93 FEDERAL REPORTER.
148, 56 Fed. 810, and 12 U. S. App. 490, 495; Railway 00. v. Needham, 11 O. O. A. 56, 63 Fed. 107, and 27 U. S. App. 227, 237. , The conclusion at which we have arrived renders it llnnecessary to consider th(J other assignments of error in this case. We may remark, for the guidance of the court below in the subsequent trial of this' that the evidence that some ore was taken' from the La Salle m'fnebysome unknown person at some time after the commencementdHbiS $uifdbesnot appear to us to be competent evidence of the evil intent of the plaintiff in error in committing the trespass charged iri the complaint. .' ' There wasno'error, in our opinion, in refusing to instruct the jury to dedfict fJ;'om the value of the ore the expense of running the cross· cuts or tM'turinelin order to reach it. The judgment is reversed, and the case is rematlded to the court below with instructions to grant a trial.
UNITED STATES v. DAVENPORT et aI.
(Circuit Rouft, ,D. ?onnectlcut. March 28, 1899.)
OFFICElRS-.AC';l'ION 'AGAINST BoNnSMEN..:....PLEADING.
" , ' Whllre, a complaint agajIist the bondsmen of a public officer for over· , charge' and, unlliwful expenditure sets out fully the Items thereof, a vel" ments as to an adjustment Of his ,accounts by his official superior, whereby found due, and a reference to the account as stated a by SuCh superior, and his reports In relation thereto, on file in court, will ,, ' ; be stricken out. ."
'Actidti' by the United States against Theodore Davenport and oth· Defendants move to strike out pal,'t of the: complaint. , O. W. 06m,stock, for 'J;I.St()4dard, focI,' defendants.
I ' ,..I." , 1
"TOWNSEND, 'District Jndge. This, is' an action brought by the United to recover $5,000, of one Tp.eodore Davenport, on account of breaches of duty, .by him of post-office buildings and ,disbursing clerk of United ,States, The breaches alleged consisted in unlilwfulexpens arid overchargel'l for salaries; fuel, furniture, lS painting, and' rdiseeU:1n'eous'items. ParagraphS 12 and 13 of the eornpIlii'nt as follows: '
:,,;',ii2(The siiid Theddol'e DavenPort did,durlng the term Of his !;llti4 office as superintendent of buildIngs and disbursing: clerk, ;tectHve fr@In 'the' plaintiff, and did oVeTchjU'ge, and unlawfully, and without Rutllority Or .right" and in Violation, of the said obligatory, and the eon.ditio ti.lereof', ....ns set.. for,tb., .in paralil:J;ap.h Qne.. of .thIs complaint; of the Inoneys .. .Qq.he plaintiff, expend, overcharge, withhold, and unlaWfUlly keep and retain ftdrti the p1aintiff,"'ori account of sale b·f old material, in '1891, $24, aJldon acco'i1tltof miscellaneous expenditures and Items prior to the sixth day of March. in the year; 1893,$34, as by tllereportEi of.. the first COlllPtroUer Of the treasury numbers 300,141, ,65,438, 65,523,65,524,,65,471,65,302, 65,503; 65,521, l,81W2> 00,969, wllfclJ. aI:e filed in court with this complaint, and made' a part thereof, . It fu'lly'appears;sald sumsamouilting, in aU, to. $3,810.5li·
"(13) After· the expiration of the term of office of the defendant Theodore of this action, the accounts of the Davenport, and prior to the e: e Davenport, as such departmental buildings and disbursing clerk, adJusted according to law'by the fir:;;t comptroller of the treasury, and the said comptroller, as on said reports mentioned .in paragraph 12 of this complaint and fiH"!d hereWith it appears, found and reported a balance due from the defendant '.rheodore Davenport to the plaintiff in the said sum of $3,810.51."
Tile defendants m'ove to strike out that portion of paragraph 12 which states, "as by the reports of the first comptroller- of the treas65,503, ury Ilumber-s 300,141, 65,438, 65,523, 65,524, 65,471, 66,969, which are filed in court with this complaint, and made a part thereof, it fully appears," and all of paragraph 13, and the alleged repor-ts referred to therein, because the allegations tent, irrelevant, immaterial, and hearsay, and therein are incomp contain no statement of a relevant or issuable fact; and,' further, to strike out the reference to said alleged reports in paragraph 14, and the exhibit containing the same filed as part of said complaint; and they also specify a lar-ge number of letters and papers therein which they wish to have stricken out. The papers, taken asa whole, comprise a recommendation by the comptroller to the postmaster general that there be an investigation of Davenport's accounts; a mass of papers, accounts, and correspondence; a report by the register to the l:Omptroller indicating a balance due of $3,810.51; and a: certificate of the acting register that said papers contain the final adjustment of the account of said Davenport. The items making up said total amount of $3,810.51 are each and all contained in paragraphs 5, 6, 7, 8, 9, 10, 11, and the first part of paragraph 12, of the complaint: The object of said complaint is to inform the defendants of the charges against them, and to show what matters are disposed of by final judgment. It is clear that the collection of papers contained in this exhibit, taken as a whole, are not a proper part of the complaint. The question of their-admissibility in evidence has been much discussed in the briefs of counsel. While the character- of many of them is such that it is difficult to conceive on what theory they could be offered in evidence, it is unnecessary to pass upon that question in disposing of this illOtion. The motion to strike out is granted.
HOFF:VIANN et al. v. MAYATJD et ali (Circuit Court of Appeals, Seventh Circuit. No. 539.
1. ApPEAL-RECOUD-REVIEW-ExOLUBION OF EVIDENCE.
March 28, 1899.)
The rule, in force When this case was tried, that the substance of excluded answers must appear in the record, did not apply where the witness testified in person; and the exclusion of an answer will be deemed error or not, according as the question upon its face, if proper in, form, mayor may not clearly admit of an answer favorable to the, party in whose favor it is propounded.
In an action a guaranty the guarantors cannot state their individual understanding whether an acceptance of the guaranty was conditional. and whether an extension of credit had been given in pursuance thereof.