THE UNITED STATES OF AMERICA, FOR THE USE OF JOHN B. SANBORN AND CHARLES KING, vs. WILLIAM J. DONOHUE, HARRIET DONOHUE, AND FRANCIS H. FINLEY

THE UNITED STATES OF AMERICA, FOR THE USE OF JOHN B. SANBORN AND CHARLES KING, vs. WILLIAM J. DONOHUE, HARRIET DONOHUE, AND FRANCIS H. FINLEY. At Law. — No. 13376. A receiver was appointed to collect certain rents, and the condition of his bond was that if he “shall well and faithfully, in accordance with law, perform the trust named in this bond,” then the obligation was to be void: Held, that the bond covered a default in not paying over the rent collected when ordered to do so by the court. STATEMENT OE THE CASE. This was an action on a receiver’s bond given by William J. Donohue and his sureties, Harriet Donohue and Francis H. Finley, and dated on the 8th day of January, 1873. The condition of the bond was in the following language': “Whereas the above-named William J. Donohue hath been duly appointed by the supreme court of the District of Columbia, sitting as a court of equity, as receiver to collect the rent of the property in the cause of Sanborn & King vs. O’Donohue, No. 2748: Now, the condition of the above obligation is such, that if the above-bounden William J. Donohue do and shall well and faithfully, in accordance with law, perform the trusts named in this bond, then the above obligation to be void; it is otherwise- to be and remain in full force and virtue.” The declaration describes the bond according to its legal effect, and after stating the fact that the said William J. Donohue, as such receiver, collected rents to the amount of $1,160, proceeds to allege the breach of said condition, as follows: “And afterward, to wit, on the 14th day of July, 1874, the said court passed a decree in the said cause No. 2748, in which the said William J. Donohue was ordered by the said court to pay into court the money so received by him, as such receiver, on or before the first day of August, 1874, and that the said money be thereupon paid over to the said San-born & King; but that the said William J. Donohue did not pay the. said money nor any part thereof into court, and has hitherto refused, and still refuses, to pay the same or any part of said money into court, though often thereunto requested, but has paid $25 for repairs, &c., and $100 of said money to the attorney for the said Sanborn" & King, and the plaintiffs claim the balance, to wit, $1,035, and interest thereon from the 15th of July, 1874, and costs of this suit.” The defendants, after oyer of the bond and its condition, demur to the declaration on the grounds— 1st- Because the said declaration does not set forth or allege any breach of the said writing obligatory o r the condition thereof, above set forth. 2d. Because there is a variance between the condition of said writing -obligatory as set forth in said declaration, and the writing obligatory and the true condition thereof, as set forth above. The case is now before the general term on the decision of the court below overruling the demurrer. M. Thompson for Sanborn & King: The declaration and bond both show that Donohue was ■appointed receiver to collect the rent. The condition of the bond is that he shall well and faithfully, in accordance with law, perform the trusts named in this bond.” The declaration shows, and the demurrer admits, that he has executed one of the trusts named in the bond, to wit, the collection of the rent.- The other trust reposed in him in and by the said bond, as such receiver, is, that he shall apply this money under the direction of the court, and this the declaration shows he has not done, and this is the breach of the condition shown in the declaration. 2 Story’s Eq. Jur., sec. 829; 3 Zabr., 98 ; Alexander’s Md. Ch. Pr., 95; 14 U. S. Dig., 93. If the condition of the bond was not that set forth in the declaration, then what was the condition ? Did he receive the rent upon condition that he should appropriate it to his own use, or did he receive it in trust for his own exclusive use, &c. ? Does Donohue “ well and faithfully, in accordance with law, perform the trusts” reposed in him in and by said bond by collecting the rent and appropriating it to his own use, and refusing to pay it into court as ordered by the court % Was he appointed receiver for the benefit and on behalf of the parties in interest or for himself 1 There is no material, variation between the condition as set forth in the declaration and that in the bond, and the demurrants do not say that there is material variation. It is not necessary that the declaration should set forth the condition of the bond to the-letter. It is enough that the substance and legal and equitable effect of the condition are set forth. Stephen on PL, 86 ; 1 Chitty’s PL, page 305, et seq. Qui hærit in litera, hærit in cortice. It is true that the condition-clause of the bond does not contain all the words which the declaration would seem to. say it does, but the declaration points to the bond' with unerring certainty, and sets forth the circumstances, objects, purposes, and conditions upon which it was given beyond question, and sets forth the substance and legal and equitable effect of the bond and condition, and only supplies those words that law, equity, and reason supply and superadd in order to effectuate the true intendment of the instrument and the parties thereto. 3 Modern R., 227; 19 Com. Dig., 510-512. The condition of the bond, u well and faithfully, in accordance with law, perform the trusts,” &o., means honesty on the part of Donohue and payment by him of the money into court in obedience to the order of the court. 1 Pet., 46 y 3 Cr. C. C., 218. The bond is not void for uncertainty, nor is there any pretense that it is, and the whole scheme, scope, object, and purpose of the bond was to secure the rents to the party who should ultimately establish his right to them, and this is too plain to admit of question,- and if the demurrer is sustained that object will be defeated. “ Where the deed is not described according to its tenor, but according to its legal effect, if the deed agrees in legal effect with the allegation, any verbal discrepancy is not a variance.” 1 Green-leaf on Evidence, (Redfield’s edition,) 81. Evans and Garnett for defendant Finley: Moore & Newman for William J. and Harriet Donohue: The declaration sets forth the fact that the defendant Donohue, has performed the only trust mentioned in the said bond, which was to colled the rents; and the securities of the defendant Donohue only bound themselves that they would be responsible in case the defendant Donohue failed to fulfill the trusts named in the bond. This being a suit at law, all matter in the declaration, save statement of bond and allegation of the breach of the condition thereof, is surplusage, and not properly before the court. Nor can the court go behind the bond into the proceedings of the equity cause and discover what bond ought to have been made, and hold these defendants bound by a specialty which they never executed, and which has no existence except in the declaration in this cause. There is a 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 a variance is that done by the defendants in this cause. Gould’s Pleading, ch. 5, sec. 99. If the evidence differ from the statement, it is a fatal variance. 1 Chitty’s PL, sec. 305, et seg. In reciting the condition of the bond the declaration contains the following sentence: Perform the trusts reposed in him as such receiver} and colled and safely keep the said rents subject to the order of the court. No such words occur in the condition of the true bond, and the bond described by the declaration is an entirely different bond from that executed by the defendants in this cause. Bee Gould’s Pleading, ch. 5, sec. 97. [MAJORITY — Oartter, Oh. J.,] Oartter, Oh. J., delivered the opinion of the court: It is contended, on behalf of the demurrer, that Donohue,, as a receiver, was to collect the rent of the property in the cause mentioned in the condition of the bond, and that the sureties were only responsible for the receiver in that distinct and particular duty. In our judgment this is too narrow a view of their obligation. Donohue and his sureties undertook that he “ shall well and faithfully, in accordance with the law, perform the trusts named in the bond.” We cannot read this as if he were to put the money in his pocket. The true construction of the bond is that he is to take the money and pay it over, under the order of the court, in his character of receiver. The performance of his duty as receiver was not only to collect, but to obey the direction of the court which had appointed him, especially in regard to the funds which might come to his hands, and his function was to pay over as well as to receive.. There would be little or no necessity for a bond, unless it were to prevent loss and misconduct after he had collected the rent, and the sureties, who knew he was a receiver, will be presumed to have signed the bond with reference to a duty so obvious and necessary. We all think that the bond is stated substantially, according to its legal effect, in the declaration, and that the judgment below must be' affirmed.