VAlt Dt1ZEE ". UNITED'
81'ATE8.
643
remedies forieachirig.propettywbich by ordinary execution. The plaintiffs, perhaps, may not have been obliged to resort to these B.ut shown they h,l1ve ybosen 'to do so; they have seized' upon: pro.pel1ty of tbecitysufficient, and more than sufficient, to pay theirwh()le debt, and' b'ya process which holds it as firmly a,s tangible. property .be held under: ordinary execution. They: are .engaged in prosecuting their right to'. hold this property. Thllii' 'very COurse of actid1'!sliows that tbe'qqestion whether they are not entitled to hold it is at least a doubtful one. Until this question is <;ided ,th,ey have any need of'the extraordiIUlry remedy of mandamU8. The plaIntiffs cannot with one hand grasp property sufficient to satisfy tlie,ir JUdgment, and reach out the other' for a mandamus to levy taxes. If their right to the property seized is disputed, they are.still in no plight to ask for a mandamUS until that dis-:. pute1s decided,or is by tl!lerit abandoned. . Ente'rtaining .these views, I think that the demurrer to the return must be overruled, and judgmentgiyen for the refusing the issue of a peremptory man-: damU8. This renders it unnecessary to consider the question of the power of the city to levy' the tax in question. Judgment is given' for the respondenWaccordingly.
(DMtnict Court,N. D.l0t0a, E. D. November Term, 1891.)
Act Congo Feb. 22, 1875, reql,lires the accounts and vODche.rs oltbe marsbal, clerk, and district attorney to be' malie out in duplicate, the original to be forwarded to Washington, and the duplicate to be retained by the clerk; the papers forwarded to be accompanied by a certified copy of the order of allowance. Held, that the latter paper is no part of the vouchers,required to be made in duplicate, and hence the clerk is not entitled to". fee. fur duplicates thereof. ' UnderAct Congo Feb. 22, 1875; reqniringtbe official acCounts to be presented to the court in the presence of tbe district attorney or his aSsistant, it 1& necessary
fI.S..ure-:ll:NTRIES OJ' SUBMISSION' Ail'll ApPROV AL'oJ' ACCOUN'l'8.
F:F;DE'ML
I,
vol. 48.
,.that. an entry sh!>uld l>!l to a 'tee for makIDg the same, pmval oraisapproVal. ' 6. SAMB-DRAWING JURIES.
11S wen
submission ;al:\d is entitled fisforentering the sUbsequent order of ap",' '
The'clerk is entitled. "to compensation' for services rendered in procuring the ., Jlllmes of persons to serve as jurors, and, in, drawing the juries for the terms of oourt in the district. Gootlrich v. u.{J., Fed. Rep. 892jfollowed. SAlIIB-DupLIOATB VOUOHllRS OF AocouNTS.
7.
The clerk is entitled to fees for filing the vouchers and duplicates accompanying t)le \I.0COunts of the marshal, since, by the illstructions of t.he department of justice" he is rel,lUired, when sElnding forward the originals, to 'certify that duplicates thereof are on file in his office. ' ' " , , cipal; and to deliver hitn to the marshal before a judge or commUting o1licer, and reqUire,,s:the lat,'tel', on req ,:uest of the, sureties, to enter th,eir, 'ex,oneration upon the reCfpgJilzance or a certifie(l. copy therElof.I:leld, tl1at the olerk, is not entitled to a the governmehtfor making a certifled copy for this purpose, as the suretiesi themselves should pay him Jor the same.
8.
BAlIIE,...(JOPY OF BAIL-BoND.
" Rev:. St. U, S. § 1018, authorizes the .sureties On a bail"bond to, arrl)st their prin.
G.
S;UI;B-!SSUING WARRANT,'TO BRING PRISONER FROlll
Under Re\'. St. U. S. § 1.030, a formal warrant is not necelilsao/ to authorize a mar, shal to bring: a prisoner conflnedat Sioux Oity to Ft. Dodge for trial; and the clerk is not eIltitlea to a fee !Jsuing the same. ' " The clerk is entitled to a fee for a certificate and sealtoa copy of an hldictment ,ful'llished to the defendant under the rule of court, as it is the usual practice to copies of of,the by the clerk. As it is the duty of the clerk to approve recognizances in cri'minal"casAs, hi's iri· dorsementof approval thereon, in accordance with tbe usual Ilract.ice, is the making of an entry or certificate, within the meaning of Revo St. u. S. § 828, allowing a fee of 15 cents per folill for such entries. , :, ' " SAiIm,-:!NDICTlIIENT-GOPY, FURNISHED TO, ACOUSED. ,,
10.
1L SAlIIE..;;;INDORSING ApPROVAL OF RECOGNIZANCES.
19.
The clerk is entitled to fees for aaminister.' the oath to jurors, both grand ana petit, when they prove up their attendance before him; for the issuance of a certificate to each juror sn.oV'j"ing'the,nulIWct- otldays!attendaooe and the miles traveled, as a basis for the marshal's payment; for entering the order requiring the marshal to pay the jurors, and for making copies thereof for the marshal; and for making a report Wthe court of tb.e;per diem aDd mileage due the jurdrs,.l...s,ince all these acts are required by the rule of court, and are useful checks upon the accounts of both o1licers. ,,'.', , ; ,,' , ' 18. PRAWmci ,JURORS., '.' ' ", '""" ,', to feeS for and seal attBQhed,to the copy of d,rawin,g under rules. ofcqurt, qf of the C(;\1irt's .M9or<iiqg,1to. tbe [i/1 Jowa,the final entries in criminal cases sh91,llAcpntal", the foIlow:ln_g,papers. for,whlchthe c1erksoH,he' federal courts ln to folio ,fees:, The"commissioner's order. for, appearance before ,the grlUld 4ury;"thlll,entriY' showing the"due presentment'of the indictment by the gral1d °J,ury; ,thll inetictment; the bellch-warrant, and :return thereon ; the arraignment and plea; the entry showing'trial andverdietj'the sentence ana. flnal orders, such as grani.ing new trial, moaifying or suspenslingsentence, or . manner and place ofexe.c-\\ting itl the mtttimusand retul·n·sh'owing the execution , of the ,sentence' 'an(l. thEl'Ejntrybtsatisfaction w;hen af1ne is,paid. But it should 110t contaili. toe bail-bo,J;ldsor entries of default and, forfeiture tbereof, the (lrders for of witfles,ses who fail to appear,'the attachments themselves, or the return thereon. The dOCKet fell of three dollars in criminal cases does ,not include compensation for the witnesselil; an,d the clerk is entitled to the statutory fee therefor. OF SENTENO'E. " , , " SAlliE-FINAL ENTRIES IN CRIlIIINAL CASBS. ,"" 0 ,
SAllIE-PAYING JURORS.
14.
11i. S,j,lIIE-:-SWEAIHNG: WITNESSBS.,' 16;
Code !owa,§ 4515, requires that when a prisoner Is committed to the custody of a jailer the latter shall be furnished with a oertified copy,of the entry of judgment. Held that, when a priS\ll;lllr is committed to jail the sentenceQf ,federal court, it is copy al1d he is entitlecl the statutorY;fee therefor:."
VAN DUZEE V. UNITED STATES.
645
17. ,SAME-COPIES 011' INDICTMENTS. When the clerk, upon the written order of the district attorney, furnishes him with copies of indictments containing numerous counts against the officers of a national bank. and it clearly appears that such copies are necessary for t'be proper preparation of the government's case, the clerk will be Bllowed folio fees therefor. 18. SAME-MITTIMUS. When a prisoner is ordered to be confined until his fine is paid the clerk is en. titled to fees for issuing the mittimus. for filing the same when returned by the marshal, and for entering his return thereon. 111. SAME-VOUOHERS. . The order of the conrt of the northern district of Iowa, directing the marshal to procure the necessary record-books .for the qedar Rapids divisi?n of constituted the proper voucher for hIS expen,dltures; and, as he IS reqUIred to file with the clerk a duplicate of all vouchers which accompany his account, the clerk was entitled, to fees for fnrnishing duplicates of the order.
At Law. Statutory action by A. J. Van Dllzee, as clerk of United States court, to recover fees for certain services. On demurrer to petition. A. J. Van Dnzee, pro 86. M. D. O'Connell, U. S. Dist. Atty., and De Witt O. Oram, Asst. Dist.· Atty., for the United States. SHIRAS, J. Attached to the petition in this cause is an itemized account of the work done and services rendered for which the plaintiff seeks to recover judgment. The demurrer pre!.'ents the question whether the items included in. the account come within the classes of service for which the plaintiff, as clerk of the court, is entitled to compensation from the United States. 1. The first question arises on a charge for filing the discharges given to witnesses summoned on behalf of the govemment by the district attorney. Section 877 of the Revised Statutes requires that witnesses sununoned to attend court 'on behalf of the United States shall be pamaed generally I and not. in a particular case, and that they must not depart from the court without leave of the court or of the district attorney. Under the rule of this court, before a witness can obtain his pay from the m'arshal, he is required to obtain from the clerk a certificate showing the number of days of attendance and mileage to whichhtds entitled; and. to properly prepare this certificate, the clerk must .know the day on which' the witness is discharged from attendance, ahd also the fact that he has obtained the proper leave from the districtattome)'. It is and has been the settled practice for years, in this district, for the district attorney to furnish to the witness a written discharge, which· is filed with the clerk, and upon which in turn the clerk bases the certificate which he gives the witness as evidence for the guidance olthe marshal in paying. the witness the sum due him. There can be no possible question that it is the duty of the district attorney to furnish the written discharge as evidence of the leave granted the witness to depart from the court; and no reason is perceived why it is not the duty of the clerk to file and preserve this discharge, for his own protection, and for that of the witness. If a witness duly summoned and in attendance should depart without leave of the court, or of the district attorney, he could be liable forcontemptj and hence it is entirely proper that the files of
646
48.
the court or the records should show that leave had been granted. If a. witneSs'should apply, under the court to depart, and should be granted, tlie record would contain an entry to thateft'eClt; and for the making thesa.methe clerk would be entitled to his fe,e., the isgran,tedby qr4er of the district attorney, the discharge should be filed , so as to, be preserved as part of the, record of the proceed' ngs of the court, and. in either case the clerk is entitled to the statutory fee for making.the record by filing the discharge. 2. The second item in ,e is tlfecharge for filing receipts of the United States collector forfiries paid in or collected from persons sentenced for violation of the internal revenue laws. Under the tegulations of the tre!l:Sury department, the clerk is, to pay all fines collected in reveIllle cases to the collector of the proper district., ,As evidence of the receipt' thereof, the collector executes written receipts, which operate in the double capacity of evidence showing that the collector has become liable, to account for the money thus and as evidence that the clerk' has performed his duty of payment ,to the proper officer. The argument in support of the demurrer to this class of items is that tbereis no law, requiring the taking or filing sllch receipts, and therefore same are not "papers," within the meaning of the third clause of section 828 of the Revised Statutes. It certainly cannot be possible that the government seeks to ,have it declared to be the law that the clerk is not required or expected to take receipts for moneys thus paid to the collectors. It cannot be that the department would be satisfied with a of the clerk paying hundreds of dollars to the collectors without, any written evidence being taken of such payments. The proposition is its own refutation j and it is entirely clear that it is the duty of the clerk, when these payments are made, to take proper receipts from the collectors, not Qnly as evidence for his own protection, but as evidence on behalf of the government showing that the collector has become liable for the amounts thus paid him. Such receipts are not the pJjVllte property of the clerk. but should be kept in his office as part of the official papers, there to rema.in for the benefit of the government, and llvidence u"eful in settling the accounts of the clerk and accounts of the collectors j and as such they form part of the record of the particular cases in which the fine has been collected and paid over. Such receipts are part of the papers connected with the case, are propElrly filed as such, and for such filing the clerk is entitleq to the statutory fee. 3. The next item in ,dispute is the fee charged for filing the written reports made by the district attorney in regard to the accounts of the marshal, C?lerk, and commissioner. By ,a rule of this court, duly adopted and spread upon the, record, it is provided that, when. the reports of the officers named are 1;iled, they must be submitted to the district attorney for. his examination, and he iSIJequired to make to the court a written report of the result of such examination. The argument made in supP,ort of the demurrer, that the ad of February 22, 1875, does not call for, a written report from the district attorney, does not /
VAN DOZES t1. UNITED STATES.
647
meet the question. This court has the right to adopt rules for the conduct of the businesE:l before it; and, as already stated, it has adopted a rule requiring the district attorney to make an examination of the accounts of officers, and to report thereon in writing. The accounts of officers are voluminous, and require that kind of examination that cannot be well given them in o.pen court. The requirements of the rule of court are in addition to those of the act of 1875, and are intended as an additional safeguard against the allowance of illegal fees. Under the rule, it is the duty of the district attorney to make a written report of the result of his examination of each account, and it is the duty oftha clerk to file such report when made. The report isa paper lawfulJy filed as part of the record of the court, and the :clerk is therefore entitled to the usual fee for sueh filing. 4. The next items demurred to are the charges made for duplicate copies of the orders of. court approving the accounts of the marshal, clerk, and district attorney. Thea:ct of February 22, 1875, requires that the accounts of the officers named, and the vouchers belonging thereto, shall be made in duplicate; the original to be forwarded to Washingtotl,and the duplicate to be retained by the clerk. In order to entitle-the original to consideration and allowance by the department, it is required that duly certified copies of the orders of allowance by the court shnllaccompany the accounts. Yet these orders do not form part of the accounts and vouchers of which a duplicate is required to be left with the clerk. The "duplicate" named in the act is the duplicate of and the vouchers, and does not include the orders of the the court. To these items the demurrerissustained. 5. The fee charged for entering upon the record the fact of the sub·mission of official accounts to the court is demurred to on the theory that the act of February 22, 1875, only required the entry of the order of approval or disapproval. The usual practice is that in accordance with the requirements of the statute the account is presented to the court in the presence of the district attorney or his assistant, and is supported by the oath of the party. Thereupon the court, as soon as possible, examines the account in detail, and then makes the final order. The necessary examination precludes the entering the order of approval at the time 'of the entry of the fact of submission in open court, and hence the need of the two entries. ·The .act of 1875 requires that the record shall show that the district attorney or his assistant was present in court when the account is submitted, and hence there must be a record entry olthe fact of the presentation of the account in open court in presence of the attorney; and the statute further requires a record entry of the final order of approval or disapproval. The clerk has no control over these matters. If the court receives the presentation of the account upon one day, it is the· duty of the clerk to make the proper entry of that fact in the proceedings of that day; and then when the court, upon another day, renders its decision, and orders the approval of the account,thec1erk must make the proper entry thereof. For sllch entries he is entitled to the proper fees.
648
FJiID,Ji1RAL REPORTER,
6. The ltex,t:point arising upon the demurrer is whether the clerk is entitled 'to compensation for services rendered in procuring names of parties to serve as jurors, and in drawing the juries for the terl11 of court in the district. This question has been adjudged in this circuit in favor of the right o[the clerk to compensation for such services. Seeopinion of Judge CAWWiELL in Goodrich v. U. S., 42 Fed. Rep. 392. Relying upon the ruling in that case, the demurrer will be overruled to these items of charge in present cause. 7. Exception is nexttaken to the charge made for filing the duplicate vouchers accompanying the accounts of. the marshal. These accounts and vouchers pass under the control of the clerk, as they are requiredto be presented totbe court in the first instance;;and then, upon approval, the clerk is required to forward the original account and the original vouchers to the department at Washington, and to retain the dl1plicaWs. In the instructions isstled by the department of justice to the derks, (see Register of 1886, p.26l5,) the clerk ifnequired to certify, when forwarding the original of the accounts and vouchers, that the duplicates thereof are on file in his office·. These papers are therefore matters that are to be filed, and under the ruling of BREWER, J., in Goodrich v. U. S., 35 Fed. Rep. 193, tbeclerk had rjght to file each paper,. and to: make the .statutory charge therefor. 8. Thene;Jtt .item demurred to is a charge for a certified copy of a. recognizanice :in a case. ,wherein the sureties thereon Cl;l;used the rearrest of the pariyunder indictment. Section 1018 of the Revised Statutes the sureties to arrest their principal, and, before a judge or committing officer, to deliver him to the marshal; and, at the request of the bail, it is made the duty of the judge or committing officer to enter upon the recognizance, or a certified copy thereof, the exoneration. or the bail. Under this1?ectioD, it would seem to be the duty of the baiUo procure and pay forthe certified copy of the recognizance in case they desired indorsed thereon. To authorize the rearrest of the princ.i.pal, and his delivery to the custody oLthe marshal, it is not necessary that the recognizance, or a copy thereof, should not arise unless be procured in· the first instance ; and. need therefor the bail desires to ask the entry of discharge thereon. The copy made is not furnished to the marshal as evidence of his rightto receive the prisoner, for that is based upon thEj action of the aureties taken before the judge or officer; but it is furnished the sureties in order that they may. if they choose, ha-ve entered thereon a discharge of liability. The clerk is entitled to demand a fee from the bail when they demand a copy, but such f'e.e is not a proper charge agaillst the United States. 9. The demurrer must also be sustained to the charge for issuing warrant to the marshal to bring a prisoner confined at Sioux City to Ft. Dodge for trial. Strictly, under section 1030 of the Revised Statutes, a .formal writ or warrant. for that purpose was not needed; and, treating the warrant as in facta. copy of the order forhringing the prisoner to Ft. Dodge, no fee is chargeable therefor under. the provisions of the section just cited.
649
Exception is also taken to the charge for certificate and' seal attached to the copy of the indictment furnished on demand to the dafendant in the case of U. S. v. Parquette under the provisions of the standing rule of this court. It was the duty of the clerk to furnish the copy; and it is the usual rule that copies of all parts of the record, when furnished by the clerk, shall be duly certified to by the clerk. The charge is allowed. 11. The next item excepted to is the folio charge for the approval by the clerk of recognizances given in certain criminal cases. It is the duty of the clerk to approve these' bonds,and it is the practice to evidence such approval by a written entry or certificate of approval upon the face or back 'of the bond. 'Thisis the making; of an entry or certificate, within the language of sectiim 828()f the Revised Statutes; and the folio fee of 15 cents is chargeable therefor. 12.' The next class ofitems to which exception is taken is charge for ad ministering the oath to jurors, grand and petit, when they are proving up their attendance before the clerk, for the issuance of a certificate to each juror showing the number of clays he has attended court, and the number of miles traveled, as the basis for the action of the mat-shal in making payment to the jurors; for entering order directing the marshal to pay the jurors: for making copies of such order for the marShal; and for making report to the court of the per diem and mileage due the jurors,-as the evidence 'upoh whIch the court relies in making the order for payment. The clerk is required to perform these services in carryirig but the requirements of the rule adopted by the court regulating the'IDlll1ner in which proof of the amounts due jurors is to be furnished. When the jurors are discharged from further attendance, the rule quires them to go to the clerk; and, upon a proper book prepared by him, to enter their names, places of residence, days of attendance, and number of miles of travel; and. as evidence of the correctness thereof, they' are required to make oath thereto. Thereupon the clerk makes out and, furnishes to each party a certificate showing the days of attendance and miles· traveled and· the amount due. This certificate is submitted' to the ma:rshal, and thus he is furnished with a check upon the juror. When the account of the marshal is made ·out for submission to the court l the' rule requires that it shall be first submitted to the clerk, who is required to compare the payment made with the ·facts appearing on his b6ok,or record; :and, if they agree, he is reqUired to make a certificate of that fact upon the account of the marshal. Thus there is put in operation a check upon the juror, and also upon marshal; for his account will not be approved unless it agrees with the Clerk's record. The court is' also required to make an order directing the payment of the sums due the jurors; and as the basis therefor the clerk is required to make a report to the court of the names of the jurors, and the amount due them. Thus it is made the duty of the clerk to perform each act for which' the fee is charged; and, as they are all services of a character for which the fee-bill provides payment, the clerk is entitled to pay therefor. .
:VEDERAI. REPORTER,
vol.
13·. Ex.cepti(),llis als,o taken to charge for certificate. and seal attached to copy of order furnished the jury: comIl)issioner, direqtipg the drawing prQvisions 9f and the propel! ito fijrnish to tbe . ,cOlIlwissioner theeyiqence of th13 Qrder mad13:by the court, requiring himio aid in summopingajury ; and for so, doing can be than by sending him a certified copy of the order? The charge is therefore allowed. final 14. ExceptiQn is next taken to the folio entries in a pUInber of criminal cases. The purpose of the final entry is,tobring wgeMIer in compact form the re9Qrd the the steps tAken in the given case. Under,the rule and settled praein Iowa, there should be included, Qf .the ·items claimed in the aeIltttachedtothe petiti9n herein, in the. final entry, the commissioner's order for appearance before the grand jurYi the entry showing the of the indictment bytbegrand jury; the indictthe benoh-warrant"and return .thereonitheplea of defendant, inc:;luding arraign1l}enti the, entry showing trial, llnd verdicti the sentence and final Order 0);order80f court, such as order granting new trial, or;mpdifying9rsuspending sentence in Whole, .or in part,or directing 1D0de or place.o(..carrying into effE'ctthe mittimus and return ,0Uhe officer showing the exectltio,ll of thesentencei and the the sentence by way is paid. nQt JQclude the the entry of default, orders of, attaqhments fpr witnesses who may fail to IltPpearj and return, and order made thereon. Thesll do not any part of the proceedings the defendalIt n/!.med in ,although theygt:ow outQf it, and hence are not proper parts of thll. fiplll entry. or record. 15. Exception is to the charge for adu1illistering the oath to witnesses in criOlinalcases, it being argued that,the docket fee of three dollarsinclud,es services of this nature. The Jee-1;lill (section ex.pressly for a fee of.10 cents for administe;ring oaths;, and in Van ·J)uue v.,.U. S., 140 V. S. 199, 11 Sup. Ct. Rep. 941, it is expressly held . fee of three dollare is intended to cover the entry of the CfW6, iQdexing, making minutes on calendar,. and such othl;lr service,s as /!lre not covered bypther clatlses of. the statuw. The 'admipistering an oath is It service for; which,qompensation is expresslyproyided by another ((lause of the.statute.;"and the fee therefor is prope,r:ly chargeable. " · made. to the charge seals to thereon, in Cases wherein a prissentenced to impri80nment, and an order is made fixing the the sentence .is to be carried out. Section 1028 of the ,Statutes a prisoner is. delivered to a sheriff qnder·a writ, wa,rrant, prmittimu8, a copy therf\of shall be left shllriff and jailer, and the marshal's made on statutes. of Jowa ,(section4lU5,' require that when a prisoner is committed to· the custody of a keeper pf Ii jail or i
VAN DUZEE fJ. UNITED STATES.
651
prison a certified copy of the entry of the judgment shall be furnished him. Certainly it· is the proper practice, when prisoners areeommitted to a state jail under a sentence of a court of the United States, that there shall be furnished t() the jailer the .evidence which the state statute requires him to dematJd before he will receive a prisoner under his custody. The copy of the judgment entry shows the terms of the sentence, and the order shows where the sentence is to be carried out, which is a necessity in case of sentence in the federal courts. These copies, when delivered to the jailer, are the evidence upon which he relies as proof of his authority to hold the prisoner in custody. Clearly, therefore, the copies should be certified to; and thus the jailer has furnished him that which, on its face, bears evidence of its official character. The copies in question constitute the mittimus required by section 1028 of the Revised Statutes, and the jailer is entjtled to demand an official copy thereof before he can be reqUired to assume the charge of the prisoner; and this requires that the clerk shall make the proper certificate,: with his official seal attached, and for so doing he then becomes entitled to the statutory fee. 17· Exceptions are next taken to the folio fees for making copies of certain indictments, and certifying the same, at the request of the district attorney. These indictments were found against certain of a national bank, and many count The charge therefor was '. allowed by the court when the clerk's account was originally passed on. because the court knew the character of the cases, the large number of counts in the indictments, and that, to enable the district attorney to prepare causes for trial, it was absolutely nt:cessary that he should have, for his own use, a copy of the indictments, which set forth in detail the various acts counted on as violations of the banking act. The facts upon which the allowance was made clearly proved the need of furnishing to the district attorney the copies charged for; and as the services were rendered by the clerk in aid of prosecutions instituted by the government, and upon the written order of the district attorney, the c()urtl'in passing upon the account of the clerk, ullowed the folio fee for the copies, and the fee for the certificate and seal, and also for filing the t written order or priEcipe. The ruling then made is now affirlned. 18. Excel'tion is also taken to the fee charged for issuing a mittimus in cases Wherein the defendant is ortIered to be imprisoned until the fine be paid, and for filing same when returned by the marshal, and for entering his return thereon. The mittimus is the' warrant issued to' the marshall directing him to commit the defendant to custody as required' by the'sentence, without "'hich the marshal would. not be justified in committing the defendant to jail; and its issu.ance and return are necessary· s'tepsin carrying out the judgment or senterce of the court. The fees oharged for these services are thf'teforea1l6wed.' 19. ;The ;last item demurred 'to is the chll.rgefor making duplicate copies of the' order of the court,' ;mlirshal to procure the neceSSflryl1'ecordb60ks, for Use in the Cedar Rapids division of thiS di:a.trict. "These copies of theorderareih,'theinsel\tes'vouchers f()r the ben-
652,
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.
'VUMQAN ", J, .
,
.,',
'11. CYCLONE, . , ' ',
STEAM, .·
SNOW-PLOW
Co. et 01.
l
: 1. ,
'j'
:i-, :" !' j ;,
'i
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.'
ll.
,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.
Law..
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.