Buddicum v. Kirk

• Citation: 7 U.S. 293,2 L.Ed. 444,3 Cranch 293
• Parties: BUDDICUM v. KIRK
• Decision Date: 01 February 1806
• Court: U.S. Supreme Court

7 U.S. 293

3 Cranch 293

2 L.Ed. 444

BUDDICUM v. KIRK.

February Term, 1806

ERROR to the circuit court of the district of Columbia, in an action of debt against the defendant, as heir at law of the obligor, of a bond dated the 20th of September, 1774, conditioned to pay 994l. 3s. 5d. Virginia currency, in equal instalments, at six and twelve months from the date of the bond.

The defendant being an infant, pleaded by Archibald M'Lain, his guardian.

1. Payment; to which there was a general replication and issue.

2. That after the execution of the bond, viz. on the ___ day of _____ 1784, at, &c. it was accorded and agreed, between the plaintiff and the said James Kirk, (the obligor) in his life-time, that the said James Kirk should assign, and make over to the plaintiff, all the balances of money due to the said James Kirk, and one Josiah Moffett, arising from a store kept by them in partnership, in the town of Leesburgh, in discharge and satisfaction of the said bond; and that the said James Kirk did afterwards, on the day and year last mentioned, at the town aforesaid, pursuant to the said accord and agreement, assign, and make over to the plaintiff, all the aforesaid balances, and the plaintiff did then and there receive the said assignment and transfer of the said balances, in satisfaction for the said bond, and this he is ready to verify, &c.

This plea was adjudged bad on general demurrer.

3. 'That after the execution of the said writing obligatory, the plaintiff, by his certain deed of release, with his seal sealed, which said deed is lost and destroyed by time and accident, did release and discharge the said James, in his life-time, and his heirs, of and from the payment of the said writing obligatory, that is to say, on the ___ day of _____ in the year 1784, at the county aforesaid, and this is ready to verify.'

To which plea, there was a general replication and issue.

Upon the trial, the jury found both the issues of fact for the defendant, and the plaintiff took two bills of exceptions.

1. The first stated, that the defendant offered in evidence, the deposition of Patrick Cavan, tending to prove, that wheat, to the amount of 166l. 8s. 10d. had been delivered by the obligor to the plaintiff, on account of the bond, and sundry debts due to Kirk and Moffett, had been assigned to the plaintiff in full discharge of the bond; and that the plaintiff had indulged some of the debtors until the debts were barred by the statute of limitations. That notice was given to the plaintiff's attorney, that the deposition would be taken on the 8th of August, 1801, and if not taken in one day, that the commissioners would adjourn from day to day until it should be finished, and that he agreed that it might be taken on that day, whether he attended or not; but did not assent or object to its being taken on any other day. That the commissioners, to whom the dedimus was directed, met on the 8th of August, 1801, and adjourned to Monday the 10th, and from the 10th to the 11th, from the 11th to the 12th, and from the 12th to the 19th, when the deposition was taken. That the plaintiff's attorney did not attend on the 8th, or any of the other days, and had no notice of the several...