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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
FULLER 'V. UNITED STATES.',
plaillti:ffwould be entitled to:a.ttificial1imbs, or the money commutation every three years. The question is whether this amendment it! to be given -a·retroactive effElct, so that the plaintiff and otbers, entitled of the .aet, demand the .. tificiallimbs,orithe, money-commutation therefor,that they would have had _ .0r..iginaLact oo.ntained .the wor,d "three" instead of the tl five." In construing statutes,the general rule is that" words in a stat'ute ought not to have a retrospective operation, unless they are so clear, strong, or imperative that no other meaning can be annexed to them, or unless the intention of the legislature r.annot be otherwise satisfied." U. S. v. Heth, 3 Oranch, 398; Murray v. Gibson, 15 How. 421; Ohew Heong v. U. S., 112 U. S. 559, 5: Sup. Ct. Rep. 255. There is eel''' tainly nothing in the language used in the act of March 3, 1891, showing that it was the pu'J1)ose of congress.·to make the act retrospective, and the amendatory act can be given full force by allowingit to sueak . the date of its en8ctment.,.".A,ti is fot..plaintitr, based upon ilie as the amended statute reads entitled tf' tp.e benefit. of act" shaU'be anew 11mb.orappara.tusat.the expIratIOn of every penod of three years and as the: WON'" therea.ftllr''' .,' refers .tq' the time. wheif the party makes his application for the belle1itof the statute, therefore,under; tbe amended can the enumeration Qfthe tljreeyear. periods with August 29, 1870.· ·This would be true if the is retroactive in its operation, but the use of the word t'thereafter""/loes not affe,et thatquestion.Tlle purpose of.theoriginaJ and amended statute is .thatthere shaH'be'ful'nished so often, to those who have 19StH!ubs iIi the servIce of the States, artificial limbs,.or theequiv:alent thereof in nlOney. .' In the original statute, the words qeveryfive'years the meaninl(thereof WaS application has been made under the statute and the regulations made by general, party be9ame entitled to a litnb, or the . thtwefQr" ve years thereafter he.' would become entitled to another limb, or the money value thereof, ahd' the word "thereafter" only indicated the time when the period fixed in the statute began to run in his favor. Up to the adop,tion of the 3, 1891, the plaintiff, therefore, was entitled to a limb, or :the' commutation therefor, for every period of five years, beginning with of his application, to-wit, August 29, 1870. On the 29th of August, 1890" he 'l'E1cei:ved the commutation payment then due him, andwnew period of:five years thenbeglm to run.' <By the amendment qfl891.,the length of these ,periods fromfiv'6 to three years, and the .plmn. tiff, thete(<>re,will,be entitled to new limbs, or the money value thereof, in August, 1893. In the case of Ely v. Holton, 15 N. Y. 595,theoourt of appeals had occasion to construe the effect of an amendment: made in the same form M that adoptedin the presentcase,-that is, by declaring .that, Ilsamended .. the. seetjon will.' read·. as follows, and then ,setting forth the ,$ectioll in full; and the: conclusion is reached that tl tbe'pri<:lvisions ;()f th,e JJe(;tiQU which are're.Jleatedare .to. beconsidElred. 1!Jl' haying. beeu, the
law from the they:'Were first enacted, and the 'new provisions are to act took effect;" in be understood as' enacted at the time the other the amendment ill not to be given a retroactive effect. Believing this: 'to be the proper construction ofthe .statute in question, and that it cannot beheld that the amendment wllS intended, to be retrospective, it follows that the demurrer to the petition must be sustained; and it is so ordered. '
: l . i.
,(Oi'rcuf.t Court, N. D. IlZinoiB. ,February, 1881.)
A dealer lp. cured agreed f,h writing to furnish a, dealer in pro. . visions' in Liverpool "'711,·bbxGli Kingan's Cumberland Cut bacolS, II and "50 boxes , midd,le,B,· · · goods to be of choicest quality of and or sale to be voided, and goods to be sold for acoount of" the seller;, Both;of the packers mentioned were putting up brands of 'meat exclusively f.,4r tQe Liverpool market,. which bore the1rrellpective names, and other brands, without theirnalnes, for' tlie generai market. The seller furil.ished the latter , brands. Their quality Wail equal to that of the others; bu,tthose bearing the packers' aflrst-cla,ss ,repptatiqn in theI,.iver.pool brought a better price there, the othets P'eing ratee:tas second-class. SimIlar contracts were :mled ather dealers by fur.nish1ng the same meat. HeliL, that there was a breach of tb,e warranty. , " . The 'faet'that the brands'beartngthe pac1i:ers' names were Dot for sale by brogenevaij.y, l>Utonly by designated agents ,in Llyerpool,was no proof that such brands were not intepded, by the contract, when it did not allpear that tile purcnaser was'aware of fact." ," '
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8. S.l.ME-EII'lIEC'J;', OJ!' RECEIVING GOODS.
Nor is it.a defense ,that the llurchaser received the after being notified by the bills Of lading that other brands were furnished, SlUce' the contract gave him Qut\lority, in ,such event to receive and sell the goods on the seller)! aceount.
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"SAME-EFPECT OJ!'PAYING DRAFT.
Acceptance and payment by the Jlurchaser of drafts drawn upon him in payment. therefor, after he became aware of the breach of contract., were not prejudicial to
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, At Law.
;Edward A·. ,Dicker, for plaintiff. loseph Wright, for defendants.
,BLODGljlTT, J. This is an action on a guaranty by defendants on the sale of a quantity of meats plaintiff. Plaintiff, in November, 1876, -was a dealer in provisions 1in Liverpool,England. Defendants were "Cilealers incmed ments in the city of Chicago; and OlleR. H. Rose was agent for the defendants in Liverpool. On the 24th of November, Rose, as ,agent for defendants, by contract in writing, sold to plaintiff "75 boxeS Kingan's Cumberland Cut bacon," for Shipment from Indianapolis dUlling, November, at 42 shillings per cwt., and "50 boxes Thallon's Stafford middles," 'at, 44 shillings per cwt.; "goods all warranted to be of choicest quality of grade and brand, or sale to be voided; and goods