This was an action brought on a Certificate from the Treasury Department of a balance due to the U. S. on the 4th. day of February, 1821, returnable to the last term of this court, Septr. 1821. —
The declaration is in general indebitatus assumpsit. The first count is for money had and received; the second for money lent and advanced; and the third is on an account stated.
The defendant plead non assumpsit.
Sibley, District Attorney, moved the court at the last term for a judgment on the Certificate without a trial. He founded his motion on the act of Congress of 1797, 2 v. L.U.S. 594, the 3d Sec. of which provides that the court shall grant jugt. at the return term on motion, on a certified transcript from the books and proceedings of the Treasury.
Doty, for the defendant, contended the U. S. had two modes by which they could recover their debts; one remedy was by the statute cited, the other at common law. Whichever they adopt they must pursue. In this case the common law course has been adopted by the Dist. Atty., he having filed his declaration. Under the statue no pleadings are necessary; and this is the distinguishing feature between them.
He also claimed the right of trial by jury, as gurranteed, by the Ordinance of 1787 to the inhabitants of this Territory, “in all cases.” —The laws of the United States have also provided, that in their courts every issue in fact shall be tried by jury. —
Witherell, Judge. The motion must be overruled. The Dist. Atty. has elected what remedy he will pursue and he must follow it. —
Judges Woodward and Griffin were unable to attend the court from sickness. —
The case was continued by the court for the want of time to try it, to the present term. —
This case was called on for trial.
Doty, moved for leave to amend his plea by filing a notice of set-off.