UNITED STATES v. LANDSBERG.
214; Be Martin, 2 N. B. R. 548; Re Sloan, 12 N. B. R. 59. Undoubtedly that decision would not preclude a new bankruptcy proceeding, nor, probably, a discharge in such proceeding, if tile bankrupt could have shown himself entitled to one. Re Farrell, 5 B. R. 125; Re Drisko, 13 N. B. R. 112, and 14 N. B. R. 551. For the purposes of the present bankruptcy that decision must be deemed adjudicata, that the bankrupt is not entitled to a discharge, because he has not complied with a condition essential to his right. It was a condition which could not be waived by a creditor, and which the court was bound to consider as a prerequisite to a discharge. The subsequent amendment of the bankrupt act did not impair or affect the controlling force of the previous adjudication. Assuming, what may well be controverted, that the amendment may be given such retroactive effect as to authorize an application for a discharge in a pending proceeding, although the year from the date of the adjudication of bankruptcy had expired, it certainly cannot operate reo troactively to overthrow a prior judgment. A retrospective construction to a statute is never favored; neither will it be inferred that congress intended to exercise a doubtful power. It is, at least, doubtful whether the act would be within the legislative competency, if intended to effect such a result. State of Pennsylvania v. Wheeling Bridge, 18 How. 421. The order of the district court is affirmed.
December 22, 1882.) 5393
(Circuit (lourt, S. D. New York.
ORIMINAL LAW AKD PROCEDURE-PERJURy-MATERIAL MATTER-REV. ST. -CR08S-ExAUINATION BEFORE UNITED'STATES COM1IUSSIONER.
Where a party charged with counterfeiting, on examination before a United States commissioner, testifies, on cross-examination, in answer to a question" that he has never been in prison, when he has been in a state prison, su"h false answer amounts to "material malter," within the meaning of Rev. St. § 5392, and an indictment for perjury will lie. .
Motion for New Trial and in Arrest of Judgment.
J. G. Agar, Asst. U. S. Dist. Atty., for the United States. R. N. Waite, for defendant.
Before WALLACE, BENEDICT, and BROWN, JJ. BENEDICT, J. The accused, having been convicted of perjury, now moves for a new trial and in arrest of judgment. The principal question presented for determination is whether the crime of perjury waS: committed by the accused when he made the false statement, under oath, which is set forth in the indictment. This statement was madeunder the following circumstances, as shown at the trial: The ac-·
cused had been arrested by virtue of a commissioner's warrant; upon a charge of having uttered counterfeit coin. He demanded an examination, and, upon such examination, duly held before the commissioner, he offered himself as a witness in his own behalf, and was duly sworn as such. Upon his cross-examination, in answer to a question put without objection, he testified that he had not been in prison in this state, or any other state, when the fact was that he had been imprisoned in the state prison of this state, and also in the state prison of New Jersey. Thereafter, the present indictment was found against him, in which the perjury assigned is the testifying, under the circumstances above stated, that he never was in prison in this state, or any other state. On the part of the accused the point made is that the false matter so stated by the accused before the commissioner was not material matter, within the meaning of the statute, and therefore the crime created by the statute was not committed. An essential element of the offense created by the statute (section 5392, Rev. St.) is the materiality of the matter charged to have been falsely stated. The words employed in the statute are "material matter." These words were, doubtless, aaopted from the common law, and they must be given a signification broad enough to cover, at least, cases of perjury at common law. The rule of the common law in regard to perjury is thus stated by Archbold: "Every question in cross-examination, which goes to the witness' cre:lit, is material for this purpose." Archb. Crim. Pl. & Proc. 817, (Eng. Ed.) The same rule was declared by the twelve judges in Reg. v. Gibbons, 9 Cox, C. C. 105. The inquiry here, therefore, is whether the imprisonment of the accused in this state and in New Jersey was calculated to injure his character and so to impeach his credit as a witness; for it is not to be doubted that when the accused offered himself as a witness, he placed himself upon the same footing as any other witness, and was liable to be impeached in the same manner. Upon this question our opinion is that the matter stated by the accused as a witness had an obvious bearing upon the character of the witness, and could properly be considered by the commissioner in determining what credit was to be given to the testimony of the witness in respect to the crime with which he stooel charged. In neg. v. Lavey, 3 Car. & K. 26, the accused, when a witness, had falsely sworn that she had never been tried in the Central criminal court, and had never been in custody at the Thames police station. On her trial for perjury these statements were ruled to be material matter, and the conviction was sustained. In Com. v. Bonner, 97 Mass. 587,a witness had been asked "if he had been in the house of correction for any crime." Objection to the question on the ground tlul-t the record was the best evidence was waived, and the case turned upon the materiality of the question. The matter was held to be material. The present case is
HARTFORD WOVEN-WIRE II:'CO. V. PEERLESS 'VIRE M. CO.
stronger, for here no objection whatever was interposed to the inquiry respecting the imprisonment of the accused. Having made no objection to the inquiry, and gained all the advantages to be secured by his false statement, it may perhaps be that it does not lie in his mouth now to say that his statement was not material. See Beg. v. Gibbons, supra; Reg. v. Mullany, Leigh & C. 593. But, however this may be, it is our opinion that the statement he made was material matter, within the meaning of the statute, because calculated to affect his credit as a witness. The other points discussed have received our attention, and are thought to be untenable. They are not such as require attention in this opinion·. The motions are denied.
HARTFORD WOVEN- WIRE MATTRESS Co. TRESS Co. Circuit COIl1't, D. Connecticut.
PEERLESS WIlm MAT-
No.7,704-NoVI!:LTY. Reissued patent No. 7,70t. granted to the Hartford Woven-wire Mattress Company, as assign.·e of John M. Farnham, for an improvement in bedstead frames, on May 29,1877, held not void for want of novelty, and infringed by defendants. 2. SAME-PERKINS PATENT No. 109,446. Patent No. 109,446, granted George C. Perkins for an improvement in wovenwire fabrics for mattresses, dated November 30, 1ti69, held void for want of invention.
PATENTS FOR INVENTIONS-WIRE MA1'THESSES-FAUNHAM PATENT- REISSUE
In Equity. Charles E. Perkins, for plaintiff. Wm. Edgar Simonds, for defendant. SHIPMAN, J. This is a bill in equity to restrain the alleged infringement of reissued letters patent No. 7,704, granted May 29, to the plaintiff, as assignee of John l\f. Farnham, for an improvement in bedstead frames, and also of letters patent No. 109,446, granted November 22, 1870,.to George C. Perkins for an improvement in woven-wire fabri(ls for mattresses. The original Farnham patent wus dated November 30, 1869. The description of the Farnham invention, as given in the original and reissued specifications, is contained in the ouinion of this court in Woven-wire Matt·ress Co. v. Wi1'c-web Bed Co. '8 FED. REP. 87. The four claims of the reissue are as follows:
"(1) The combination of the side-bars and end-bars, and ela.. coiled wire fabric, D, attached only to the end-bars, with the end-bars of the frame elevated above the side-bars, so that the fabric will be suspended above the sidebars from end to end of the frame. (2) The comuination in a removable bed-