He is entitled to a certified copy of the order of efit of .the the coprt as tpeevidence of his authority to proc\lre the requisite books, which forms par.t, of the papers which vouch for the proper outlay made by him i,n this particular, and he is required to file with the clerk a duplicate of all vouchers which accollfpany his account, and hence the need for duplicate copies of the order made. The total sum sued for is $714.40. Under the conclusion reached as herein announced, the clerk is entitled to $666.90, the remainder of the , sum total being disallowed; and judgment will therefore be entered for said amount of $666.90.
", J, .
. , ' ',
Co. et 01.
:i-, :" !' j ;,
0o-urt, D. M:ln'7,le8Qto"
.Dt17!sion. December 00"
,Wherethe sheriff, in taking a repfeYin bond under ,the Illino!s;statllte, adopts the valuation of the propel'tyas alleged in the affidavit ,and writ, both Jihe principal an'd'his snreties:are bound thereby, and, in an actioJl, on the are estopped to , allllg.ea less v a l u e . " ' , The fact thlJ.t the, bond contains no express recital of value is immaterial. as the statuterequiLies a bond in double the value of tbe property. anu the value must be in to fix the amount of the obligation.
. ,',' .
RII:PLBVIN-AoTION ON BOND-VALUATION OF PROPERTy"';';l!JSTOPPEL.'
,At 4,ctioo by the Vulcan Iron-Works against the Steam Snow.now COInpany and Oommodore P. Jones, upon a xeplevin bond. Heard on motion for a new trial. . Denied... . J(ei0" &:. Fctirchiid, :for plaintiff. ,. , Hunt&: MO"1'1'f.ll, Hart &: Brewer, John D. Smith, and Victw Linley, for defendantll.
NELSON, J.There isa singie question only presented for considerationonthis motion for a new trial, and that is whether, in an action brought on the replevin bond, the principal and sureties are bound by fixed in the affidavit and writ and bond taken by the sheriff the under the statute. of Illinois before the property could be seized. The weight of authority would seem to decide they are. In some states it is'aaiQ,thf,tt in thE;l original suit of replevin, when. the value of the property is involved, the plaintiff is not concluded by the value alleged in affidavit. Oobbey, Repl. § 996., p. 558. .;However it may be in such a case, 1 think the Maiu13 and Massachustltts authorities cited with approval by the United States supreme court (Ice Co. v. Webster, 125 U. S. 426,8 Sup. Ot. Rep. 947) and the Indiana supreme court (Wiseman v. Lyn1j,:,3.9 Ind. 259) lay down the true rule, thatthey are. bound by the valuefb:ed. in the writ or bond. Such Ii. rule, if law, is in accordance with justice and reason.. The allegation of value in the affidavit of the plaintiff is solemnly made and sworn to. The writ is under itll· control.
VULCAN IRON-WORKS V.CYCLONE STEAM SNOW-PLOW
It was placed in the sheriff's hands by its procurement. The issuance and service was caused 'by it as the actor; and the sheriff, in every instance, acted for the company. The bond of the plaintiff and sureties taken by the sheriff, in double the value Of the property fixed by the plaintiff, is a judici!).l admission and a conclusive presumption of law. See 2Sedgw, Dam. (7th Ed.) p. 431. To hold the plaintiff and his srireties bound thereby is a rule of protection for the general good. The Same principle is applied, in England. Middleton v. Bryan, 3 Maule & S. 155.. The Illinois statutEl did not require the plaintiff. in his affidato fix a the property., Still he did So. The sheriff. was not compelled to take a bond in double the value alleged by the plainduty under the tiff before he executed the writ; yet, in performing statute,he appears to have taken the plaintiff's 'estimate under oath of the vallie of the property. To permitlhe principal and sureties, fendants in'this suit, on their bond, who have solemnly fixedtM value. to introduce evidence tending to show that the'va1ue of the property was les&' tbanthey placed' it when the sheriff 'sei'Zed it, and tc? show that the plaintiff in this suit has not been injured by the wrohgfultlik. ing, and that the property is worthless, would enable the principal and sutetiestomsllme a position now in reference to the property inconsistent with that occupied by then) when the writ issued and the bond was taken." There is no hardship in holding the plaintiff to the value fixed in his writ, and ,the sureties in this case have 'no equities greater than the principal. See Huggej01'd v. 11 Pick. 222; Cobbey; Rep!. § 1380,and,cases cited. It, is stated by counsel that there are few cases reported upon this questi0n. Undonbtedly true, for upon ,a forfeiture of a bond' the defenses are :Iimited"and a plea or answer is rarely interposed. A demurrer to the declaration or complaint is sometimes interposed, But it issnid that there is no recital of value in the bond. The statute requires, that the plaintiff, or. some one else on his behalf, shall give:1o the sheriff, etc., a bond with sufficient security in double the value of the property about to be replevied. ThEi plaintiff prepares the bond required by the statute, and in order to comply. therewith estimates ,t)\8 value, and gives a bond in double the amount thereof. Such act estops the principal and sureties from denying the truth of the admission. The point argued is more refined and technical than sound. I find no error in excluding the testimony, and the motion fora new trial is denied.
. l '
FEDEBAL REPORTER, voL 48.
,SoLDIER. Rev. St, U,Si '$5'4,787,4788, provide that certain ex-llbldiel'8;sailors. etc., shall be entitled to frol'l1 the :war or a money commutation therilfC?r,frQltI thetime·of their appUcati,on therefor,and "at the expiration of 'every five yearft thereafter."· . Act Congo ;Mareh '8; 1891\'amended the. provision by for."five years;". HeW,t""t.tlle l/ol'l1endment Wit!! not retrospectivll. 80 as to entItle a peTson who had been commutation mOlley .at inteffal& of :Il.veyears to baek pay equiValent to the same at three-year in,!'lIrvals, ..:: .: . .
. R. M. . M. defendllnt.
by Ben'ryD. Fuller to from the United moneyJor artificia,l .limbs, under: A(jt Cong. March demurrer to the petition. Demurrer sustained. plaJIltiff· Dist. Atty., D.O. Dram, Asst. Dist. Atty., for " . , .,
'\' SHmA8,;r: !J1qe petition herein filed avers that the plaintiff, during the war of the Rebellion, was in the service of the United States, as a tnemberof COmpany F,t,venty-eighth tegiment.O£, Iowa infantry, and that the, line of his duty ,he iwasseverelywounded, losing an arlh anu foot;.. thllt, under the' provisions of the acts:of cOllwess of 1868 and 1870, he became entitled to receive artificial limbs as therein proViided, or to com:mute the same into money payments at the rate of $75 for a leg,and $50 [or an arm; that on,August 29,1870, he made hisapif>lication for the benefit of the act, electing to take the money payments instead of the:artificiallimbs,and has received five payments of $125, beginning wit,h,the date named; that by, the actof col1WOess of Maroh 3, 1891:, the'period of,five yearshamed in the originalacts has been changed to three and that thereby .the plaintiff has become entitled to a restatement ofhia.claim .for commutations, and is:now entitled to demand the' sum ;o£'.$l25 .follevery period onthree years, beginning with the date alhis,application, to-wit, August29,l:187:@jlinstead of for the period of D:\7b'YtlsrsJ, A demurrer is interposed to the petition. whereby is t.he·:questionwhetherthe act r of'MarchS,1891; is to be:construed to be retrbepective imitsoperati0n:,so,that parties, situated as is the plaintiff, are entitled to now claim from the United States the sums that would have been payable to them had the original act been the same as the act of March 3, 1891. Under the statutes in force previous to· March 3, 1891, the plaintiff was enti1led to receive an artificial leg and arm every five years, beginning with the dnte of his application for the benefit of the statute. or to commute the same into a money payment. When the revision of the statutes was made in 1873, these statutes became sections 4787 and 4788 of the Revision. The act of March 3, 1891, enacts that section 4787 shall be amended by striking out the word. "fi ve" and inserting the word" three," so that after that date the