account had or had not been stated; since such a verdict would have been a nullity.

Upon the issue, the plaintiff proved the amount owing to him by the written admission of the defendant, which admission did not include the right of the plaintiff to that amount. If the rejoinder had been that there was an account stated, his course would have been different, and it would have lain on the defendant to prove such an account; which attempt, if it failed, would have destroyed his defence on the merits.

The second error assigned is, that the court took away from the jury the question, whether there was or was not an account stated; and charged positively that a particular paper was not such.

The replication denied an account stated; the rejoinder admitted there was none; and none was alleged or produced in evidence. The plaintiff was entitled to be heard against the construction of any paper, as such account. The court charged that the account sales of June 30th, 1825, was an account stated between the parties; and did not state that that account was not sent by defendant to plaintiff, but was given by defendant to Pettit, who was not then the plaintiff's agent; that the defendant always denied his liability to account to the plaintiff; and affected to treat Pettit as the owner of the goods; and that the account was given by Pettit to the plaintiff, as showing what disposition he had made of the goods. We contend that this was not an account stated, in point of fact; and that the jury were the judges of the character of the paper: for it was not a question of the construction of a paper, nor of the meaning of a phrase: but of a fact, whether this paper was sent, and received as an account stated; and it was a matter of argument to the jury, whether an account sales can be, in any case, an account stated, inasmuch as it shows no balance between the parties: and whether the refusal of the defendant to account, and his allegation that he had never intended to account with plaintiff, did not destroy the character which the court gave to this paper as an account stated.

The third error assigned is, that the court assumed and charged that there was an account stated between the parties.

Supposing that the issue had been on the allegation that no account was stated, and that the decision of any paper produced as such, belonged to the court-We contend that nothing was produced in evidence, which deserved that character in law or fact; so as to bar the plaintiff of the exception in the statute of limitations concerning merchants' accounts.

What are alleged as constituting the account stated, are a demand by the plaintiff on defendant, for a specific sum, which he had incidentally learned from a third person, was the proceeds of his goods; and the account sales which contained that amount.

We agree, that if accounts between merchants are stated, they are within the statute. 1 Ventr. 89; Ibid. 865; 1 Mod. 269; and cases referred to in Wilkinson on Limit. 30, et seq.; Blanchard on Limit. 88, et seq. And further, that in accounts between others than merchants, or since Spring v. Craig's Exr's., 6 Peters, 151; 6 Term Rep. 193; if between merchants, and not concerning the traffic of merchants, to bar the statute, an item must be within six years.

We contend that open accounts between merchants, are within the exception; and further, that accounts closed by cessation of dealings, are open accounts; but the pleadings must state accounts to be open. 1 Saunders' Rep. 127; 6 Term Rep. 193; 5 Cranch, 15; 2 Dall. 254; 2 Yeates, 105; 5 Johns. C. R. 526; 19 Ves. 180; Blanchard on Limit. 89.

The accounts must consist of more than one item, and of more than one transaction; and must, in general, contain mutual credits; but not as between merchant and factor: for there the course of trade may be, that the factor has only to receive and dispose of the goods, and remit their proceeds. Between a merchant and his factor, there can be no reciprocal demands in buying and selling, such as exist between merchant and merchant. A stated account is a clear statement of accounts, justified by signatures, as exhibiting approbation. 2 Young on Invoices, 37; none such is pretended. An account current may become an account stated, by the silence of the party receiving it. 2 Vern. 76; 2 Ves. sen., 239. But as soon as the plaintiff here learned that the defendant had sold his goods, he demanded the proceeds. The defendant refused them, claiming to be entitled to them; he refused to acknowledge the plaintiff as owner, or to account with him: he did not send him account sales: he made up, three years after this transaction, an account which contained no item of it: and he admits in the pleadings, and on the trial, that he never has stated an account with him. If an account had never been stated, it is impossible to say that the plaintiff did not object to it. He claimed an amount which he learned was the proceeds of his goods; the defendant retained it, and the plaintiff objected to his retaining it. He could not do more. The court therefore erred, in saying that the account had been unobjected to for ten years; and erred equally in saying that it was for the plaintiff to make out his replication that no account had been stated: an allegation, which, if admitted, (as it was,) was beyond dispute; and if denied, put the burthen on the defendant, the plaintiff asserting a negative, the defendant an affirmative. No account stated was or is pretended on behalf of the defendant. None was alleged or produced. Nor, under the pleadings, was any admissible in evidence. The fact that the plaintiff had in his possession the account sales of his goods, did not conclude him from asserting his right to the proceeds; even if it concluded him from disputing the amount. It was, in any sense, no more than accidental knowledge; and not being communicated to him by the defendant, cannot be said to constitute an account stated, between the plaintiff and defendant.

It becomes the duty of the counsel for the defendant in error, not only to maintain that the errors assigned by the plaintiff cannot be sustained, but further to show that if the plaintiff could prove himself entitled to a reversal of the judgment of the circuit court, that, from a want of jurisdiction, this Court ought not to award a venire de novo. Bingham v. Cabot, 3 Dall. 19; Ketland v. The Cassius, 2 Dall. 368. The circuit court had no jurisdiction of this cause, because:

1. The circuit courts of the United States have no jurisdiction out of their respective districts; and hence no foreign attachment will lie in a circuit court of the United States.

2. The judiciary act of 1789, in express terms, forbids the exercise of jurisdiction assumed in this case by the circuit court.

1st. The circuit courts of the United States have no jurisdiction of actions of foreign attachment.

An action of foreign attachment is in direct contravention of the principles of the common law; and in every state in which the action will lie, it depends for its shape and character and proceedings upon the statutes of that state. Hereafter it will be necessary to notice, more particularly, the Pennsylvania action of foreign attachment. It is sufficient at present to say, that in Pennsylvania it is a mode of commencing actions against a debtor, who is not a resident of the state; nor at the time the attachment issued within the bounds of the state. Serg. on Attach. 55, 61. Now, certainly it would seem, until congress shall give the federal courts power to exercise jurisdiction over persons out of the districts to which their jurisdictions are respectively confined by their very constitutions, that no state law like this can be recognised in a federal court; and such is the deliberate opinion of one of the judges of this Court. Piquet v. Swan, 5 Mason, 39, 41, 48, 50. 2 Dall. 396. If this position be correct, then the case must be dismissed; for the record shows the nature of the action and of the service of the writ: and the laws of Pennsylvania which are of judicial cognizance, prove that the defendant could not have been within the state at the time of the service of the process, even if the return of the marshal had been less explicit.

2dly. The judiciary act of 1789, in express terms, forbids the exercise of jurisdiction assumed in this case by the circuit court. Section eleventh, points out the jurisdiction of the circuit courts of the United States, and then proceeds: 'But no person shall be arrested in one district for trial in another, in any civil action, before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district, than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ.'

As it has been decided by this Court, that this provision merely confers a personal privilege on a defendant, which he may waive; it will be my effort to show; first, that the defendant has not waived his privilege, if he have any; and, secondly, that the defendant is entitled to the privilege secured by this provision; that this suit violates that privilege; and that the record shows both the privilege and the violation.

1. The defendant has not waived his privilege, if he have any.

To maintain this, it will be necessary to examine into the nature of the Pennsylvania action of foreign attachment; and this will be done as briefly as possible. As has been already stated, it is a mode of commencing actions against a debtor who is not a resident of the state, nor, at the time the attachment issud, within the bounds of the state. Serg. on Attach. 55, 61.

The defendant in the attachment cannot put in any defence, unless he appears and gives bail to the action, and submits his person by so doing to the jurisdiction of the court. Serg. on Attach. 131. Otherwise the court will give judgment against him by default, at the third term after the attachment has been issued; and the plaintiff may proceed by scire facias against the garnishee, to apply the goods attached to the payment of his the plaintiff's claim. Serg. on Attach. 21.

But if there be any irregularity in the attachment, as if the defendant be not the subject of an attachment, for instance, if he be within the bounds of the state, the proper mode of taking advantage of such irregularity, is by making a summary application to the court to quash the attachment. By entering the bail to the action, the only terms upon which he is allowed to plead, he waives the irregularity. Serg. on Attach. 139.

As soon as the defendant could, he made such an application to the circuit court. The affidavit shows, accurately, the nature of the application. The point was argued; and after considerable hesitation, the court decided that they would sustain the writ, though the defendant was described in it, &c. as a citizen of Massachusetts. What then could the defendant do? An appearance in the court below, after that decision, was all that remained to him; but as the appearance was an enforced one, there is no case which decides that he cannot now claim the benefit of the privilege, if he was entitled to it originally; and surely there is no principle which would produce that effect. Harrison v. Rowan, 1 Pet. C. C. R. 489, is entirely up to this point: and shows that nothing but a voluntary appearance waives the privilege of a defendant, not to be sued out of his own district. There the court go further and say, that you may appear in order to plead your privilege; but they are far from saying that you must to take advantage of this right: and a careful consideration of the nature of a foreign attachment will show, that whatever might be the case as to a suit in equity, a defendant in a foreign attachment is not, at all events, bound to plead the privilege in question; and it would seem to be a necessary consequence, that after the failure of a summary application in the court below to quash the writ for this reason, that the application may be renewed in the Supreme Court; since the ground of the application appears upon the record.

2dly. But is the defendant entitled to the privilege secured by the section of the act in question; does this suit violate that privilege; and does the record show both the privilege and the violation? If the defendant be an inhabitant of the United States, he clearly has the privilege.

1. Either the word 'inhabitant' means any one who is liable to the process of the United States' courts. Picquet v. Swan, 5 Mason, 55, R.: or,

2. It means an inhabitant of one of the United States, i. e. a citizen of one of the United States.

Now the word in question must be defined in one of these modes, for otherwise it would embrace cases over which the United States' courts have clearly no jurisdiction. Hepburn v. Ellzey, 2 Cr. 445; Corporation of New Orleans v. Winter, 1 Wheat. 91; Picquet v. Swan, 5 Mason, 50, 54, 55; Rabaud v. D'Wolf, 1 Paine, 580.

The first definition is the more natural; for it seems obvious that every case was intended to be provided for; and this construction is supported by high authority.

But if the first be incorrect, then the second definition must be adopted; otherwise, the phrase 'inhabitant of the United States,' would embrace the case of a citizen of the United States, not a citizen of one of the United States: which, as we have seen, are not within the jurisdiction of the federal courts. The literal meaning of the words in question undoubtedly favour this construction of them.

Either definition will, however, be fatal to the plaintiff's case; the first will be clearly so; and I proceed to show that the second will be no less availing to the defendant. It has been repeatedly decided, that where the jurisdiction of the courts of the United States depends upon the character of the parties to the suit, that character must appear upon the record: and that averment is one which the plaintiff must prove. Catlett v. Pacific Ins. Co. 1 Paine, 594; Wood v. Mann, 1 Sumner, 581. The character of the parties is here the only foundation of jurisdiction; and the plaintiff averred that the defendant was a citizen of Massachusetts. This appears in the praecipe for the writ; in the writ; and in all the subsequent proceedings; and the only foundation of the jurisdiction of the circuit court in this case is, that the defendant was, at the time of the commencement of this action, a citizen of Massachusetts. What is the meaning of the word citizen in our jurisprudence? Citizenship, when spoken of in the constitution, means nothing more than residence. Cooper's Lessee v. Galbraith, 3 Wash. C. C. R. 546; Knox v. Greenleaf, 4 Dall. 360. 'A citizen who is domiciled in the enemy's country, as to his capacity to sue is deemed an alien enemy.' Society, &c. v. Wheeler, 2 Gallis. 130.

The word 'inhabitant,' in the act, is obviously synonymous with 'citizen,' 5 Mason 39. See, also, Prentiss v. Barton, 1 Brockenb. 389. 'Inhabitant,' is defined by philologists almost by the same words as those employed by the federal court in their definitions of 'citizenship,' of a state. Crabb's Syn. verb, 'to inhabit;' Johnson's Dict.; Webster's Dict., words 'inhabit,' and 'inhabitant.'

The plaintiff, then, cannot show that the defendant was not an inhabitant of Massachusetts, without contradicting the record; and this he certainly cannot be permitted to do.

These principles only conduct us to the same result as the authorities, for it has been decided by two of the circuit courts of the United States, 'that an action of foreign attachment will not lie in a circuit court against a citizen of the United States. Hollingsworth v. Adams, 2 Dall. 396; Picquet v. Swan, 5 Mason, 39.

Admitting, however, that the plaintiff is not estopped from showing the defendant's residence to be elsewhere than in Massachusetts, what evidence did he bring to the contrary? Now will any one contend that a citizen of the United States loses his domicil by an absence abroad in the service of his country? If not, then the defendant's domicil, even according to the plaintiff's affidavit, is still in Massachusetts; and if reference is made to the case of Lazarus v. Barnett, 1 Dall. 153, it will be found, it is believed, that under these circumstances, had the defendant been domiciled in Pennsylvania before he left the United States, the action could not have been maintained against him in a court of the state of Pennsylvania. For residence abroad is only prima facie evidence of domicil. Johnson v. Sundry Articles of Merchandise, 6 Hall's Am. Law. Journ. 85.

But if the plaintiff can be supposed to have attained his object, and to have shown by the evidence which he adduced for the purpose, that the domicil of the defendant was in Gibraltar, at the time of the institution of this suit; he effectually deprives the courts of the United States of all jurisdiction over the case: since he would then be a citizen of the United States but not a citizen of one of the United States.

To conclude the argument on this point, the record shows that the defendant was, at the time of the commencement of this action, a citizen of Massachusetts; the laws which govern the action of foreign attachment, and make it necessary that the defendant should be absent from the state, are judicially cognizable; and besides, the return of the writ shows that the defendant was not served with the process in the state of Pennsylvania. The defendant was forced, by the attachment of his funds, and the decision of the court on the summary application, to appear to the action by entering special bail. The error is therefore apparent to this Court, and the defendant has not waived his privilege. Should the Court have any doubt about the nature and grounds of the defendant's application to quash the attachment; he should be permitted to show to this Court, that his appearance was an involuntary one. This was the course pursued in Harrison v. Rowan, 1 Peters' C. C. Rep. 489: but had the record been fully certified, there could have been no difficulty upon this subject. If, on the other hand, the defendant was not an inhabitant of Massachusetts, then he was a cltizen of the United States, but not a citizen of one of the United States, and the circuit court never had or can have jurisdiction of the cause.

There were two issues tried by the same jury, viz. one an issue on the plea of non assumpsit; and the other on the plea of the statute of limitations. Both were found for the defendant, 'under the direction of the court.'

It is complained that there was error in the charge of the judge upon the issue of the statute of limitations. If it should be granted, for the sake of argument, that there was, yet how does this affect the plaintiff? Even if a verdict had been found for him, judgment must have been given for the defendant, on the finding of the jury on the other issue. There is no error suggested in the judge's directions to the jury, under the general issue; for the statute of limitations could not have been given in evidence under the general issue, and any charge of the court upon the effect of the statute, was, of course, inapplicable to that issue. The error, therefore, if it were material, has become immaterial by the finding of the jury on the other issue. No court reverses for immaterial errors. If this Court should reverse the judgment in this case, what will they do with the verdict on the general issue? Will they grant a venire de novo, as to that also, when no error as to it is suggested? It is true, the jury have added a clause to the verdict; from which it appears that they found for the defendant, 'under the direction of the court.' But this is no part of the verdict; it is mere surplusage; and it has no legal effect. Nor does it appear that they allude to the supposed erroneous part of the judge's charge.

The defendant, however, denies that there is any error in the judge's charge. It has been urged, but it cannot be seriously contended, that the judge's charge was in itself erroneous. The only point which can be really pressed is, that the charge was erroneous in reference to the issue as to the statute of limitations actually under trial; and it is said that the only point put in issue by the rejoinder was, whether the plaintiff and defendant stood in the relation of merchant and factor; and that the rejoinder admitted, that no account had been settled by passing that allegation in the replication and taking issue upon the existence of the relation of merchant and factor.

Is this so? The plaintiff, in his replication, not only states that the action was founded upon accounts between merchant and factor, but also, that no account had been stated or settled between the parties; and the whole of this matter was necessary to constitute a good reply to the defendant's plea. 5 Cranch, 15; 2 Cond. Rep. 175; Spring v. Gray, 6 Peters, 151; Stiles v. Donaldson, 2 Dall. 264. If, then, that was a single proposition of defence, when we denied that 'those sums of money became payable in trade had between merchant and merchant and factor, &c., in manner and form, &c.' as the replication alleged, we denied the whole proposition of defence; and the question whether an account had been settled, immediately arose, and was passed upon by the jury. If this was not the case, the issue upon the statute of limitations was an immaterial one. If the defendant was the factor of the plaintiff, then the account rendered to Pettit is an account stated. Both admit the foot of that account to be the amount in controversy.

The facts involved are few, and not disputed. In September, 1824, Henry Toland, a citizen of Pennsylvania, shipped certain tobacco and teas, in the William Penn, bound to Gibraltar. They were consigned to Pettit, the supercargo. Part were sold there by him, and one thousand dollars of the proceeds remitted to Toland. When Pettit left Gibraltar, in December, he placed the remainder of these goods, with those of other persons, in the hands of Horatio Sprague, a citizen of Massachusetts, then; and still resident in Gibraltar; with instructions to sell them and account therefor to Toland. He corresponded with the latter accordingly, up to the following June; when, on a settlement made between Pettit and Sprague, at Gibraltar, of their own affairs, it appeared that the former was largely indebted to the latter: who, thereupon, passed the proceeds of the goods, amounting to one thousand five hundred and seventy-nine dollars and eleven cents, to Pettit's credit in their account, and so wrote to Toland. No account was furnished to the latter; but in the month of September, 1825, he saw, in the possession of Pettit, a general account of sales from Sprague, in which this item was embraced, and he thereupon demanded payment of it from Sprague. This was refused; and though the commercial dealings and accounts between them continued for several years, payment of this sum never was obtained. In August, 1834, finding some property of Sprague, in Pennsylvania, the plaintiff, Toland, commenced a suit, by foreign attachment, in the circuit court of the United States for that district.

It is now objected that the court had no jurisdiction of such suit; and this objection amounts to a denial of the right of proceeding in the circuit courts of the United States, by 'foreign attachment.' If this be so, it is scarcely possible that on a point which must have so often arisen, we can be without an express judicial decision to that effect. Yet none such has been produced. Two cases are relied on; but neither of them turns upon this point, or resembles, in its circumstances, that now before the Court. In the case of Picquet v. Swan, 5 Mason, 38, the defendant was described, not as a citizen of a different state from the plaintiff, but as 'a citizen of the United States:' a defect which Judge Story declared to be fatal. Again, the service of the summons was clearly 'defective and nugatory.' In the case of Richmond v. Dreyfous, 1 Sumner, 131, it appeared that the defendant was a resident and inhabitant of another state, at the time the suit was brought; and of course exempted by the express provision of the judiciary act. But while no decisions can be produced against this mode of proceeding, in a similar case; there are several instances in which it has been adopted and allowed. Fisher v. Consequa, 2 Wash. 382; Graighle v. Nottnagle, 1 Peters' C. C. Rep. 255; Pollard v. Dwight, 4 Cranch, 421.

The law would seem to be very clear. By the act of 29th September, 1789, sec. 2, a plaintiff in the circuit court is entitled to 'all such forms of writs and modes of process' as are 'used or allowed in each state respectively;' and it is not denied that this form of writ, and mode of process, is used and allowed in Pennsylvania. We admit that this law is controlled by the act of 24th September, 1789, which describes the persons who may, and who may not be sued. By that law, the suit must be 'between a citizen of the state where the suit is brought and a citizen of another state:' a fact which appears in this case in all the pleadings. There is a proviso, however, that 'no civil suit can be brought against an inhabitant of the United States, in any other district than that whereof he is an inhabitant.' It is not denied that if the defendant, Sprague, was an inhabitant of any other state, this proceeding would not lie; but it is proved he is not: it is admitted that he has long been an inhabitant of Gibraltar. It is attempted to bland together citizenship and inhabitancy. The act of congress did not mean this; is grants a personal privilege to the inhabitants of every state, whether they be citizens or aliens: it gives to every person actually resident in any state, the privilege of being sued there, and exempts him from being dragged away to a distant tribunal: the defendant is no such resident, and consequently the law did not mean to give him any such privilege.

But, even had he been entitled to that privilege when the suit was brought, it is now too late to avail himself of it. He has pleaded in bar to the action, which is a waiver of his personal privilege. Had he pleaded in abatement, the point would have come up for the judgment of the court. By neglecting to do so, he has waived it. Harrison v. Rowan, 1 Peters' C. C. R. 491; Pollard v. Dwight, 4 Cranch, 421; Logan v. Patrick, 5 Cranch, 288; Picquet v. Swan, 5 Mason, 43. The motion to quash was a summary proceeding, on which error will not lie. If the defendant intended to avail himself of an alleged error of the court in that decision, he should have then permitted judgment to go by default; or have pleaded in abatement, so that there might have been a judgment on the point. He has pleaded over to the action, and it is now too late to avail himself of the error, if it were one.

But suppose it was error in the circuit court to refuse this privilege even on a summary motion; still, by the record now before this Court, it does not appear that they did so. The record merely sets forth a general 'motion to quash the attachment;' and, as general, a 'refusal' by the court: the grounds either of the one or the other do not appear.

Passing, then, this preliminary point of the jurisdiction of the circuit court, we come to the charge of the court, in which the plaintiff contends there is manifest error.

It is necessary to examine the pleadings carefully. This is an action of assumpsit. The defendant pleads first, non-assumpsit; second, the statute of limitations. The plaintiff joins issue on the first; and replies to the second, that he is not barred by the statute of limitations because 'the sum claimed became due in trade between them as merchants, and merchant and factor, and that no account was ever stated or settled between them.' The defendant rejoins only, that 'the sum claimed did not become due in trade between them as merchants, and merchant and factor.' The plaintiff joins issue. Here then are two issues, both tendered by the defendant: and they are first, non-assumpsit; second, were the dealings between the parties those of merchants? No other points are left open by the pleadings. The whole intention of pleading is to ascertain exactly the point in controversy; the issue tendered is the notice of this point given by one party to the other. Accordingly, on the trial, (as the receipt of the money was admitted, and the assumpsit thus proved,) the whole evidence and argument were confined to the point, whether or not 'the dealings between the parties were those of merchants, and merchant and factor.' When the court came to charge the jury, they excluded, expressly, from their consideration all the evidence as to the facts involved in this point, and all the arguments upon it: and they instructed them that the case was to be decided upon another point; namely, that where there was a settled and stated account for more than six years, it barred the plaintiff's claim: that the account of 4th July 1825, from Sprague to Pettit was such a one; and that the jury must so find, as the question was one of law, not of fact. The verdict was so found accordingly, 'under the direction of the court.'

I. The court charged on the issue, 'whether or not there was a settled and stated account between these parties;' and in so doing they erred.

1. Because the parties themselves never made such an issue in their own pleadings. The plaintiff in his replication had expressly tendered that point to the defendant, but he had not accepted it.

2. Not only was that point not made by the pleadings, but it was excluded by them; for if there was an account settled and stated, it showed a balance due to the plaintiff for more than six years, yet the defendant denies any such balance at any time. Again, it is excluded because it was traversable matter presented, totidem verbis, in the replication; and it is a settled rule of pleading, that 'every material fact alleged must be traversed;' Larned v. Bruce, 6 Mass. 57: and that 'where traversable matter is not traversed, it is confessed.' Nicholson v. Simpson, Strange, 297. The allegation made by the plaintiff in his replication, that there was no account stated, not being traversed, was thus confessed; and therefore excluded from the consideration of the jury, or the court.

3. Nor was the case either argued or tried upon this point.

It was therefore error in the court to charge on it. They had no right to put to the jury that which was concluded by the pleadings; as well might the court on a plea of payment in an action of debt on a bond, instruct the jury to find that it was, or was not the deed of the defendant.

II. But suppose the question whether there was a settled account be not concluded by the pleadings; be still open to the jury; yet this was a matter of fact. Various considerations are involved in it; it is not 'a construction of written papers;' the very plea and issue show it was for a jury: there was a complicated account between Sprague and Pettit, a third person; the extent to which Toland, the plaintiff, was connected with each of them, was an essential element. The court, in their charge, took entirely from the jury all consideration of these matters, and decided the point as entirely one of law. In this there was error.

III. To come, however, to the main inquiry. We contend that there never was, in fact, an account stated and settled, so as to deprive the plaintiff of the benefit of that exception in the statute of limitations, which exists in favour of merchants. If we establish this, as the court has charged there is such a stated and settled account, we establish a manifest error.

According to the evidence in the case, the defendant, Sprague, was the factor of Toland, the plaintiff; and corresponded with him as such, from December, 1824, to July, 1825. He was also, during the same period, engaged in trade with Pettit. In the latter month, he made up an account sales between himself and Pettit, and sent it, not to the plaintiff, but to Pettit; in whose hands the plaintiff saw it, and found it embraced some of his property; and this he demanded of him. The dealings between the plaintiff and defendant continued open for several years: Sprague always explicitly refused to state or settle an account between himself and Toland, for any item in the account sales rendered to Pettit, and denied that the former had any thing to do with it. Yet on these facts, it is contended that there was a stated and settled account between Toland and Sprague. What is a 'stated account?' Lord Hardwicke describes it. It is an account current, sent by one merchant to another, in which a balance is due from one to the other. Tickel v. Short, 2 Vesey, 239. If the receiver holds it for a certain time without objection, it becomes a stated account. It must be an account, that is, a settlement of their transactions by the parties; it must be between themselves; it must preclude both parties. But how is this account between Pettit and Sprague a settlement between the latter and Toland? Would Sprague be precluded from any claim against Toland, because he had omitted to state it in such an account with a third person? It is no settlement, no statement of an account; and consequently no bar.

In addition to these exceptions to the charge of the court, it remains to make a single remark on a point presented by the defendant, as a reason why the writ of error should be dismissed: that 'there were two pleas pleaded, the one being the general issue, and no averment in the record, that in this verdict and judgment on this plea, there was error.' In reply, the judgment is entered on the verdict, and that is expressly stated to be under the direction of the court, whose charge was confined to the question of the statute of limitations. But in truth, this is not material; for it is sufficient to show manifest error on any point in the charge of the court.

Mr. Justice BARBOUR delivered the opinion of the Court:

Notes