Mr Justice M'Lean
delivered the opinion of the Court:
This suit was brought by writ of error from the circuit court of Kentucky, to reverse a judgment obtained in that court against a claim prosecuted by the United States. The following errors are assigned by the attorney'general:
1. That the judgment of the circuit court on the defendant's demurrer to the surrejoinder of the plaintiffs, growing out of the sixth, seventh and eighth pleas of the defendant, ought to have been .for the plaintiffs and not for the defendant.
2. .That the court-erred in not permitting the plaintiffs to withdraw their replication to the defendant's several pleas of. limitation, and to plead the special agreement on that subject-between Morrison and Buford.
The declaration contains but one count,.in which it is air leged, that the defendant was indebted to the United States in the sum of ten thousand dollars, for so much money by him before that time had and received, as an officer of the United States to their use, as by account of the said defendant' with the- said United States, settled, examined and adjusted, at the treasury department, duly certified, fully appears, &c.
The treasury statement is as follows :
Dr Thomas Buford, late deputy commissary in account with the United Statesj
To James Morrison, for amount received from him per receipt, 21st December 1812, for which he is accountable, - . . - - - ‡ 10,000
The receipt referred to is in the following words :
Received of James Morrison; deputy quarter master general, ten thousand dollars, for which sum I promise to account to him when called on. Signed Thomas Buford, deputy commissary of U. S. Á.
Under the following act of congress, this receipt was assigned to the United States.
" Be it enacted by the senate and house of representatives, in congress assembled, that the accounting officers of the treasury department be and they are hereby authorised to allow James Morrison, late deputy quarter master general, in the settlement of his accounts, the sum of ten thousand dollars, which was advanced by James H. Pendell, an assistant deputy quarter master general, providing that the said James Morrison shall fijst assign and transfer to the United States all his right and claim to the moneys men tioned in a certain receipt by said Thomas Buford to said James Morrison, bearing date the 21st day of December, in the year 1812, &c." The words of the assignment are,
" Now, I James Morrison, in pursuance of the provisions of said law, do hereby assign and transfer to thé United States, all my right and claim to the moneys mentioned in said receipt. Witness my hand and seal this 7th day of March 1823. Signed James Morrison.
In the sixth plea the defendant says, the plainuus tu>u*7 non, because he says that the account upon which the plaintiffs' suit is founded, was for money alleged t<? have been advanced by James Morrison, to the defendant/ on the 21st day of December 1812, in the district aforesaid, amounting to the sum of ten thousand dollars, for which, by the terms of the transaction and agreement of said parties thereto, said Buford was to account to said Morrison for the same, and that said account and claim of said Morrison was, on the 7th day of March 1823, under and by virtue of an act of congress, assigned and transferred by said Morrison to said plaintiffs, and the said defendant in fact says, that said demand and cause of action aforesaid, did not accrue to said Morrison within five years next before said assignment, and this he is ready to 'verify," &c.
The seventh plea states the receipt of the money by the defendant from Morrison, the assignment of the receipt; and that without any other consideration, and without the consent and privity of the defendant, the account in the declaration mentioned, was settled at the treasury; to which he has at no time assented; and the defendant says that he did not undertake and assume to pay the said debt, in the declaration mentioned, within five years next before the assignment by the said Morrison, nor then, nor at any time subsequent.
In the eighth plea the defendant says,-that the assumpsit aftd demand of said plaintiffs a'rose from and by virtue of a claim which was held by one. James Morrison, for money by him advanced and loaned to said defendant, which was assigned, &ol
The attorney for the United States, in his replication, says; that by any thing contained, in the sixth, seventh and eighth pleas of the defendant, they ought not to be barred, because they say that the said demand in the .declaration accrued for and in consideration of ten thousand dollars of and belonging to the United States, and by the said James Morrison, as an.officer of the" United States, advanced to the said Thomas. Buford, as an officer of the-United States, to wit, as deputy commissary, then and there to the use of the United States, and by the said Thomas Buford, in his official character as aforesaid, receipted to said James Morrison in his official character as deputy quarter master general, and the said attorney brings here into court the said receipt, signed with the proper name of the said Thomas, in his official character as aforesaid, the assignment, and the act of congress, in the sixth, seventh and eighth pleas of the defendant mentioned, duly certified, &c. which sum of money is the same as referred to in the above pleas,. &c.
To this replication there is-a rejoinder by the defendant, asserting that the above sum of money was received upon an individual' transaction,' &c. The attorney for the United States in his surrejoinder says, that the said money demanded by the declaration and expressed in said receipt and assignment in the sixth, seventh and eighth pleas of the defendant, was the proper money of the United States, lent and advañced by the said quarter master general to the said Thomas Buford, as deputy commissary, and to -the use of the said United States, &c.
To this the defendant demurs, .which presents for consideration, the sufficiency of the sixth, seventh and eighth pleas of the defendant.
In behalf of the government it is contended,-
1. That a good cause of action by the United States against Buford, existed, prior to the assignment.
2. That the-treasury settlement gave a right of action^ and also, the assignment.
3. If the sum received by Buford from Morrison was public money, whether it was received in an official or private capacity, there can be no doubt that Buford received it to the use of the United States, and that they may maintain an action'against him.
The United States had a right to treat Morrison as their agent, in this transaction, by making Buford their debtor, and to an action brought against him, for money had and re-, ceived, the statute of limitations would be no bar. It is therefore important to consider on what ground the plain-., tiffs seek to recover in this case.-
Is the declaration general or special? It contains only one count, and that sets out the cause of action as arising from a settled account at the treasury department. The declaration must therefore be consideré^ aS special, and if the plaintiffs recover, they must recover upon the ground stated.
The treasury statement, the receipt and the assignment of it, are made a part of the declaration.
An account stated at the treasury department, which does not arise in the ordinary mode of doing business in. that department, can derive no additional validity from being certified under the act of congress. Such a statement can only be regarded 'as establishing items for moneys disbursed through the ordinary channels of the department, where the transactions are shown by its books. In these cases-the officers may well certify,, for they, must have official knowledge of the facts stated. •
But where moneys come into the hands of an individual, as in the case under consideration, the books of the treasury do not exhibit the facts, nor can they be officially known to the officers of the department. In this case, therefore, the claim must be established, not by the treasury statement, but by the evidence on which that statement was made.
The account against Buford is founded on the receipt, and was made out on the day it was assigned by Morrison, under the special act of congress. Until this time, Morrison was charged on the-boobs of the treasury with this sum of ten thousand dollars, and there can be. no doubt that he and his sureties were liable for it. . .
As the advance of this sum to Buford was .not. made in pursuance of any authority, the treasury officers had no right to release Morrison from liability, by crediting his account with so much money paid to Buford..
The declaration being special upon the treasury account; and the account being raised upon the assignment of the receipt, the claim of the United States to the sum in controversy, as presented, cannot be considered as existing prior to the assignment.
It.is objected that, under this assignment, the United States may claim as assignees in equity, but not at law. This objection seems not to be well founded. In England, any^, instrument or claim, though not negotiable, may be assigned to the king, who can sue on it, in his own name. No valid objection is perceived against giving the same effect to an assignment to the government in this country. But the special act under which this assignment was made; puts this question at rest. This act authorises the assignment; consequently, when made, the legal right is vested in the government, and authorises a charge against Buford, on the books of the treasury.
As more than five years had elapsed from the date of the receipt to the assignment, the statute of limitations will bar a recovery of this claim, unless the transfer of it to the United States has changed its character, or the terms of the receipt prevent the statute from operating, or, by some promise or agreement between Morrison and Buford, the statute has been waived.
It can require ho argument to show, that the transfer of any claim to the United States cannot give to-it any greater validity than it possessed in the hands of the assignor: If the character of the claim be so changed, as to exempt it from .the operations of the statute of limitations, after the transfer, such transfer cannot have the effect to take the claim out of the statute when it has run.
But it is contended, that as the receipt promises to account fot-the sum of ten thousand dollars, when called on, it was necessary for the defendant to show, that no demand had been made, or that five years had elapsed subsequent thereto and before the assignment.
In his plea the'defendant states, that , the demand and cause of action did not accrue within five years next before said assignment, &c. If a demand had been made so as to prevent the effect of the statute, it was incumbent on the plaintiffs to plead over and allege the fact. They have not done it, and this allegation of the plea stands uncontradiqted, and is consequently admitted to be true.
.The defendant in his plea sets out, that the loan of the money was obtained from Morrison, ter whom the payment was to be made, and represents the transaction as a private one. In the replication, the plaintiffs do not traverse this fact, but allege that the money belonged to the United States, ánd was advanced by Morrison, as an officer of the United States, to the defendant, as'an officer. .
On the sufficiency of the plea, and the insufficiency of the replication,' one of the', counsel in the defence rests the cause.
In the correct order of pleading, it is necessary that the facts of the plea should be traversed by the replication, unless matter in avoidance be set up. It is not sufficient that the facts alleged in the replication be inconsistent with those stated in the plea; an issue must be taken on the material allegations of the plea.
In the case under consideration, it was material in the defence, to show that the loan of this money was a private transaction, and such is the statement of the plea, substantially. This fact should have been traversed in the replication. It was not done, and consequently the replication is bad on demurrer.
The writing set out in the bill of exceptions, it is insisted, shows a waiver of the statute by Buford. This writing was produced after the decision of the court was given on the demurrer, and leave was then asked to withdraw the replication to the plea of the statute of limitations, for the purpose of pleading this covenant, of which, it was alleged that the attorney for the United States had no knowledge, until after the decision on the demurrer.' The court overruled the motion, upon the ground that the writing would, not be an avoidance of the statute, but afford only a substantive cause of action for a breach of its conditions.
The court, it is contended, in refusing leave to amend', decided the effect of this covenant, and that they erred in their construction of if..
This court has repeatedly decided, that. the exercise of the discretion of the court, below, in refusing or granting amendments of pleadings or motions for new trials,' affords no ground for a writ of error. In overruling the motion for leave tó withdraw the replication and file a new one, the court exercised its discretion, and the [eason assigned, as influencing that discretion, cannot affect the decision.
This cause came on to be heard on the transcript of the record from, the circuit court of the United States for the district of Kentucky, and was argued by counself on consideration whereof, it is considered, ordered and adjudged by this court, that the judgment of the said circuit court in this cause be, and the same is hereby affirmed.