#### Joseph Mintz & Simon Fass *v.*The United States.

*On the Proofs.*

*The claimants are citizens of foreign hirth, one naturalized before the rebellion, and the other after the commencement of this*suit, *but before the passage of the Act July*27,1868, *(15 Slat. L., p.*243J *providing that no alien shall maintain an action in the Court of Claims against the United States sinless the same**472*right is allowed by his government to citizens of the United States. Claimants prove a greater amount of property owned and stored by them than is shown to have been seized and sold by the United States.*

I. A claimant naturalized after "bringing Ms action and before tlie passage of the *Act of July*27, 1868, (15 Stat. L., p. 243,) is not affected by its provisions, and can maintain an action in the Court of Claims.

II. When there is a discrepancy of irroof "between the amount of property stored by the claimants and the amount captured by the defendants, judgment will be for the less amount in an action under the *“Abandoned a/nd caphwred property act.”*(12 Stat. L.,p. 820.)

*Messrs. Cooley & Clarice*for the claimants:

The claimants in this case are naturalized citizens of the United States, and seek in this proceeding to recover the net proceeds of fourteen bales of cotton of which they claim to have been the owners, and which were taken from their possession at the time of the capture of Charleston, S. C., by the United States military authorities, in February, A. D. 1865.

The return from the War Department is as follows:

“March 10. Reports thirteen bales cotton,No. 489King street, thirteen bales cotton in Saint Bartholomew Parish, (7) bales at Kisher’s plantation, and six at Willis’s plantation.

“March 16. One bale No. 489 King street. Found, March 17, stored at custom-house, fourteen bales upland.”

What, then, are the claimants entitled to recover? As to ten bales of upland and one bale of sea-island, there can be no question but that these claimants were the owners in good faith. As to the other three bales, we admit, the evidence is not so explicit, but coupled with the return from the War Department, the court, we think, will be warranted in allowing them to the claimants also.

*Mr. H. 8. Hale,*special counsel of the Treasury, for the defendants:

The claimants are both naturalized citizens. *Mintz*was naturalized in 1860, and Fass 17th April, 1868, after the filing the petition in this cause, but before the passage of the act of 27th July, 1868, precluding aliens from maintaining suit in this court.

It is submitted to the court whether that act affects the standing of the claimant, Fass, in this court. The counsel for the -defence is unable to say that it does.

*473No sufficient proof of title appears in tlie cause. Mere possession at tlie time of tlie capture of Charleston, it is submitted, is insufficient. In the confusion and uncertainty incident to a state of war and the capture of a city, to allow possession alone as evidence of title would open the door to endless frauds by claimants, especially in view of the fact that all cotton of rebel owners was undoubtedly forfeited.

The registration book shows no cotton registered in the name of the claimants. It is reported and registered in the name of S. Fass. It is described as fourteen bales upland, and embraces seven bales at Bisher’s plantation, six bales at Willis’s plantation — both in St. Bartholomew’s Parish — and one bale at 489 King street.

It is submitted that the claimants prove neither title nor possession to any of the cotton claimed, unless, possibly, and by the aid of conjecture, to the one bale in King street.

Milligan, J.,

delivered the opinion of the court:

The petitioners, Josejffi Mintz and Simon Fass, are merchants trading under the style and name of “Mintz & Fass,” in the city of Charleston, in the State of South Carolina. They are both naturalized citizens, and residents of the State aforesaid; and claim thirteen bales of upland, and one of sea-island cotton, which they allege were seized by the military forces of the United States soon after the surrender of the city of Charleston in I860.

The essential facts found by the court, in this case, are as follows:

1. The claimants are shown to be of foreign birth; Mintz was a subject of the Emperor of Bussia and Fass of Austria. The former was admitted to citizenship in the United States on the 11th day of October, 1860, and the latter on the 17th of April, 1868. They are shown to have taken but little interest in the political affairs of this country. They were quiet men, and their loyalty is not proven to have been very active; but it is distinctly shown that they gave no aid or comfort to the rebellion, and when they spoke or acted in reference to this subject, their language and acts were uniformly in favor of the Union and the success of the Federal arms.

On the whole proof, we are satisfied that they meet the re*474quirements of tbe statute, and as loyal citizens are entitled to maintain this action.

2. In 1861-’62 tbey purchased of the firm of “ Búrke & Sons” ten bales of upland cotton, and paid for it at the time of purchase, which was shipped to them at Charleston, and stored in their yard on King street.

In 1862 they bought one bale of sea-island cotton, of one Messeroy, who testifies that they paid for it, and that he saw this cotton, with some eight or ten other bales, just before the evacuation, in their back yard on King street.

Other cotton is shown to have been purchased by the claimants, but we are unable from this record to trace it with sufficient accuracy to enable us to say that it actually belonged to the claimants, or that it was seized and sold by the United States.

3. The quantity of cotton stored in the claimants’ yard ■ on King street is distinctly shown to have been seized by the United States military forces, and carried off in opposition to the claimants’ will.

Some difficulty is presented in attempting to identify the cotton purchased by the claimants with that which is borne on the registration books of the United States, under the name of one of the claimants. On the 10th of March, 1865, this ten bales ajre registered as found at No. 489 King street *•,*and on the 16th one bale, which make the fourteen bales claimed in the petition. This cotton is all described on the registration books as “upland cotton.” In this respect, as well as the number of bales registered, there is a slight discrepancy between the registration and the proof. But it cannot be doubted, from the whole record, that the cotton seized in King street was the identical cotton owned by the claimants and stored in their back yard j and although the number of bales irroven to have been purchased and deposited at that place falls three bales short of the number borne on the registration, we are satisfied it is the same cotton, and feel bound to limit the recovery to the number of .bales clearly established as owned by the claimants.

There is no doubt as to the ownership of the eleven bales, and for that amount the claimants are entitled to recover.

It will be observed that the petition in this case was filed on the 21st of June, 1867, and that Fass, one of the claimants, and member of the firm of “ Mintz & Fass,” was not natural*475ized until tbe 17th of April, 1868. How this fact affects the status of Fass iu this court is submitted to our consideration by the defendant’s counsel. It is clear, prior to the passage of the act of the 27th of July, 1868, that aliens resident in the United States were capable of acquiring, holding, and transmitting movable property, in like manner as our own citizens, and they could bring suits for the recovery and protection of that jiroperty. (2 Kent’s Com., 62-63, margin.)

The act of July 27,1868, (15 Stat. L., p. 243,) which by its second section prohibits aliens from suing in this court, for any act done, or omitted to be done, by officers or agents engaged in the administration of the act of Congress, known as the *"Abandoned or captured property act,”*unless the government of which such alien is a subject accords to citizens of the United States the right to prosecute claims against such government in its courts, was not passed until after the naturalization papers had issued to Mr. Fass. No disability rested on him at the date of filing his petition; and his naturalization papers having regularly issued before the passage of the act of 1868, he is in nowise affected by its provisions, and can maintain this action.

Judgment will be entered in favor of the claimants for the net proceeds of the sales of eleven bales of cotton, which we find to be $1,443 20.