Holt v. Holt , 59 Me. 464 ( 1871 )

Dickerson, J.

Assumpsit to recover certain money of the defendant, wdiicb tlie plaintiif received as bounty, and delivered to tlie defendant, when he enlisted into the military service of the United States.

The case was tried by the presiding justice with the right to except in matters of law. The justice found, as matter of fact, that the plaintiif enlisted, when a minor, with his father’s consent, and sent S594 of his bounty to the defendant, who is his father, and received the money; that the plaintiif deserted; that when of age, and before action brought, he demanded the money of the defendant, who refused to refund the same. This finding of the justice is conclusive upon the parties.

The justice ruled, as matter of law, that the action can be maintained for the amount demanded and interest, and the defendant excepted.

Bounty-money, received by a minor upon his enlistment into the military service of the United States, is a gift to him, and not wages, and an agreement by him to give such bounty to his father or master for permitting him to enlist is voidable by such minor on the ground of infancy. The demand of the money, and the bringing of this action show an election by the plaintiif to treat such agreement, if any there was, as void. Mears v. Bickford, 55 Maine, 528; Kelley v. Sprout, 97 Mass. 169.

The crime of deserting tlie army of the United States is exclusively an offense againSt the government of the United States, and is punishable only through the courts of the United States having jurisdiction thereof. Courts-martial of the United States have exclusive jurisdiction of this offense, and must find the party charged with being a deserter guilty thereof, before “ he shall be deemed and taken to have voluntarily relinquished and forfeited his rights of citizenship,” under the act of congress, c. 79, § 21, approved March 3, 1865.

Both desertion and conviction for that offense are necessary to render a person liable to suffer the penalty imposed by that statute. The justice found the desertion only; the other material fact is wanting. The statute, therefore, becomes inapplicable, and the ruling of the justice was correct. State v. Symonds, 57 Maine, 151. From the view we have taken of this case, it is unnecessary for us to determine the effect that forfeiture of the rights of citizenship, under the act of congress cited, would have upon the right of a party subject to that disability, to maintain an action in the courts of this State. It will be time enough to settle that question when it properly arises. Exceptions overruled. Judgment for plaintiff ' for five hundred and ninety-four dollars and interest from Aug. 23,1864-

AppletoN, C. J.; Kent, Walton, BaReows, and Tapley, JJ., concurred.