After a trial and verdict in the circuit court upon which
judgment was entered, the judgment was reversed, it not appearing
in the record that either plaintiff or defendant was an alien or
that they were citizens of different states.
The record, as abridged for the judges, presented the following
case:
"The Marquis de Caso Enrille instituted an action on the case
against Thomas Turner, the administrator of Wright Stanley, in the
Circuit Court of North Carolina of June term, 1795."
"A declaration in case was filed 'by the Marquis de Caso
Enrille, of ___ in the Island of ___ ' of June term, 1796, in which
it is set forth that Wright Stanley (the intestate) and John Wright
Stanley and James Greene were 'merchants and partners at Newbern in
the said district;' that Wright Stanley survived the other
partners; that on 4 June 1791, in the lifetime of all the partners,
they were indebted 'unto the said Marquis in ___ dollars;' and in
consideration thereof, assumed to pay, &c. The 2d count
insimul computassent, when the said partners 'were found
in arrear to the said Marquis in other dollars,' &c. The
plaintiff concludes with the usual averments of nonpayment, 'to the
damage of the said Marquis ___ dollars,' &c."
"On 30 November 1796, the defendant appeared, and pleaded, 1st,
nonassumpsit intest. replication and issue; 2d, the
statute of limitations as to the intestate; replication, an account
current between merchant and factor; rejoinder and issue; 3d,
setoff, that the plaintiff was indebted to the intestate, on 1
January 1792, in more than the damages by the plaintiff sustained,
&c., to-wit, in $4,000 for money had and received by the
plaintiff to the intestate's use, which sum is still due to the
defendant as administrator; replication that plaintiff owed
nothing, &c.; rejoinder and issue; 4th, the statute of
limitations as to the administrator; replication that the demand
was made within three years, &c.; rejoinder and issue; 5th,
plene administravit; replication assets; rejoinder and
issue."
"On 1 June 1799, the issues were tried, a verdict was given on
all the issues for the plaintiff, and the jury assessed damages at
$3,289.65. Judgment for damages, costs, and charges."
"Writ of error. Errors assigned: 1st, that it does not appear on
the pleadings, &c., that either plaintiff or defendant was an
alien or that they were citizens of different states; 2d, that
there are blanks in the declaration for places, dates, and sums;
3d, the general errors; plea,
in nullo est erratum;
replication and issue. "
Page 4 U. S. 8
By the COURT.
The decision in the case of
Bingham v. Cabot must
govern the present case.
Let the judgment be reversed with costs.
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