
37 U.S. 300 (1838)
12 Pet. 300
HENRY TOLAND, PLAINTIFF IN ERROR
v.
HORATIO SPRAGUE.
Supreme Court of United States.

*309 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.
*327 Mr. Justice BARBOUR delivered the opinion of the Court:
This is a writ of error to a judgment of the circuit court of the United States for the district of Pennsylvania.
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 favour 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 *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 5th 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 subpnas 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 favour of private persons, in another district of the same state, and the other in favour of the United States, in any part of *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 therefore.
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 *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: Ist. 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 any thing 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 *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 Peters, 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 6 Peters, 648; 9 Peters, 4. In the first of these cases the question is elaborately argued by the Court, with a review of authorities; and they come to this conclusion that they consider 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 *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 court 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 favour 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, and the court having rendered a judgment in his favour, 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 *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 them 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 favour 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 say 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 and others v. The Ex'rs. of Gray, in this Court: 6 Peters, 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 any thing 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 *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, date June 30th, 1825, signed by the defendant, as having been made by him, amounting in nett 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 nett 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 favour 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 who gave the charge, we think that *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 pretence for saying that it is still open. As the circuit court say, 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 favour 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 *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 *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 recognised 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 *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.
