Lenox's Executors v. Gorman

5 D.C. 531

• Court: U.S. Circuit Court for the District of District of Columbia
• Decided: November 15, 1838
• Status: Published

Opinion

Cranch, C. J.,

doubting whether the plaintiffs ought not to have demurred ; but inclining to think that the issue, whether Lenox was indebted to Gorman at the time of Lenox’s judgment for the rent due by Mrs. Arguelles, was an immaterial issue, and, therefore, no evidence should be permitted to be given upon it. Besides, the evidence was offered for the purpose of showing that no rent arrear w7as actually due from Mrs. Arguelles, as charged in the avowry, in the action of replevin, and found by the jury in that case.

The defendants prayed the Court to instruct the jury, that the plaintiffs were not entitled to a verdict in this case, for the amount of the rent arrear found by the jury in the action of replevin.

But the Court refused to give the instruction.

The defendants took their bills of exceptions.

Verdict for the plaintiff, $1,088.25.

Messrs. Brent & Brent, for the plaintiffs; Messrs. Key and Hobcm, for the defendants.

The defendant’s counsel moved in arrest of judgment:

1. “Because the plaintiffs are not entitled to a judgment on the verdict for the amount thereof; it being the amount of rent arrear found by the former jury in the former record ; and there being no breach in the declaration stating that as the plaintiff’s damage.”

2. “Because the plaintiffs are not entitled to judgment on the demurrer for any thing but the damages and costs stated in the declaration as the breach of the condition of the bond, for which this action is brought.”

3. “Because the plaintiffs, under the breaches set out in their declaration, are not entitled to the amount of rent in arrear, as found in the record given in evidence, but only to the damages and costs stated in the former record ; neither on the verdict now rendered nor on the demurrer.”

4. “Because the Court cannot ascertain the damages on the demurrer; but the same should have been done by a jury.”

But the CouRT overruled the motion; and rendered judgment for the penalty of the bond and $3,000 damages; the said debt and damages to be released on the payment of $1,088.25 and costs.