Process of foreign attachment cannot be properly issued by the
circuit courts of the United States in cases where the defendant is
domiciled abroad or not found within the district in which the
process issues, so that it can be served upon him. The true
construction of the eleventh section of the Judiciary Act of 1789
is that it did not mean to distinguish between those who are
inhabitants, or found within the district, by process issued out of
the circuit court and persons domiciled abroad, so as to protect
the first, and leave the others not within the protection, but even
with regard to those who are within the United States, they should
not be liable to the process of the circuit courts of the United
States unless in one or other of the predicaments stated in the
clause. And as to all those who were not within the United States,
it was not in the contemplation of Congress that they would be at
all subject, as defendants, to the process of the circuit courts
which, by reason of their being in a foreign jurisdiction, could
not be served upon them, and therefore there was no provision
whatsoever in relation to them.
By the general provisions of the laws of the United States:
1. The circuit courts can issue no process beyond the limits of
their districts.
2. Independently of positive legislation, the process can only
be served upon persons, within the same districts.
3. The acts of Congress adopting the state process adopt the
form and modes of service only, so far as the persons are
rightfully within the reach of such process, and did not intend to
enlarge the sphere of the jurisdiction of
the circuit courts.
4. The right to attach property to compel the appearance of
persons can properly be used only in cases in which such persons
are amenable to the process of the circuit court
in
personam -- that is, where they are inhabitants, or found
within the United States -- and not where they are aliens or
citizens resident abroad at the commencement of the suit, and have
no inhabitancy here.
In the case of a person being amenable to process
in
personam, an attachment against his property cannot be issued
against him except as a part of or together with process to be
served upon his person.
The circuit court of each district sits within and for that
district, and is bounded by its local limits. Whatever may be the
extent of the jurisdiction of the circuit court over the subject
matter of suits in respect to persons and property, it can only be
exercised within the limits of the district. Congress might have
authorized civil process from any circuit court to have run into
any state of the Union. It has not done so. It has not in terms
authorized any civil process to run into any other district, with
the single exception of subpoenas to witnesses within a limited
distance. In regard to final process, there are two cases, and only
two, in which writs of execution can now by law be served in any
other district than that in which the judgment was rendered -- one
in favor of private persons in another district of the same state
and the other in favor of the United States in any part of the
United States.
A party against whose property a foreign attachment has issued
in a circuit court of the United States, although the circuit court
had no right to issue such an attachment, having appeared to the
suit and pleaded to issue, cannot afterwards deny the jurisdiction
of the court. The party had, as a personal privilege, a right to
refuse to appear, but it was also competent to him to waive the
objection.
Page 37 U. S. 301
The Judiciary Act of 1789 authorizes the Supreme Court to issue
writs of error to bring up final judgments or decrees in a civil
action, &c. The decision of the circuit court upon a rule or
motion is not of that character. Such decisions are not final
judgments.
No principle of law is better settled than that to bring a case
within the exception of merchandise accounts between merchant and
merchant in the statute of limitations, there must be an account,
and that an account open or current; that it must be a direct
concern of trade; that liquidated demands on bills and notes, which
are only traced up to the trade or merchandise, are too remote to
come within this description. But when the account is stated
between the parties, or when anything shall have been done by them
which by their implied admission is equivalent to a settlement, it
has then become an ascertained
debt. Where there is a settled account, that becomes the cause
of action, and not the original account, although it grew out of an
account between merchant and merchant, their factors or
servants.
T. shipped a quantity of merchandise by P. to Gibraltar, who, on
arriving there, placed the goods in the hands of S. and received
advances from S. upon them. In 1825, S. sold the goods and
transmitted an account sales, as of the merchandise received from
P. to T., who received it in September, 1825, stating the balance
of the proceeds to be two thousand five hundred and seventy-eight
dollars. T., in 1825, wrote to S. directing him to remit the amount
to him, deducting one thousand dollars, which had been advanced by
S. on the goods, and which had been remitted by P. to T. S. refused
to make the remittance, alleging that P. was largely indebted to
him. No suit was instituted by T. against S. until August, 1834.
The account was a stated account, and the statute of limitations
applied to it.
The mere rendering an account does not make it a stated account,
but if the other party receives it, admits the correctness of the
items, claims the balance, or offers to pay it, as it may be in his
favor or against him, then it becomes a stated account. It is not
at all important that the account was not made out between the
plaintiff and the defendant, the plaintiff having received it,
having made no complaint as to the items or the balance, but, on
the contrary, having claimed that balance, thereby adopted it, and
by his own act treated it as a stated account.
T. shipped merchandise consigned to P. as supercargo; P. put the
goods into the hands of S., a merchant of Gibraltar, as the
merchandise of T., and received an advance upon them. S. having
sold the merchandise, rendered an account of the sales, stating the
sales to have been made by the order of P. and crediting the
proceeds in account with P. The account came into the hands of T.
in 1825, and he claimed the balance of the proceeds from S.,
deducting the advance made by S. to P., and payment of the same was
refused by P.
Held that as T. had a right in 1825 to call
on S. to account, and as no suit was instituted against S. until
1834, S. having always denied his liability to T. for the amount of
the sales from the time of the demand, the statute of limitations
was a bar to an action to recover the amount from S.
The effect and nature of an averment in a plea put in by a
defendant, when it is not essential to the plea.
Where the items of an account stated were not disputed, but were
admitted and payment of the same demanded, it was not taking the
question of fact whether the account was a stated account from the
jury for the court to instruct the jury that the account was a
stated account.
Page 37 U. S. 302
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 McCrea, 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
Page 37 U. S. 303
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 tomorrow in the ship
William
Penn for Savannah, and have left the following instructions
with my friend,
Page 37 U. S. 304
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 18 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 6 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
favorable."
On 22 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 favorable terms for a remittance, then to make the
return in bills. Mr. Pettit promised a strict compliance with all
these things, but since the
Page 37 U. S. 305
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 favored 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 18 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 18 January,
1825, informs the plaintiff
"that Charles Pettit had left Gibraltar on 19 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 7 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 12 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
Page 37 U. S. 306
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 anyone else. Here follows the other part
of his instructions of the date of 18 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
guarantee the conduct of your agent, who always is accountable to
you for his conduct. Here follows the extract of his order of 18
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."
"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 4, 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 18
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
Page 37 U. S. 307
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 18 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 3 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 net
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
Page 37 U. S. 308
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.
The circuit court charged the jury:
"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's claiming to retain the balance for Pettit's debt,
nor did it change the
Page 37 U. S. 309
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, shows 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.
Page 37 U. S. 327
MR. JUSTICE BARBOUR delivered the opinion of the Court:
The suit was commenced by the plaintiff in error against the
defendant in error by a process known in Pennsylvania by the name
of a foreign attachment, by which, according to the laws of that
state, a debtor who is not an inhabitant of the commonwealth is
liable to be attached by his property found therein to appear and
answer a suit brought against him by a creditor.
It appears upon the record that the plaintiff is a citizen of
Pennsylvania and the defendant a citizen of Massachusetts, but
domiciled at the time of the institution of the suit and for some
years before without the limits of the United States, to-wit, at
Gibraltar, and when the attachment was levied upon his property,
not being found within the District of Pennsylvania.
Upon the return of the attachment, executed on certain
garnishees holding property of, or being indebted to the defendant,
he, by his attorney, obtained a rule to show cause why the
attachment should not be quashed, which rule was afterwards
discharged by the court, after which the defendant appeared and
pleaded. Issues were made up between the parties on which they went
to trial, when a verdict and judgment were rendered in favor of the
defendant. At the trial, a bill of exceptions was taken by the
plaintiff stating the evidence at large and the charge given by the
court to the jury, which will hereafter be particularly noticed
when we come to consider the merits of the case. But before we do
so, there are some preliminary questions arising in the case which
it is proper for us to dispose of.
And the first is whether the process of foreign attachment can
be properly used by the circuit courts of the United States in
cases where the defendant is domiciled abroad and not found within
the district in which the process issues, so that it can be served
upon him.
The answer to this question must be found in the construction of
the 11th section of the Judiciary Act of 1789, as influenced by the
true principles of interpretation and by the course of legislation
on the subject.
That section, as far as relates to this question, gives to the
circuit courts original cognizance, concurrent with the courts of
the several states, of all suits of a civil nature at common law or
in equity where
Page 37 U. S. 328
the matter in dispute exceeds, exclusive of costs, the sum or
value of five hundred dollars and an alien is a party, or the suit
is between a citizen of the state where the suit is brought and a
citizen of another state. It then provides that no person shall be
arrested in one district for trial in another in any civil action
before a circuit or district court, and moreover that 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 respects persons who are
inhabitants or who are found in a particular district, the language
is too explicit to admit of doubt. The difficulty is in giving a
construction to the section in relation to those who are not
inhabitants and not found in the district.
This question was elaborately argued by the Circuit Court of
Massachusetts in the case of
Picquet v. Swan, reported in
5 Mason 35.
Referring to the reasoning in that case generally as having
great force, we shall content ourselves with stating the substance
of it in a condensed form, in which we concur. Although the process
acts of 1789 and 1792 have adopted the forms of writs and modes of
process in the several states, they can have no effect where they
contravene the legislation of Congress. The state laws can confer
no authority on this Court, in the exercise of its jurisdiction by
the use of state process, to reach either persons or property which
it could not reach within the meaning of the law creating it. The
Judiciary Act has divided the United States into judicial
districts. Within these districts, a circuit court is required to
be holden. The circuit court of each district sits within and for
that district, and is bounded by its local limits. Whatever may be
the extent of their jurisdiction over the subject matter of suits
in respect to persons and property, it can only be exercised within
the limits of the district. Congress might have authorized civil
process from any circuit court to have run into any state of the
Union. It has not done so. It has not in terms authorized any
original civil process to run into any other district, with the
single exception of subpoenas for witnesses within a limited
distance. In regard to final process, there are two cases, and two
only, in which writs of execution can now by law be served in any
other district than that in which the judgment was rendered -- one
in favor of private persons in another district of the same state
and the other in favor of the United States in any part of
Page 37 U. S. 329
the United States. We think that the opinion of the legislature
is thus manifested to be that the process of a circuit court cannot
be served without the district in which it is established without
the special authority of law therefor.
If such be the inference from the course of legislation, the
same interpretation is alike sustained by considerations of reason
and justice. Nothing can be more unjust than that a person should
have his rights passed upon and finally decided by a tribunal
without some process being served upon him by which he will have
notice which will enable him to appear and defend himself. This
principle is strongly laid down in
Buchanan v. Rucker, 9
East 192. Now it is not even contended that the circuit courts
could proceed to judgment against a person who was domiciled
without the United States and not found within the judicial
district so as to be served with process where the party had no
property within such district. We would ask what difference there
is in reason between the cases in which he has and has not such
property? In the one case as in the other the court renders
judgment against a person who has no notice of the proceeding. In
the one case as in the other they are acting on the rights of a
person who is beyond the limits of their jurisdiction, and upon
whom they have no power to cause process to be personally served.
If there be such a difference, we are unable to perceive it.
In examining the two restraining clauses of the eleventh
section, we find that the process of capias is in terms limited to
the district within which it is issued. Then follows the clause
which declares that no civil suit shall be brought before either of
the 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. We think that the true construction of this clause is that it
did not mean to distinguish between those who are inhabitants of or
found within the district and persons domiciled abroad, so as to
protect the first and leave the others not within the protection,
but that even in regard to those who were within the United States,
they should not be liable to the process of the circuit courts
unless in one or the other predicament stated in the clause, and
that as to all those who were not within the United States, it was
not in the contemplation of Congress that they would be at all
subject, as defendants, to the process of the circuit courts,
which, by reason of their being in a
Page 37 U. S. 330
foreign jurisdiction, could not be served upon them, and
therefore there was no provision whatsoever made in relation to
them.
If, indeed, it be assumed that Congress acted under the idea
that the process of the circuit courts could reach persons in a
foreign jurisdiction, then the restrictions might be construed as
operating only in favor of the inhabitants of the United States, in
contradistinction to those who were not inhabitants, but upon the
principle which we have stated that Congress had not those in
contemplation at all who were in a foreign jurisdiction, it is easy
to perceive why the restriction in regard to the process was
confined to inhabitants of the United States. Plainly because it
would not have been necessary or proper to apply the restriction to
those whom the legislature did not contemplate as being within the
reach of the process of the courts, either with or without
restrictions.
With these views, we have arrived at the same conclusions as the
Circuit Court of Massachusetts as announced in the following
propositions,
viz.,
1st. That by the general provisions of the laws of the United
States, the circuit courts can issue no process beyond the limits
of their districts.
2d. That independently of positive legislation, the process can
only be served upon persons within the same districts.
3d. That the acts of Congress adopting the state process adopt
the form and modes of service only so far as the persons are
rightfully within the reach of such process, and did not intend to
enlarge the sphere of the jurisdiction of the circuit courts.
4th. That the right to attach property to compel the appearance
of persons can properly be used only in cases in which such persons
are amenable to the process of the court
in personam --
that is, where they are inhabitants, or found within the United
States, and not where they are aliens, or citizens resident abroad
at the commencement of the suit and have no inhabitancy here, and
we add that even in case of a person being amenable to process
in personam, an attachment against his property cannot be
issued against him except as part of or together with process to be
served upon his person.
The next inquiry is whether the process of attachment having
issued improperly, there has anything been done which has cured the
error. And we think that there is enough apparent on the record to
produce that effect. It appears that the party appeared and pleaded
to issue. Now if the case were one of a want of jurisdiction in the
court, it would not, according to well established principles, be
competent for the parties by any act of theirs to give it. But that
is not the case. The court had jurisdiction over the parties
Page 37 U. S. 331
and the matter in dispute; the objection was that the party
defendant, not being an inhabitant of Pennsylvania nor found
therein, personal process could not reach him, and that the process
of attachment could only be properly issued against a party under
circumstances which subjected him to process
in personam.
Now this was a personal privilege or exemption, which it was
competent for the party to waive. The cases of
Pollard v.
Wright, 4 Cranch 421, and
Barry v.
Foyles, 1 Pet. 311, are decisive to show that after
appearance and plea, the case stands as if the suit were brought in
the usual manner. And the first of these cases proves that
exemption from liability to process, and that in case of foreign
attachment, too, is a personal privilege which may be waived, and
that appearing and pleading will produce that waiver.
It has however been contended that although this is true as a
general proposition, yet the party can avail himself of the
objection to the process in this case, because it appears from the
record that a rule was obtained by him to quash the attachment,
which rule was afterwards discharged, thus showing that the party
sought to avail himself of the objection below, which the court
refused. In the first place, it does not appear upon the record
what was the ground of the rule, but if it did we could not look
into it here unless the party had placed the objection upon the
record in a regular plea, upon which, had the court given judgment
against him, that judgment would have been examinable here. But in
the form in which it was presented in the court below, we cannot
act upon it in a court of error. The Judiciary Act authorizes this
Court to issue writs of error to bring up a final judgment or
decree in a civil action, or suit in equity, &c. The decision
of the court upon a rule or motion is not of that character. This
point, which is clear upon the words of the law, has been often
adjudged in this Court; without going further, it will be
sufficient to refer to
31 U. S. 6 Pet.
648;
34 U. S. 9 Pet. 4. In
the first of these cases, the question is elaborately argued by the
Court, with a review of authorities, and it comes to this
conclusion that it considers all motions of this sort (that is) to
quash executions, as addressed to the sound discretion of the
court, and as a summary relief, which the court is not compellable
to allow. That the refusal to quash is not, in the sense of the
common law, a judgment, much less is it a final judgment. It is a
mere interlocutory order. Even at common law, error only lies from
a final judgment, and by the express provisions of the
Judiciary
Page 37 U. S. 332
Act, a writ of error lies to this Court only in cases of final
judgments.
Having now gotten rid of these preliminary questions, we come,
in the order of argument, to the merits of the case. To understand
these, it will be necessary to look into the pleadings, the
evidence, and charge of the court as embodied in the
exceptions.
The declaration is in assumpsit, and originally contained three
counts,
viz., the first, a count charging the delivery of
certain goods to the defendant upon a promise to account and pay
over the proceeds or sale thereof by the defendant, and a breach of
promise in not accounting or paying the proceeds of the sale; 2dly,
a count in
indebitatus assumpsit; and 3dly a count upon an
account stated. A rule having been granted to amend the
declaration, by striking out this last count, and that rule having
been made absolute, we shall consider the declaration as containing
only the two first counts. To this declaration the defendant
pleaded the general issue, which was joined by the plaintiff, and
also the act of limitations; to this second plea the plaintiff
replied, relying on the exception in the statute in favor of such
accounts as concern the trade of merchandise between merchant and
merchant, their factors or servants, averring that the money in the
several promises in the declaration became due and payable on trade
had between the plaintiff and defendant, as merchant, and merchant
and factor, and wholly concerned the trade of merchandise between
the plaintiff as a merchant, and the defendant as a merchant and
factor of the plaintiff, and averring also that no account whatever
of the said money, goods, and merchandises, in the declaration
mentioned or any part thereof was ever stated or settled between
them. The defendant rejoined that he was not the factor of the
plaintiff and that the money in the several promises in the
declaration mentioned did not become due and payable in trade had
between the plaintiff and defendant as merchant and merchant and
factor, and on this issue was joined. On the trial of these issues
there were sundry letters between the parties and accounts given in
evidence, which are set forth at large in a bill of exceptions in
relation to which the court gave a charge to the jury, the jury
having found a verdict for the defendant, U.S. and the court having
rendered a judgment in his favor, the case is brought by the
plaintiffs into this Court by writ of error. And the question is
whether there is any error in the charge of the court as applied to
the facts of the case stated in the exception. The court, after
going
Page 37 U. S. 333
at large into the facts of the case and the principles of law
applying to it, concluded with this instruction to the jury: that
there was no evidence in the cause which could justify it in
finding that the account in evidence was such a mutual open one as
could bring the case within the exception of the act of
limitations.
In deciding upon the correctness of this instruction it is
necessary to inquire what is the principle of law by which to test
the question whether a case does or does not come within the
exception of the statute in favor of accounts between merchant and
merchant, their factors or servants. No principle is better settled
than that to bring a case within the exception, it must be an
account, and that an account open or current.
See 2d Wms.
Saund. 127, d. e., note 7. In 2 Johns. 200, the court said that the
exception must be confined to actions on open or current accounts;
that it must be a direct concern of trade; that liquidated demands,
or bills and notes which are only traced up to the trade or
merchandise, are too remote to come within this description. But
the case of
Spring v. Ex'rs. of
Gray in this Court. 6 Pet. 151, takes so full and
accurate a review of the doctrine and cases as to render it
unnecessary to refer to other authorities. It distinctly asserts
the principle that the account, to come within the exception, must
be open or current. This construction, so well settled on
authority, grows out of the very purpose for which the exception
was enacted. That purpose was to prevent the injustice and injury
which would result to merchants having trade with each other, or
dealing with factors, and living at a distance, if the act of
limitations were to run, where their accounts were open and
unsettled; where, therefore, the balance was unascertained, and
where too the state of the accounts might be constantly fluctuating
by continuing dealings between the parties.
But when the account is stated between the parties, or when
anything shall have been done by them which, by their implied
admission, is equivalent to a settlement, it has then become an
ascertained debt. In the language of the Court of Appeals of
Virginia, 4 Leigh 249, "all intricacy of account, or doubt as to
which side the balance may fall, is at an end," and thus the case
is neither within the letter nor the spirit of the exception. In
short, when there is a settled account, that becomes the cause of
action, and not the original account, although it grew out of an
account between merchant and merchant, their factors or
servants.
Let us now inquire how far this principle applies to the facts
of
Page 37 U. S. 334
this case. It appears by the bill of exceptions that the facts
are these:
In the year 1824, the plaintiff consigned a quantity of
merchandise, by the ship
William Penn, bound for
Gibraltar, to a certain Charles Pettit, accompanied with
instructions as to the disposition of it. Pettit, after arriving at
Gibraltar and remaining there a short time, placed all the
merchandise belonging to the plaintiff which remained unsold in the
hands of the defendant, to be disposed of by him for plaintiff's
account. The plaintiff produced on the trial an account of the
sales of the aforesaid merchandise, dated June 30, 1825 signed by
the defendant, as having been made by him, amounting in net
proceeds to two thousand five hundred and seventy-nine dollars and
thirteen cents, and showing that balance.
In September, 1825, the plaintiff wrote to the defendant,
requesting him to remit to him the net proceeds of this
merchandise, amounting to two thousand five hundred and
seventy-nine dollars and thirteen cents, after deducting therefrom
a bill of exchange of one thousand dollars, which had been drawn by
defendant in favor of Charles Pettit, on a house in New York.
Pettit being indebted to the defendant, as alleged by him, in a
large sum of money, for advances, and otherwise, the defendant
refused to pay the plaintiff the amount of the sales of the
merchandise, and denied his liability to account to him
therefor.
In addition to the demand before stated, by plaintiff on the
defendant, for the balance of the account of sales by letter, on
the trial of the cause, the counsel for the plaintiff, in opening
the case, claimed the balance of an account between Sprague the
defendant, and Charles Pettit, being the precise amount of the
balance of the account of sales, after deducting the bill of
exchange for one thousand dollars.
It appears that the plaintiff was in possession of the account
of sales as early as September, 1825.
Upon this state of facts appearing in the record, the question
is whether the cause of action in this case is an open, or current
account between the plaintiff and defendant, as merchant and
factor, concerning merchandise; or whether it is an ascertained
balance, a liquidated sum, which, although it grew out of a trade
of merchandise, is, in legal effect, under the circumstances, a
stated account? We think it is the latter.
In the language of the court which gave the charge, we think
that
Page 37 U. S. 335
"the claim is for a precise balance, which was demanded by the
plaintiff from the defendant in 1825." From the nature of the
account and the conduct of the parties, there was from the time the
account of sales was received by the plaintiff showing the balance,
and demanded by the plaintiff of the defendant, no unsettled open
account between them as merchant and merchant, or merchant and
factor. We agree in opinion with the circuit court that there was a
matter of controversy brought to a single point between them --
that is, which of them had, by law, a right to a sum of money,
ascertained by consent to amount to one thousand five hundred and
seventy-nine dollars. That the nature of the account is not changed
by there being a controversy as to a balance stated, which the
defendant does not ask to diminish, or the plaintiff to increase,
and as neither party asks to open the account, and both admit the
same balance, there can be no pretense for saying that it is still
open. As the circuit court said, the question between them is not
about the account or any item in it, but as to the right of the
defendant to retain the admitted balance, to repay the advances
made to Pettit. We agree with the court that the mere rendering an
account does not make it a stated one, but that if the other party
receives the account, admits the correctness of the items, claims
the balance, or offers to pay it, as it may be in his favor or
against him; then it becomes a stated account. Nor do we think it
at all important that the account was not made out as between the
plaintiff and defendant, the plaintiff having received it, having
made no complaint as to the items or the balance, but on the
contrary having claimed that balance, thereby adopted it, and by
his own act treated it as a stated account. We think, therefore,
that the act of limitations began to run from the year 1825, when
that demand was made, and consequently that the instruction of the
court was correct in saying that it was not within the
exception.
It has however been argued that whatever might be the conclusion
of the court as resulting from the evidence that the defendant had
admitted upon the record that the account was an open one. It is
said that the plaintiff having averred in his replication that
there was no account stated, or settled between him and the
defendant, and the defendant not having traversed that averment in
his rejoinder, the matter contained in that averment is admitted.
It is a rule in pleading that where in the pleading of one party
there is a material averment, which is traversable, but which is
not traversed by the other party, it is admitted. We think that the
rule does not apply to this
Page 37 U. S. 336
case, because the negative averment in the replication that no
account had been stated between the parties, was not a necessary
part of the plaintiff's replication, to bring him within the
exception of the statute in relation to merchants' accounts.
Inasmuch, then, as the replication without that averment would be
sufficient, we do not consider it as one of those material
averments, the omission to traverse which is an admission of its
truth, within the rule before stated.
But in another aspect of this case, the statute of limitations
would apply to, and bar the plaintiff's claim, if the account of
sales were regarded as having no operation in the case. The
plaintiff, standing in the relation which he did to the defendant
as it respects this merchandise, had a right to call upon him to
account; he did make that demand, and the defendant refused to
render one, holding himself liable to account to Pettit only. From
the moment of that demand and refusal, the statute of limitations
began to run.
See 1 Taunton 572.
It was argued that the question whether there was a stated
account or not, was a question of fact for the jury, and that
therefore the court erred in taking that question from them and
telling them that this was a stated account.
The answer is that there was no dispute about the facts, and
that the plaintiff claimed the balance of the account as being the
precise sum due to him. It was therefore competent to the court to
instruct the jury that it was a stated account.
Upon the whole, we think there is no error in the judgment: it
is therefore
Affirmed with costs.
MR. CHIEF JUSTICE TANEY.
I concur with the majority of the Court in affirming the
judgment of the circuit court. But I do not assent to that part of
the opinion which declares that the circuit courts of the United
States have not the power to issue the process of attachment
against the property of a debtor who is not an inhabitant of the
United States. It does not appear by the record that this point was
raised in the court below, and I understand from the learned judge
who presided at the trial that it was not made.
The decisions on this question have not been uniform at the
circuits. In several districts where this process had been
authorized by the laws of the states, the circuit courts of the
United States adopted it in practice, and appeared to have
considered the Act of Congress of
Page 37 U. S. 337
1789, as having authorized its adoption. The different opinions
entertained in different circuits, show that upon this point the
construction of the act of 1789 is not free from difficulty, and as
the legality of this process has been recognized in some of the
circuits for many years, it is probable that condemnations and
sales have taken place under such attachments, and that property is
now held by
bona fide purchasers who bought, and paid
their money, in the confidence naturally inspired by the judgment
of the court.
If the case before us required the decision of this question, it
would be our duty to meet it and decide it. But the point is not
necessarily involved in the decision of this case, and I am
therefore unwilling to express an opinion upon it.
The attachment, in the case before us was dissolved by the
appearance of the defendant, and no final judgment was given upon
it in the court below. When the defendant appeared and pled in bar
to the declaration filed by the plaintiff, the controversy became
an ordinary suit between plaintiff and defendant, the proceedings
on the attachment were at an end, and could in no degree influence
the future progress and decision of the action. And this Court, in
revising the judgment given by the circuit court in such an action,
cannot look back to the proceedings in the attachment in which no
judgment was given, nor can the refusal of the circuit court to
quash the attachment on the motion made by the defendant, be
assigned as error in this Court. The validity of that process,
therefore, need not be drawn into question in the judgment of this
Court, on the case presented here for decision. For whether the
attachment was legal or illegal, the judgment of the circuit court,
as the case comes before us, must be affirmed. And as the question
is an important one, and may affect the rights of individuals who
are not before the court, and as the case under consideration does
not require us to decide it; I think it advisable to abstain from
expressing an opinion upon it, and do not assent to that part of
the opinion of the court which declares that the process in
question is not authorized by the acts of Congress.
MR. JUSTICE BALDWIN agreed with THE CHIEF JUSTICE in the opinion
delivered by him; if it was necessary, he would go further as to
the authority of the courts of the United States to issue foreign
attachments.
MR. JUSTICE WAYNE agreed with THE CHIEF JUSTICE in opinion.
He
Page 37 U. S. 338
thought the circuit courts of the United States had authority to
issue foreign attachments. The decision on that point is not
necessary to the decision of this case.
MR. JUSTICE CATRON had not formed any opinion on the question of
the right of the circuit courts to issue foreign attachments.
He thought that question did not come before the court in this
case, and it was not necessary to examine or decide it.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the Eastern
District of Pennsylvania, and was argued by counsel. On
consideration whereof it is now here ordered and adjudged by this
Court that the judgment of the said circuit court in this cause be
and the same is hereby affirmed with costs.
