The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-23

to duty no doubt had their influence with his
commander, upon whose recommendation ne
condition that he should make good the time lost by
ms desertion 1t was not pretended that his honor
70 pay during the period Of his absence from tho SER
vice, or would have dispensed with the forfeiture Of
pay prescribed by the army regulations had any pay
pcen due al the time He only claimed subsequent
pay and the bounty. after serving tho full period Of his
enlistment and ths additional time lost by his do
sertion In this case the petitioner deserted nj time
whom tho war WAS at It's height and no palliaton
pronerei for tho offence II any could possibly exist
He kept Of the thus out OF danger dur
ing the severest period OF the war and was only
turned 10 his company under arrest. And though no
was restored 10 duty II with tho forfeiture OF his
pay and allowances Tor tho entire period OF enlist
ment
It does appear from the record before US whether
this forfeiture imposed by order Of tho commander
OF the forces from which no deserted by the judg
ment OF court martial forfeiture Of pay and allow
ance up 70 the tmo Of deserton follow from the G2n
dition Of the contract Of enlistment which Is for faith
iul service The contract an entirety and " service
Tor any portion OF the time Is crminasy omitted tho
pay ana allowance for faithful service are not earned
The fact OF desertion is sufficiently shown by tho
muster rolls OF his company and upon this evidence
the forfeiture OF pay and allowances will BE- presumed
TO have been imposed by the sentence Of a court
martial The bounty claimed Is included In the allow
nncos forfeited and cannot therefore, DO recovered.
Such IL the uniform ruling OF the Department, sus-
tanned by the decision OF tho Attorney General Mr..
Justice Field delivered the opinion
fcaed-rhomas Slater smith, Esther A. This wife, and
James s. jenkins vs. William yodges, assignee OF
Doukrupt-Appen
Circuit Court for the Eastern District OF Pcnnsyl-
vaniaThe law OF this Is too well settled 70 adj
init OF doubt In order TO defcnd . settlement made
by husband upon his wife II must be intended to do
fraud existing creditors, or creditors whose
rights expected shortly TO supervene, or
creditors whose rights may and do super
hazards or business In which he Is about
TO engage upon Others of honestly holding his
subject TO tho chance OF those adverse results
which all business enterprises liable Fraud IL
always a question Of fact 70 DO determined by the
before Tho view which take OF this case renders
II unnecessary consider the objections urged by tho
counsel Of tho appellants against tho reference tho
master, tho exceptions TO the masters reports aud
tho questions raised by tho demurrcrs 10 tho original
and the amended bill.
Passing by these subjects and looking only 20 tho
merits OF the controversy two points to DO examined
arise. They involve questions OF TACT which must DO
solved In tho light OF the evidence found In the record
The burden OF proof rests upon tho appellee
l. What was the pecunary condition Of the bankrupt
when inc property IN question was bought at tho sale
under execution and conveyed by tho Sheriff 10 Esther
A. Smith?
The date Of tho transaction was the I'd Of June, 1852
The amount paid was 81, 450 The property consisted
Of a dwelling house and storcroom, which she had
leased In the year 1852 The $3.50 pcr ycar.
She and her husband occupied the premises up to The
time or the sale. Sho kept dry goods store and
millinery and dressmaknx establishment In her own
name She was cmincntly successful The bill AYERS and
admits that ut tho tmc OF the purchase OF tho property
she had realized profits 10 the amount OF So O00 and
that the property was paid Tor out OF this fund There
is proof in the record to the effect In conduct
ing her business she paid promptly, and docs not APP
pear that she then subsequently, owed anything
which Is unpaid The husband has paid all his debts
except two For those he had given extension notes hav
Ing short times rum and they paid maturity.
This investment for tho benefit OF the wife hcvcr
challenged by any creditor OF the husband the and
1t Is not now challenged IN behalf OF any creditor whose
debt subsisted then accrued for considerable
aitcrward. Under tho circumstances the investment
was moderate in amount, proper TO be made and we
think, liable to no legal objection to its validity.
The testimony to be considered In connection with
the next point throws backward light, which is also
favorable the wife with respect to this part OF the
case
2 What was the pccuniary condition OF tho bankrupy
when ho extinguished tho ground rent by which tho
property was cncumberedY IL was good, that no
could obtain all the credit In trudc advances his
bank he wished The whole transaction therefore
honest and valid.
Mr.. Justice Swayne delivered the opinion.