IN; 'lUll' 'wAl.t.
effect." Harvey v. Tyler, 2 Wall. 328; Warren Manuj'g Co. v. .£tna Ins. Co. 2 Paine, 501. The act is not in terms retrosuectiv3. It ca.nnot be presumed, in the absence of express terms, that it was the intention of tl1e legislature that the aet should apply to a company which had abandoned business in 1861, and thai; it should be conto provide that the of an agent who had died before the passage of the act, and whose powers terminated in 1861, was clothed with power to accept service in 1878. Such a construe'tion of the statute is not permissible unless language is used which admits of no other construction. In my opinion the state court of Virginia had no of the defendant. Judgment should be entered. for the defendant.
WALL, a Minor, etc.
July 2, 1881.)
MINOR-CoNTRACT OF ENLISTMENT-AVOIDANCE.
A minor's contract of enlistment is voidable only, and not void. If, &iter enlistment, he commits a military offence, is actually arrested and in course of trial before the contract is duly avoided, he may be tried and punished
Where a minor enlists in the marine corps of the United States, desenshis post and goes home, is arrested and in course of trial before the contract of enthat the trial must be proceeded with. listment is avoided by him,
Appeal. Brown d; Alger, for petitioner. Geo. P. Sanger, Jr., Asst. Dist. Att'y, for the United States. LOWELL, C. J. John B. Wall was enlisted in the marine corps of the United States, January 28, 1879, taking the usual oath that he was . upwards of 21 years old. He served with acceptance, and was commended and promoted. In March, 1881, being then stationed at the navy-yard, in Charlestown, he deserted his post at night and went home to his friends. He was arrested in May, 1881, as a deserter, and his case being reported to the secretary of the navy at Washington, an order was sent by him to call together again a general court-martial which had lately been sitting, and to try Wall for desertion. This order was received May 11, 1881, at about 9 o'clock in the forenoon. At noon of the same day a writ of habeas corpus was served on Colonel Hebb, the officer commanding the marines at Charlestown. Upon the hearing before Judge Nelson, in the district court, facts a.ppeared; and also that Wall was under 18 years of age when he
was enlisted, and was under 21 years when the trial took place. The district judge decided that the enlistment of III minor who was old enough to understand the contract, and who was in good faith accepted as being of full age, was voidable only, a:nd not void; and that if he had committed the military offence of desertion, and was under arrest for that crime, and the oourt-martial had been orq,ered to try him, he ought not to be discharged on habeas corpus. This view of the rights of the parties is sustained by the authorities cited. See Com. v. Gamble, 11 S. & R. 93 ;Ex parte Anderson, 16 Iowa, 595; MaConologue's Case, 107 Mass. 154, 170, per Gray, J.; Re Dee, 25 Law Rep. 538; Re Beswick, 25 How. Pro 149. It is true that Com. v. Ga1J1,ble, 11 S. & R. 93, is doubted in a later, case in the same court, (Com. V. Fox, 7 Po,. St. 336,) but in this case the judges found that the statute ma,de such an enlistment absolutely illegal, and for that reason held it to be void. I have not Iound a corresponding statute applicable to this case. It is illegal'to enlis't a marine between 18 and 21 years old, wLhout the consent of his parent or guardian, if any he have, and if an officer does this knowingly, he is liable to punishment; but this minor had neither parent nor guardian. His contract was voidable at common law; but I do not see how I can hold it to be void. McNulty's Case, 2 Low. 270. If not, it seems to follow that if M commits a military offence, and is actually arrested and in course of trial before the contract is duly avoided, he may be tried and punished. I do not mean to be understood as deciding that it would be desertion in a minor to leave the service openly after demanding his release, nor that he could be tried and punished after a court had released him. It appeared upon the cross-examination of a witness that Wall was actually tried and sentenced while in the constructive custody of the district court, the officer who had him in charge not thinking it worth while to inform the court that the proceedings in the district conrt were pending. This conduct was highly reprehensible. Whether the sentence is a valid one, under these circumstances, is a question not brought here by the appeal, which is merely for a review of the decision by the district court. If Wall or his friends should be so advised, they may probably be able to try this question upon new and independent proceedings. Appeal dismissed.
WOVEN-WIRE HATTaBSS CO. V. WIRE-WBB BED 00.
(Circuit Oourt, D. Connecticut. June 6, 1881.)
No. 7,704-BEDSTEAD FRAMES-(JONSTRUCTION-INFRINGEMENT. He-issued letters patent No.7,704, granted May 29, 1877, to Woven-Wire Mattress (Jompany, for improvement in bedstead frames, limtUd as to its first claim to the language of the first claim of the original patent, sustained as to its third claim, and held infringed as to such claims.
It is competent for a patentee to restate his invention in a re-issue so as to point out and claim a characteristic feature which is not clearly stated in the original patent.
ANTICIPATION-J!:vmENCE-PREBUMPTION ATTACHING TO A PATENT.
Evidence of anticipation, to overcome the presumption attaching to a patent, must be clear and sufficient. 'l'he unsupported oral testimony of a patentee , that he made a number uf ,devices, containing a certain alleged anticipatorY element, long prior to the controversy, but which was not shown in his application for a patent for said device, and without producing a device containing such element, is not such evidence as would overcome the presumption which belongs to a patent.
In Equity. Oharles E. Perkins, for plamtIff. , F. Thurston, for defendant. SHIPMAN, D. J. This is a bill in equity founded upon the alleged infringe'ment ot re-issued letters patent, issued May 29, 1877, to the plaintiff, as assignee of John'M. Farnham, for an improvement in bedstead frames. The original patent was issued November 30, 1869, also to the plaintiff as assignee. ' The first question in the case relates to the validity of the re-issue, or to the construction of its claims; for if' the re-issue is not invalid, and if a literal construction is given to its claims without reference to the original patent, infringement of the first claim cannot be denied. The invention relates to a bedstead frame upon which is to be' extended a flexible or elastic'sheet or fabric for the support of the bedding. In the specification of the original patent the patentee said:
" The invention consists in the use of slotted or double-inclined end pieces, in which the ends of the fabric are clamped, and in the employment of longitudinal adjnstable standards, to which the said end'pieces are secured."
were as follows:
"(1) The inclined double end-bars, C, of a bedstead frame, arranged substantiallyas and for the purpose herein shown and described. (2) The standards, B, arranged longitudinally, adjustable on the side-bars of bedstead frame, to permit- the inclined end-bars to be set at suitable distance apart, as set forth.;'