5 D.C. 531 (C.C.D.C. 1838), 8246, Lenox's Ex'rs v. Gorman

• Docket Nº: 8246[1]
• Citation: 5 D.C. 531, 15 F.Cas. 314
• Opinion Judge: CRANCH, Chief Judge.
• Party Name: LENOX v. GORMAN et al.
• Attorney: Brent & Brent, for plaintiffs. Key & Hoban, for defendants.

Page 531

5 D.C. 531 (C.C.D.C. 1838)

15 F.Cas. 314

LENOX

v.

GORMAN et al.

No. 8246 ^[1]

Circuit Court, District of Columbia.

Nov. 1838. ^[2]

Debt on replevin-bond in the penalty of $3,400, given by J. B. Gorman upon obtaining a writ of replevin, in his own name, for goods distrained by Peter Lenox for rent due by Mrs. Arguelles, upon which writ judgment was rendered for Mr. Lenox, in 1837, upon the pleas of non tenuit, non dimisit, and no rent arrear; the jury having found the issues for the landlord, and one cent damages, and that the rent arrear was $978.30, and the value of the goods distrained $1,198. The declaration upon the replevin-bond set forth the condition, and alleged, as breaches thereof, that the said Gorman did not prosecute his writ of replevin with effect; and did not return the goods, nor pay the charges and costs. The defendants pleaded ‘ that the said J. B. Gorman hath well and truly observed, performed, fulfilled, and kept, all and singular the matters and things, in the condition of the said writing obligatory mentioned and contained, which he, according to the force, form, and effect, of the same condition, ought to have observed, performed, fulfilled, and kept.’ To this plea the plaintiffs demurred generally.

The defendants also pleaded, by way of set-off, that at the time of the alleged breaches of the condition of the bond, the said Peter Lenox, in his lifetime, was indebted to the said Gorman, in the sum of $1,238.96, for matters properly chargeable in account, and for goods sold and delivered, and for money lent and advanced, all which still remains due; and that he is willing to set off as much thereof as the damages for the said supposed breaches may amount to. To this plea the plaintiffs replied, ‘ that the said Peter Lenox, in his lifetime, did not undertake and promise in any manner and form as the defendants have above pleaded, and of this they put themselves upon the country,’ & c. They also replied the statute of limitations.

Brent & Brent, for plaintiffs.

Key & Hoban, for defendants.

THE COURT.

Upon the demurrer to the plea of general performance THE COURT (Thruston, Circuit Judge, absent,) rendered a peremptory judgment for the debt in the declaration mentioned, to be released on the payment of the rent arrear, with interest and costs. Upon the trial of the issues upon the set-off, the court refused to permit evidence...