The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-06-14

ted or pending against his person or properly bsors hs
acceptance Of tho pardon. Another condition Va mat
the petitioner should not by virtue Of the PARDON
claim any property tue proceeds OF any property
which had been sold by the order Judgment or aecfee
OF court under the conlscation laws OF the United
States The District Court refused the application,
bat the Circuit Court appeal reversed us oraef ana
allowed the petition to be hied The Dis'nos CcuIs
held, II would that the conditions attached 70
the pardon precluded tho petitioner from seeking 70
obtain tho proceeds OF his property but the Circuit
Court WINS OF the opinion that the effect OF PARDON
was restore recipient all rights ot property
lost by the offence pardoncd, unless the properly
had by judicial process become vested 10 Other pe,,
the PARDON ITSELF that until an order OF distribution o.
the proceeds made in these cases or the proceeds
actually paid into the hands Of the party entitled
iniormer to them, into the Treasury oi
the United States, they were within the control OF the
Court aud that vested right 10 the proceeds had 40
crued so as 10 prevent the pardon from restoring
TO the petitioner The decision IS given IN substance
in the following syllabus pardon by the President
the offence pardonod, unless The properly has by judi
cial process become vested Ia otner persons,
subject exceptions prescribed by tho pardon ITSELF
condition annexed TO q pardon, that the recipient
shall not by OF claim any properly or tho pro-
Goods OF any property sold by the order Judgment OF
decree Of a court under the connscaon laws OF the
United States. does not preclude bin from APPLYING 70
the Court Tor the proceeds OF money bonus
mortgage conscatcd the proceeds beng collected ~
officers OF the Court in part by voluntary payment ~
oblgors and In part by sale Of the lands mortgaged
The condition only intended TO protect purchasers
ut judicial sale dccrced under the connscatlon laws
from any ella OF the original owner for The property
sold or the purchase money. The proceeds OF prop
crty con6scatcd paid under The control
OF the Court until order for their Distribution -
made or they are paid INTO the names OF the n0rmst
States Where moneys belonging 10 the registry Of
the Court withdrawn from Il without authority o.
law the Court can by summary proceedings compel
their restitution; and any one entitled TO the moneys
may apply to tho Court by petition Tor delivery OF
them to him. Decree TO be modified and affirmed MI.
Justice Fold delivered the opinion.
ASSIGNMENT FOR BESEFiT OF cREDiroks-vAMD WHEN
BEFORE PROCEEDINGS IN BANK
RuPTcY AGAINST THE DEBToR.
No. 5l6 Frederick J. Mayor and Seth Evans, as
sgnecs OF al plaintiffs in error VS.. Ajax Helman as
sgncc bankruptcy, ct aL-Error TO the Circuit Court
for the Southern district Of OhoThe plaintiff IN the
Court below 10 assignee IN bankruptcy Of bogen ana
others, appointed In proceedings instituted against
them in tho District Of the United States Tor the
Southern district oil Ohio; the defendants are assgnees
OF the same PARTIES under the assignment laws OF tue
State OF Ohio and the suit s brought 10 obtain
possession OF property which passed TO the latter under
the assignment to them The facts as disclosed by the
case briefly On the Sd OF December, 1873 at
CINCINNATI ohid George Bogcn and Jacob Bogep, com
posing tho firm oil g. J. Bogcn, and the same Parties
with Henry Muller comprising The firm OF Bogen n
Son, by deed executed OF that date individually and
partners assigned certain property held by them,
including that in controversy, TO three trustees IN
trust the equal and common bonent OF all their
creditors The deed delivered upon ts execution,
and the properly was taken possession OF BY the as
sgnecs. BY the law of Ohio, IN force ut tho time,
when assignment OF properly IS made 70 trustees
for the benefit Of creditors is the duty OF the trus
tees within ten days after the delivery Of the assign
mcnt to them, and before disposng Of any OF the
property, appear before the Probate Judge OF the
county III which the assignors reside, produce. tho
original assignment or copy thereof and ME tire same
in the Probate Court and enter into an undertaking
payable to the State in such sum and with such sure
ties as may be approved by the Judge, con-
ditioncd for the faithful performance OF their
on the 13h Of December 1873 within the prescribed
days, appeared before the Probate Judge of the
proper county in Ohio, produced Tie original assign
rnent and filed the in the Probate Court One Of
the trustees having declined TO act another ono was
named his place by tho creditors and appointed by
the Court Subsequently the three gave an undertake
ing with sureties approved by tho Judge, in the
OF $500,0o0 Tor the performance OF their duties aud
then proceeded with the administration OF tho trust
under the direction of the Court
on the 22d OF June Of the following year. more than
SIX months after the execution OF the assignment the
petition in bankruptcy against the lnsolvents was nled
in the District Court Of the United States initiating
the proceedings which the plaintiff was appointed
right TO the possession OF the property IN the hands
OF the defendants under tho assignment TO them.
The validity Of this claim depends, as mat
ter Of course upon the legality OF the assignment
and this question il is hold that an assignment ny
debtor OF his properly TO trustees for the
equal and common benefit OF all his creditors IS NOT
fraudulent and when executed six months before pro-
ceedings in bankruptcy taken against the debtor
is not asssiable by the assignee in bankruptcy sub
sequently appointed and the latter Is not entitled 70
the possession OF the property from tho trustees Re
versed. Mr. Justice FIELD delivered the opinion.
MANDAMus.-IT WILL NOT ISSUE TO ENFORCE JUDO
MESr WHICH DID NOT pETEnMISE NArERlAL ISSUES
PRESENTED
French, petitioner-Petitlon Tor mandamus French
sued Edwards and others tho possession Of
certain lands alleging that he was The owner Ia lee
and that the defendants unlawfuly withheld the pos
session from him. The defendants answered, setting
up several dcfences, and, among Others me follow
ing:-L Want OF title in the plaintih Statutes oil
limitations g. In instances title in themselves.
The case was submitted to the Court without jury,
and upon the trial there special finding OF iacts
effect that the defendants were IN the adverse
possession OF the property that the plantn onco held
the ttlo but that the 9th OF january 1868 and be-
tssf sufqIn
certain instrument of writing, copy OF which was
given Upon these facts the Court found, AS matter
OF law legal title passed out Of the plaintiff by
revert on the failure conditions II contained, but
still renamed and vested in the grantees. Judg-
given in favor Of the deicn iants upon this
ruling. At the last term We decided that upon tho
facts found the Court should have presumed
that the grantees In the instrument OF January
had reconveyed, thus reinvcsting the title
in The plaintiff, and adjudged accordingly. The judg
ment for this reason reversed and the case re-
mandcd, sswh instructions 10 proceed IN conformity
with the opinion" (See tho reported, n Wall,
l47) Upon the filing Of the mandate in the Court bc
low the case was set down for new trial French
now moves here for mandamus directing the Circuit
Court enter judgment IN his favor Tor the recovery
OF the lands upon the facts found The finding brought
here for review special and met only part OF the
issues III the conclusion OF law 10 which the Court
came was correct tho othor issues were immateriaL
The case disposed oil without reaching them. We
have however, determined that the facts found were
not sufficient TO justify the conclusion reached and
withdrawing the finding. In effect we have decided
that the Court erred not proceeding TO try the other
issues. Our action only prccludes that Court from nd
Judging in iayor OF the defendants upon the special
facts found and sent here for our opinion In all
other respects 1t Is at liberty TO proceed in such man
ncr as according to Its Judgment justice may require
The petition is denied. The Chief Justice delivered
tho opinion