National Republican., 1875-05-27
THE COURTS.
District Supreme Court-Geueral Ter


AHthe justices except Judge Humph-eys,who
is holding the the Cireutt Court,sat in bGHc yes
terray:
ing that counsel fees are no mesHe pcOfts,
affirmed.
Hoffman VS.. Jones. Decree below affirmed.
Eurns vs.WhLttlesey et al
This suit is brought TO declare lien upon real
estate for work done and material furnished by
plaintiff for defendant, Whittesey, under express
contract
The contract was made August 2l, 1857, and by
its terms the work was Ito be hntshr by the 3lse
Of January, 1865" The price was to be Sl,750,
payable $500 'on the frst day of November next
ensuing, OIL condition that the whole building is
roof. in by that time;'' the balance on time
after completion OF the house. The defendant,
Wbittlesey' was ito construct the cellar, found
alton, and chimney; to furnish hardware, aud do
all the painting and glazing at his own expense"
The plaintiff contend that the defendants tes-
timCDy demonstrates that Burns is not entitled
to anything. The amount OF lum Der sent to the
building by Clark is no criterion, because we
approve that Burns sold some Of it aiter 1t
reached the building, removed some Of it to other
buildings he was constructing, and most oft was
exposed in a vacant lot adjoining public street
to lbe depreciation OF those disposed to take.
The case was argued by Mr. morsell for plaiu-
tiff, and Mr.. Hume for defendants. The ludg-
neIt below giving Burns 800 was affirmed.
The United States OF America, for tlo Use of
.,y.p ~. Sanhccc-1 and Charles King, plaintiffs,
VS.. Wili'am J. DOnonu5 et a., defendants. The
psint fis sue the defendants for that. on the 7th
day of January, A. ID. 1873, William J. DOnOhue
5 by the Supreme Court Of the District Of Co
lVmha, aBpOin ed receiver TO collect and receive
the rents Of the property mentioned in the pro-
ceedings in q cause then depending in said court,
and numbered 274s IN equity, in wbioh the said
SanboTn King were plaintiffs aud Patrick u
DonOhue ct al. were defendants; it was at the
same time further Of tered by the same court
that, before entering upon his duties as such re-
ceive7. the said William J. DOnohue should file
bis bond with sstsfa:t story surety, to be approved
By the court in the penal sum of two thousand
dollars, conditioned for the faithful performance
OF his duties such receiver; and on the Sth day
OF January, a, ID, 1873, William J. DOn0hue MED
his bond, with Harriet DonObue and Francis H.
Finley as suTeties on said bond, which bond was
approved: and that he afterwards committed a
breach Of the conditions OF the bond.
The defendants, by their attorneys, came and
prayed oyer Of the writing obligatory Aforesaid,
and the conditions thereof mentioned in the dec
laratiOn. Which being read and heard, the said
defendants say that the declaration is bad in sub
stance. The grounds Of demurrer are:
| LIST. Because the said declaration does not set
| forth or suege auy breach of the sa!t writing
| obligatory, or the condition thereof above set
I'd. Because there is a variance between the
eondit on of said writing obligatory, as set forth
in said declaration ana the writing obligatory
and the true condition thereof, set forth above.
| The defendants say the declaration purports to
set out the whole bond, not only the penal portion
| hut the condition we'll, thus making the allie
| cation Of a breach Of the condition part OF the
| declaration.
| On over the bond being set forth shows on its
| face that whereas the above named Wm. J.
| DOuOhue, hath been duly appointed by the Su-
| preme Court of the District Of Columbia sitting
as of equity, receiver TO collect the rent
of the property in the cause OF Sanborn and ktng
| ODonOhue. Now, the cOnditisn OF the above
| obligation is such that If the above bOunden Wm.
| J. DCnOhue do and shall we'll and faithfully, in
| accordance with law, perform the trusts named
| in this bond, then ." etc.
Now, the declaration sets forth the fact that the
| defendant DOnOhue has performed the only trust
| mentioned in the said bond, which was to collect
| the rents; and the securities of the defendant
| DOnOhus only bound themselves that they would
| be responsible IN case the defendant DonOhue
fsilsd to fulfill the trusts named in the bond This
1nur oil aaNF In hn hnal
| rave statement of bond ana allegation Of the
| breach Of the condition thereof, is surplusaRe,
and not properly beiore tne court. NOT can tne ~,
| the equity cause, and discover what bond ought
| to have been made, and hold these defendants
| bound by speciality which they never executed,
and which has no existence except in the declara.
| D There is most material variance between
the bond as stated in the declaration and the true
bond as set forth on oyer, and the proper mode OF
taking exception for such q variance IS that done
| by the defendants in this cause.
| declaration and bond both show that DOnohue
| was appointed receiver to collect the rent; The
condition OF the bond is that he "shall we'll aud
| faithfully in accordance with law, perform the
| trusts named in this bond" The declaration
| shows, and the demurrer admits, that he mas ex'
| ecuted one Of the trusts named in the bond, 70
| wit: the collection of the rent. The other trust
! TepOsed in him, in and by the said bond. as such
the dire estion Of the court and this the GecIara
tiOn shows be has not DONE and this is the breach
| of the condition shown In the declaration.
| The court decided to overrule the demurrer
| Adjourned.
Circuit Court-Mr. Justice Humphreys.
This court was engaged as follows yesterday:
| Mccoy vs.. Martin Graham: Judgment con
| fessed.
| Wizard VS.. Hayes. Judgment set aside.
| Wickerson VS.. 0dorless EXcsyating Company
Action for horse killed by runaway team. Yer
| dict for defendant
| Lewis Hull VS.. Yost. Case not concluced.
CASES TO-DAY.
The following cases are assigned for to-day
Nos. I89, li2 143, IA, 145, 14e, 147 and l4s. Ad
| JOurned.
Equity Court-Judge Wylis.
This court was engaged as follows yester lay
CLARK, trustee, vs.. Eaton. Order dtschargine
restraining order and oVerruling application fol
| a reeesveT.
| EsIin vs. Fletcher. Order diseharging restrain
| ing order and denying Injunction.
Dyer vs. Stewart Order for anal rattheatior
| Of trustees sale.
Creeey VS.. WolHey. Order Of reference to su
| disOr TO complete audit.
Suit vs. Allen. Order for conditional ratifica
tion Of trustees sale. Adjourned.