The United States, Plaintiffs In Error v. Thomas Buford, Defendant In Error

• Citation: 3 Pet. 12,7 L.Ed. 585,28 U.S. 12
• Parties: THE UNITED STATES, PLAINTIFFS IN ERROR v. THOMAS BUFORD, DEFENDANT IN ERROR
• Decision Date: 01 January 1830
• Court: United States Supreme Court

28 U.S. 12

3 Pet. 12

7 L.Ed. 585

THE UNITED STATES, PLAINTIFFS IN ERROR v. THOMAS BUFORD, DEFENDANT IN ERROR.

January Term, 1830

ERROR to the circuit court of Kentucky.

The United States instituted an action of assumpsit in the circuit court of Kentucky, to recover the sum of ten thousand dollars from the defendant, which they alleged to have been received by him to their use. The claim of the United States arose under the following circumstances.

On the 21st December 1812, at Lexington, Kentucky, James Morrison, a deputy quarter master general of the army of the United States paid to the defendant in error, Thomas Buford, then a deputy commissary of the United States, the sum of ten thousand dollars, and took from Mr. Buford a receipt for the same, in the following words:

Lexington, 21st December 1822.

Received of James Morrison, deputy quarter master general, ten thousand dollars, for which sum I promise to account when called upon.

THOS. BUFORD, Deputy Commissary, U. S. A.

Upon the settlement of his account with the United States, Mr Morrison claimed a credit for the sum thus paid to Mr Buford, which credit was refused to him; and afterwards, on the 3d March 1823, congress passed an act 'for the relief of James Morrison,' by which the accounting officers of the treasury were authorised to allow to him in the settlement of his accounts, the sum so advanced to Mr Buford, 'provided that the said James Morrison shall first assign and transfer to the United States, all his right and claim to the moneys mentioned in a certain receipt given by the said Thomas Buford to the said James Morrison, bearing date the 21st day of December 1812,' with a proviso, that if James Morrison should not be found indebted to the United States the whole of the amount so to be assigned, the balance should be repaid to him.

On the 7th of March 1823, James Morrison made the following assignment to the United States, in compliance with the act of congress:- 'Now, I, James Morrison, in pursuance of the provisions of the said law, do hereby assign and transfer to the said United States, all my right and claim to the moneys mentioned in the said receipt. Witness my hand and seal, this 7th day of March 1823.

'JAMES MORRISON.'

Test. H. CLAY,

A. D. HARDIN.

Upon the execution of this assignment, and the surrender of the receipt, the following account was made out, and certified at the treasury of the United States.

Dr. Thomas Buford, late Deputy Commissary, in account with the U.S. Cr.

GENERAL ACCOUNT OF ARREARAGES.

To James Morrison, for amount By balance due U. States, $10,000

received from him, per

receipt 21st December 1812, for

which he is accountable, $10,000

--------

To balance per contra, $10,000

Treasury Department, 3d Auditor's Office, March 7th, 1823.

Stated by— R'D BURGESS.

Pursuant to the provisions of the act of congress, passed 3d March 1817, entitled an act to provide for the prompt settlement of public accounts, a transcript of the account so stated and settled was certified, for the purpose of maintaining a claim on Thomas Buford for the balance which thus appeared to be due to the United States.

In August 1823, the attorney of the United States filed a declaration in the suit, in the district court of Kentucky, for money had and received, which declaration set forth, 'that the defendant, on the 10th day of March 1823, was indebted to the United States in the sum of ten thousand dollars, for so much money before that time had and received as an officer of the United States to their use, as by the account of the said defendant with the said United States, duly settled, examined and adjusted at the treasury department, on the said 10th day of March 1823, and to the court shown, duly certified according to the act of congress of the United States, in such case made and provided, fully appears.'

To this declaration the defendant pleaded,

1. After oyer of the account; that the plaintiffs actio non, because 'the declaration and the matters and things therein contained are not good and sufficient in law to have and maintain the said action,' &c.

2. Because he does not owe the debt in the declaration mentioned and demanded, &c.

3. Because James Morrison, the assignor of the receipt and demand to the said plaintiffs, was, at the time of and before said assignment, and remained until the time of his death, indebted to him in a much larger sum of money than the said sum demanded, for money had and received by said Morrison, to the use and benefit of said defendant; for money before that time lent and advanced at his special instance and request; for money paid, laid out and expended, at his like special instance and request: and being so indebted, said Morrison assumed upon himself and promised to pay said defendant the aforesaid sum of money, whenever he should be thereunto afterwards requested; yet the said Morrison has not paid said defendant the aforesaid sum of money, or any part thereof; nor have the executors or administrators of said Morrison, since his death, or any one for him or them, paid said defendant said sum of money, or any part thereof, but the same remains wholly unpaid; which said sum of money, or so much thereof as is equal to the demand of said plaintiffs, the said defendant offers to set off and pleads as a set off against said plaintiffs' demand, &c.

4. Because the cause of action and demand set forth by the plaintiffs did not accrue within five years next before the impetration of the original writ in the cause.

To these several pleas the plaintiffs demurred, for insufficiency; and the demurrer being overruled, the United States replied, 'the matters and things contained in the third plea of the defendant are not good and sufficient in law to bar and preclude the United States from having and maintaining their action; and they further say that the matters and things contained in the fifth plea of the defendant of the statute of limitations are not good and sufficient in law to bar and preclude the plaintiffs from having their action, &c.

The court sustained the demurrer, and ordered that the third and fifth plea be overruled, and gave time to the defendant to put in other pleas.

And afterwards, at October term 1824 of the Court, the defendant pleaded actio non, because the account upon which the plaintiffs' suit is founded, was for money alleged to 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 $10,000, for which, by the terms of the transaction and the express 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 aforesaid, &c.

7. That on the 21st day of December 1812, this defendant received from a certain James Morrison, the sum of ten thousand dollars, and executed to him a receipt therefor, that is to say, in the commonwealth and district of Kentucky, and on the 7th day of March 1823, the said Morrison assigned by his certain writing, to which is subscribed his proper hand, all his right and claim to the money in the said receipt specified as aforesaid, and upon that receipt and assignment aforesaid, and without any other consideration, and without the consent and privity of the defendant, the account in the declaration mentioned was settled, examined and adjusted at the treasury department of the United States, to which settlement and adjustment this defendant 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.

8. Because he says that the assumpsit and demand of said plaintiff arose upon and by virtue of a claim which was held by virtue of one James Morrison for money by him advanced and loaned to said defendant on the 21st day of December 1812, and which claim and demand of said Morrison was, by virtue of an act of congress on the 7th day of March 1828, assigned and transferred to said plaintiffs. And the defendant in fact says, that the said cause of action did not accrue or arise within five years next before the suing out of the original writ in this cause, &c.

9. And because the claim and demand of said plaintiffs was derived by assignment and transfer from James Morrison, of a certain writing executed by the defendant to said Morrison, acknowledging the receipt of ten thousand dollars, by the defendant from Morrison, stipulating to account therefor to said Morrison under and by virtue of an act of congress, which assignment as aforesaid was made on the 7th day of March 1823, and for no other consideration whatever. And the defendant in fact says, that said Morrison, before and at the date of said assignment in the district aforesaid, was indebted to said defendant in a sum equal to the sum demanded by said plaintiff, to wit, the sum of eleven thousand dollars, for money by said defendant before that time loaned and advanced to the said Morrison, for money had and received by said Morrison to the use of said defendant, and for money by said defendant paid, laid out and expended for said Morrison, and all at the special instance and request of said Morrison, and being so indebted, he, said Morrison, in consideration thereof, then and there assumed upon himself, and promised said defendant to pay said sums of money, whenever he should be thereto afterwards requested, and although often requested has not paid the same, which said sum of money, said defendant is here willing, and offers to set off against ...