Elmore v. Grymes. 1 P. earliest period, we find the English courts in the exercise of this power, and whoever will examine the cases collected in Mr. Morgan's Treatise on the doctrine of new trials, vol. 3, Essays, will find what a very wide range has been taken by those courts in the application of that practice. Nor have the more modern cases manifested any inclination to retrace their steps. Its salutary effects are universally felt, and perhaps contribute as largely as any other cause to the rapid progress of their courts in disposing of their dockets. If there exists any case prior to that of Macbeath v. Haldimand, 1 Term Rep. 172, in which the right of the plaintiff to refuse to be nonsuited was recognized, I cannot recollect it; since in that case it would seem that in ordinary cases the right is recognized. But there is abundant proof that the British courts do assert the power to control the exercise of that right by the plaintiff when they think proper. In the cases of change of venue, on motion of plaintiffs, 2 Black. 1031, the right is disputed on the assumed ground that he undertakes to prove some material fact. Now, where can be the objection to applying the same reason to every case that goes to a jury? Does not a plaintiff in fact undertake the same thing whenever he troubles a court with his suit, and has a jury sworn to try his cause upon evidence? he is no longer subjected to amercement if he fails to recover, and the right to nonsuit him, where he fails to produce evidence that will justify a verdict, is but a reasonable substitute for the absolute penalty to which he was once subjected. But it is contended that an absurdity is produced, and an acknowledged right violated. Yet the alternative exhibits a more direct and obvious absurdity; since in the case of Macbeath v. Haldimand, and in every case of the kind, the court asserts a positive control over the consciences of the jury, by telling them "they are bound to find for the defendant." And the greater absurdity must henceforward be incurred, of swearing a jury in a cause, and requiring a verdict at the caprice of a plaintiff who produces not a tittle of evidence to maintain his issue. Nor is any right of the plaintiff taken from him if his rights be regarded in their just extent. He cannot claim a verdict of the jury if he does not produce evidence to sustain it, and it is only in that case that he is precluded from submitting his case to their consciences. When we consider what were the ancient penalties for a false verdict, before they were superseded by the introduction of new trials, it must appear just * and reasonable! *475 ] that the plaintiff should rather be exposed to the necessity of bringing a new suit, or moving for a new trial, than that the jury should be subjected to attaint at his will. And on the subject of fiction and legal absurdity, it is certainly too late at this day for our D'Wolf v. Rabaud. 1 P. courts of justice to be very fastidious on a consideration which has been so thoroughly set at naught by the action of ejectment, fine, and recovery, and sundry other matters of the kind, to which they have resorted for the purposes of substantial justice and public convenience. I must submit, I suppose, but I cannot do it without protesting against the right of forcing upon my circuit the practice of other circuits in this mode. By a rule of this court, it is unquestionably in the power of the court to do it. But until then, I can never know what is the practice of my own circuit, until I come here to learn it. 1 P. 476; 6 P. 598. JAMES D'WOLF, Junior, Plaintiff in Error, v. DAVID JACQUES RABAUD, JEAN PHILIPPE FREDERICK RABAUD, ALPHONSE MARC RABAUD, Aliens and Subjects of the King of France, And Andrew E. BelKNAP, a Citizen of the State of Massachusetts, Defendants in Error. 1 P. 476. Where A agreed to ship sugars to B, for account of C, by such vessel as C might designate, held, that C might empower B to designate the vessel. A circuit court of the United States cannot order a nonsuit against the will of the plaintiff. The question of citizenship constitutes no part of the issue upon the merits; it must be raised by a plea to the jurisdiction. A letter having been written to the defendant by a third person, requesting the defendant to ship sugars to the plaintiff, and the defendant having added to the letter the word "agreed," and signed his name— held, that parol evidence was admissible to prove that the plaintiff agreed to advance moneys to the third person on the faith of the shipment; that this agreement and the letter and the assent of the defendant were parts of one transaction; and the written paper was made for the purpose of being delivered to the plaintiff, and was so delivered; and this being proved, it was further held that the contract of the defendant was not within the statute of frauds of New York. THE case is stated in the opinion of the court. Ogden and Hall, for the plaintiff. Webster and King, contrà. [ * 496 ] * STORY, J., delivered the opinion of the court. Messrs. Rabaud, Brothers, and Co., of Marseilles, brought a suit in the circuit court of the southern district of New York, against 'James D'Wolf, jun., (the plaintiff in error,) to recover damages, for not shipping them 500 boxes of sugar, on account of one George D'Wolf, according to an agreement entered into by him with them. The declaration contained four counts, and in each of them the sub D'Wolf v. Rabaud. 1 P. stance of the contract stated is, that the defendant, in consideration that one Belknap, (one of the partners in the house of Rabaud, Brothers, and Co.,) would authorize George D'Wolf to draw on the plaintiffs for 100,000 francs, undertook and promised that he would ship for the account of George D'Wolf, on board such vessel as he (George D'Wolf) should direct, five hundred boxes of white Havana sugar, consigned to the plaintiffs, at Marseilles. The declaration then proceeds with the proper averments and breaches necessary to maintain the action. Upon the trial, under the general issue, the jury found a verdict for the plaintiffs, and judgment was given for them accordingly. The cause now comes before this court upon a writ of error and bill of exceptions taken at the trial. The bill of exceptions is voluminous, and contains, at large, the evidence admitted at the trial, as well as the charge of the learned judge who presided at the trial. It is unnecessary [497] to refer to that evidence, or to consider its nature, bearing, and extent, upon which so ample a comment has been made at the bar, except so far as it applies to some question of law decided by the court, to which an exception has been taken. The whole facts. were left open to the jury, and, so far as they were imperfect or inconclusive, the defendant has had the full opportunity of addressing his views to the jury, and they have found their verdict against him. In the progress of the trial, a letter of the 27th December, 1825, written by George D'Wolf to Belknap, was offered by the defendants in evidence, for the purpose of showing an authority from George D'Wolf to Belknap, to direct or name a vessel to the defendant, on board of which the sugars might be shipped. The defendant objected to its admission, and the objection was overruled. This constitutes the first ground of error, now insisted on by the defendant. We are of opinion that the letter was rightly admitted, for both of the reasons stated in the charge. It was evidence of such an authority; and the defendant made no objection to it at the time, on account of any insufficiency in this respect, but put his defence by his letter of the 5th of January, 1826, on an entirely distinct ground. After the evidence for the plaintiffs was closed, the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this court. A nonsuit may not be ordered by the court, upon the application of the defendant, and cannot, as we have had occasion to decide at the present term, be ordered in any case without the consent and acquiescence of the plaintiff. Elmore v. Grymes, ante, page 469. In the further progress of the trial, upon the examination of one Frederick G. Bull, a witness for the defendant, the counsel for the defendant offered to 57 VOL. VII. D'Wolf v. Rabaud. 1 P. prove, by Bull, that it was an express understanding and agreement between the defendant and George D'Wolf, at the time the letter of the 15th November, 1825, (which will be hereafter more particularly noticed,) was signed by the defendant, that the latter should furnish the defendant with the funds necessary for the purchase of the sugar, before the defendant would be under any obligation to ship the same. This testimony was rejected by the court, unless it should also appear that Belknap was a party thereto, or that the same was brought home to his knowledge. We can perceive no error in this decision. If the defendant had entered into the contract with the plaintiffs, stated in the declaration, and the private arrangement made between the defendant and George D'Wolf, constituted no part of that contract, and was unknown to them, it certainly ought not to prejudice their rights. It was res inter alios acta, and had no legal [498] *tendency, either to disprove the plaintiff's case or to exonerate the defendant from his liability. The other exceptions are exclusively confined to the charge given to the jury, upon the summing of the court upon points of law. The first objection was to the sufficiency of the evidence to establish the citizenship of Belknap, as averred in the declaration. This is now waived by the counsel, and, indeed, could not now be maintained, because it has been recently decided by this court, upon full consideration, that the question of such citizenship constitutes no part of the issue upon the merits, and must be brought forward by a proper plea in abatement, in an earlier stage of the cause. The great question upon the merits arises upon that part of the charge which relates to the agreement contained in the letter of the 15th of November, 1825, from George D'Wolf to the defendant, and the accompanying assent of the latter, with reference to the statute of frauds. That letter is in the following terms : Mr. JAMES D'WOLF, Jr. New York, November 15, 1823. Dear Sir: You will please ship for my account, on board such vessel as I shall direct, five hundred boxes white Havana sugar, consigned to Messrs. Rabaud, Brothers, and Co., Marseilles, and oblige your friend and obedient servant, (Signed) Agreed to, (Signed,) JAMES D' WOLF, Jr. GEORGE D'WOLF. Upon this part of the case, the charge was as follows: "It is said that this letter, under the statute of frauds, does not purport on its face to contain any binding contract on the part of the defendant, D'Wolf v. Rabaud. 1 P. and that the defects cannot be supplied by parol evidence. This objection, I think, cannot be sustained. The first question to be settled, and which is matter of fact for your determination, is, whether the arrangement between Belknap and George D'Wolf, as to the authority to draw on the house in Marseilles, on the shipment and consignment of five hundred boxes of sugar, and the undertaking of the defendant, were made and entered into at one and the same time, so as to form one entire transaction." The judge then proceeded to sum up the evidence on this point, and added: "The consideration for this undertaking was the authority given by Belknap to George D'Wolf, to draw on the plaintiffs for one hundred thousand francs. This consideration, it is true, although fully proved, is not expressed in the written contract. And, one question is, whether it can be supplied by parol evidence; and I think it may, if the undertaking of the defendant was entered into at *the same time [* 499 ] with that between Belknap and George D' Wolf, so as to form one entire transaction. The evidence does not in any manner contradict the written agreement, and is perfectly consistent with it; as between the plaintiffs and George D' Wolf the consideration might be clearly supplied by parol proof; and if the undertaking of the defendant was at the same time, it required no consideration from the plaintiffs to him. The consideration to George D'Wolf was sufficient to uphold and support the contract of the defendant." And he finally stated, if he was mistaken in this view of the evidence, “and the jury should be of opinion that the contract between Belknap and George D' Wolf was completed and unconnected with the engagement of the defendant before he undertook to make the shipment. and consignment, then the evidence was not sufficient to maintain the present action. It will then be a collateral undertaking made subsequent to the principal contract, and would require some other consideration than that which supported the principal contract." The question, then, so far as it was a question of fact, whether the defendant did enter into the asserted agreement with the plaintiffs, and whether it was a part of the original arrangement with George D'Wolf, and upon the original consideration moving from the plaintiffs, was before the jury, and they have found in the affirmative. The question of law remains, whether this was a case within the statute of frauds, so as to prevent parol evidence from being admissible, to charge the defendant. The statute of frauds of New York is a transcript, on this subject, of the statute of 29th of Charles II. c. 3. It declares "that no action shall be brought to charge a defendant on a special promise for the debt, default, or miscarriage of another, unless the agreement, or |