In re LAWLER. (Circuit Court N. D. Georgia. October 28, 1889.) 1. ARMY AND NAVY-ENLISTMENT. A petition for discharge on habeas corpus of one arrested as a deserter from the army alleged that petitioner was under 16 years when enlisted; that he enlisted through the fraudulent representations of one J., the recruiting officer; that his father's written consent was obtained by means of such representations; and admitted the desertion while still a minor. The return denied the fraud, and presented the written consent of petitioner's father to his enlistment, and petitioner's sworn statement that he was 20 years and 6 months old at enlistment, and alleged that J. was a private, and not the recruiting officer, who was one P. Held that, as the return was neither demurred to nor denied, it must be taken as conclusive as to all the facts therein set forth. 2. SAME EVIDENCE. Evidence of petitioner's relations, that he was under 16 years when he enlisted, is not sufficient to establish that fact against the sworn statement of the petitioner and the record in the family Bible, showing that the birth of petitioner, as recorded, had been changed from 1870 to 1871, and the record of the birth of a younger sister in 1871 entirely erased. PARDEE, J. A. C. Lawler filed a petition in the district court of this district, setting forth that he is a citizen of the United States and of the state of Georgia; that he is forcibly and illegally detained and deprived of his liberty in the United States barracks, at the military post in the city of Atlanta, by one Henry H. Clawson, in command of said post, by virtue of a pretended claim of authority of said Clawson, as agent of the United States, to hold petitioner upon the charge of being a deserter from the army of the United States. The petitioner further alleges that some time in the month of October, 1886, he enlisted as a private in the United States army, at the recruiting station in Atlanta; that at the time of said enlistment he was a minor under the age of 21 years, to-wit, of the age of 15 years and 6 months, and that therefore said enlistment was without authority of law, and contrary to law and void; that he was induced by fraudulent representations to enlist as above stated; that there was a written consent to said enlistment by petitioner's father, but that said written consent was obtained by fraudulent representations made by one Hayes Jemmison, recruiting officer, and agent of the United States,. to petitioner's father; that said fraudulent representations, both to petitioner and his father, were to the effect that petitioner would be sent regularly to school, and would have other advantages in the army which he could not otherwise obtain; that all said representations proved to be false, and were known to said Jemmison to be false when he made them; that afterwards, on the day of April, 1887, and while still a minor, petitioner left the said army, and has not since returned, and that on the 27th day of September, 1889, petitioner was arrested in the city of Atlanta, and is now held illegally and against his will. Petitioner prayed for a writ of habeas corpus, which was issued and served, and thereupon the commanding officer, Gen. Jackson, made return substantially as follows: That the said Lawler was arrested as a deserter from the United States army, and is now held as such awaiting trial, which will be had as soon as a court-martial can be convened and organized for that purpose; that respondent denies all the allegations of petitioner as to his age, and states that in his belief he is of lawful age, and regularly enlisted; that no fraud was practiced to obtain his father's or petitioner's consent to the enlistment; that recruits in the army have the privilege of six months' schooling while in the army, and petitioner could have enjoyed this advantage if it did not conflict with his other duties as a soldier; that it is now compulsory for recruits to attend school where not in conflict with other duties; that he does not know what other advantages petitioner alludes to in his petition; and that recruits in the army do possess other advantages not enjoyed by others not in the service. Respondent tenders to the court the original descriptive list or enlistment papers upon which petitioner entered the United States army. Said papers show that at Hiram, Paulding county, Ga., on October 5, 1886, J. P. Lawler, as the father of Albert C. Lawler, gave his consent in writing for A. C. Lawler to join the United States army, Battery B, second artillery; that Albert C. Lawler filed a sworn statement on the 6th of October, 1886, stating that he was born in Randolph county, Ala.; that he was 20 years and 6 months old, and a farmer; that he voluntarily enlisted October 6, 1886, as a soldier in the army of the United States for five years, unless sooner discharged by the proper authority; that he agreed to accept such bounty, pay, rations, or clothing as established by law; that said Lawler also took the oath of allegiance, and swore to obey the orders of the president, his other superiors, and the rules and articles of war, all of which was signed and sworn to by said A. C. Lawler before Charles F. Parker, second lieutenant, second artillery, recruiting officer. Said papers also show the certificate of the surgeon that the applicant was free from bodily defect or mental infirmity, and the official statement of Charles F. Parker, second lieutenant, second artillery, recruiting officer, to the effect that he minutely inspected said A. C. Lawler previous to his enlistment; that he was sober when enlisted; that to the best of his judgment and belief he was of lawful age; and that he observed the other rules and requirements in regard to enlisting soldiers. Said return further shows that the said Hayes Jemmison, mentioned in the petition, was at the time of the enlistment of Lawler a private in the army of the United States, and that the recruiting officer was Charles F. Parker, second lieutenant, second artillery. This return was neither demurred to nor denied. Upon the case, as made by the petition and return, the case went to trial in the district court. On the trial, as it appears by the brief of evidence and bill of exceptions, the petitioner, by his counsel, asked leave to amend his petition by withdrawing from it the allegation that there was a written consent of the petitioner's father to his enlistment in the army, which proposed amendment was refused. The district court, after hearing the evidence, gave judgment discharging the writ, and remanding the petitioner to the custody of the respondent. Thereupon petitioner applied for and was allowed an appeal to this court. In the order allowing the appeal, no provision was made for the custody of the petitioner pending the appeal. The case has been argued at some length before the circuit court, mostly in regard to the rules of evidence in proving the contents of written papers, and upon the refusal of the district court to allow the amendment withdrawing the allegation of written consent by petitioner's father to his enlistment. It does not seem necessary to pass upon these questions. As the return of Gen. Jackson, the custodian of the petitioner, was neither demurred to nor denied, nor in any wise put at issue, it is to be taken as conclusive on the facts therein set forth. In this view of the case, no issue is left except the single one as to whether or not the petitioner was under the age of 16 years when he enlisted. If he was over the age of 16 years at that time, his enlistment, according to the return, was regular and valid; if he was under 16 years of age, the enlistment was void, whether the father consented in writing or not. On the question of the age of the petitioner at the time he enlisted I have carefully considered all the evidence, and it fails to satisfy me that the petitioner was under 16 years of age when he enlisted; but, on the contrary, satisfies me that he was over that age. On the side of the petitioner is the evidence of his father, mother, and himself, and his brother, no one of whom testifies with certainty, and as having good and sufficient reasons for certainty. On the other side is the sworn declaration of petitioner when he enlisted, the written consent of the father, the certificate of the recruiting officer, and what family record was presented on the hearing of the case in what purports to be the family Bible. The record in this Bible shows that the birth of the petitioner was originally entered April 20, 1870; that at some time since the original entry the record has been tampered with, an attempt made to erase the "0" in 1870; and insert the figure "1;" and that the birth of a younger sister, occurring some time in 1871 or 1872, has been entirely erased, in order, apparently, that the record might not show too many children born between 1871 and 1873. The conclusion left upon my mind is that the claim that the petitioner was under the age of 16 years when he enlisted was invented subsequent to the arrest for desertion, and that the petitioner's evidence has been somewhat made up to meet the necessities of the case. The judgment of the district court in the case will be affirmed. DEERING v. MCCORMICK HARVESTING MACH. Co. SAME v. WINONA HARVESTER WORKS et al., (two cases.) (Circuit Court, D. Minnesota. November 30, 1889.) 1. PATENTS FOR INVENTIONS-HARVESTERS-INFRINGEMENT. The fifth claim of letters patent No. 191,264, dated May 29, 1877, for improved harvester, being a combination of toothed arms, a slotted receiving platform, and fixed springs, with the characteristics described in the patent, and co-operating for compacting the gavels, is not infringed by a harvester with a compressor in alignment with the packers, and below them, near the tail of a stationary receiving platform, working as a resistant to compact the gavel, the platform having one wide slot, through which the teeth move the wisps against overhanging rods. 2. SAME. Letters patent No. 223,812, for improvement in harvester machines, so that the grain may be freely delivered by means of a swinging side elevator, conveying the grain, properly straightened, to the receiving table, so that it can be bound at the middle, are not infringed by a harvester with a swinging platform, and an elevator which drops the grain on an inclined board, with slots through which packing arms operate to compact the grain, with an endless apron, which is not connected with the harvester elevator. The twenty-first claim of letters patent No. 266,913, relating to mechanism for compressing the bundle of grain just before tying, in connection with a spring link for relieving the binding mill from strain, and obviating breakage when the grain is no longer compressible, is not infringed, in view of the former state of the art, by a device furnishing an elastic yielding of the compressor, which is not of the peculiar construction set forth in the claim. 4. SAME. In view of the prior state of the art, claims Nos. 3, 4, 9, and 10, under letters patent No. 272,598, dated February 20, 1883, whereby an automatic grain-binder regulates the position of the band in the gavel so as to place the gavel in its proper position, relative to the length of the grain, without the attention of the operator, must be limited to the peculiar construction of mechanism as set forth in the specifications by which this result is obtained. 5. SAME-ANTICIPATION. The combination of the swinging butt-adjuster, arms, and a board pivoted to the adjuster, as set forth in claims 20 and 21 of letters 272,598, is anticipated by the "Heller Butt-Adjuster," used on harvesters in 1878 or 1880. 6. SAME. Letters patent No. 251,147, dated December 20, 1881, describing a mechanism for raising, lowering, and fastening the grain platform of a harvester, is anticipated by a patent issued to one Bacon in 1838 for lowering, fastening, and raising windows. In Equity. Bill for infringement of patents. Banning & Banning and B. F. Thurston, for complainant. NELSON, J. Three suits are brought by William Deering-two against the Winona Harvester Works and others, which are consolidated, and the other one against the McCormick Harvesting Machine Companyfor the infringement of certain letters patent for improvement in harvesters, or harvester binders. They are heard together. In controversy, there are involved with the McCormick Company letters patent No. 191,264, issued May 29, 1877, to John F. Steward; No. 223,812, issued January, 27, 1880, to William F. Olin; No. 266,913, issued October 31, 1882; also No. 272,598, issued February 20, 1883, to John F. Steward. The same patents are involved in the suit against the Winona Company, and, in addition, letters patent No. 278,639, issued May 29, 1883, and letters patent No. 301,190, issued July 1, 1884, also letters patent No. 251,147, issued December 20, 1881, to John W. Webster. The first two patents involved in the Winona Company's suit, and not in the McCormick case, relate to the "knotter" by which the cord is held around the bundle of grain; and counsel consent that a decree may be entered against that company for an infringement of these patents, so that they are eliminated from this controversy. The complainant and the McCormick Company are extensive manufacturers and competitors throughout the grain-producing regions of the world, and by their efforts have stimulated the inventive genius of that class of persons interested in the improvement and development of practical machinery for cutting and binding grain. The Winona Company was a new 'enterprise, inaugurated under the superintendence and management of men formerly in the employ of the complainant, and manufactured a machine in its general features and operation like those introduced and sold by the complainant, and also by the McCormick Company. Steward Patent, No. 191,264, dated May 29, 1877.-Defenses: No infringement, and want of novelty and patentability, and estoppel. It is remarkable that no machines are in use, at the present time, manufactured precisely according to the specifications, claims, and design of this patent; and, although the complainant is the owner, he does not construct the machine sold by him like the drawing of the patent. The charge is made that both defendants infringe the fifth claim of this patent. This claim is as follows: "The combination of the toothed arms, p, slotted receiving platform, H, and the fixed spring arms, u, v, for compacting the gavels, substantially as specified." It is necessary to a proper understanding of this claim, and the devices involved, to look at the mechanism of the machine described, and for which the patent was granted, and its purposes, in the light of the existing state of the art. This patent is denominated "Improvement in Grain-Binders." The patentee, in his description, says: * * * "I have invented new and useful improvements in harvesters. The object of this invention is to improve the construction of grain harvesting and binding machines; and its nature consists in providing a device for compacting the grain ready for binding; -* * * in providing devices for retaining the cut grain in proper position at all times while being forced into the binding wire; and in the several parts, and combination of parts, hereinafter set forth and claimed as new." The claim, in connection with the drawings and model exhibited, calls for a slotted receiving platform, toothed arms arranged to pass through it and protrude, so as to engage and force forward the flowing grain, and spring arms fixed directly opposite the slots in the platform, operating as resistants to the arms moving forward through the slots, and thus the packers or arms, with the springs directly opposite, acting as resistants, compact the gavel while it is being formed, and finally press it through |