#### Herman Bulwinkle *v.*The United States.

*On the Proofs.*

*The claimant is an alien, residing in Charleston. Se gives no aid or comfort to the rebellion or persons engaged therein. During the rebellion, and between the 16th of January and the l<tth of February,*1865, *he buys cotton. Charleston is captured on the 17th of February,*1865. *After buying his cotton, and before bringing action, he declares his intention of becoming a citizen of the United States. Se is naturalized on the 20th day of January,*1868, *after action is brought. The defendants plead alienage under the Act of %7ih July,*1868, (15 *Stat. L., p. 243.)*

I. A naturalized citizen, at the time of the passage of the *Act July 27th,*1868, (15 Stat. L., o. 276,) is entitled to all the rights and immunities conferred hy law upon such citizens, including the right to sue in the Court of Claims.

II. Cotton purchased in Charleston on the 6th and 13th days of February, 1865, while the army of General Sherman is approaching that city, which it occupied on the 17th of that month, is, in the absence of all other evidence, [not purchased in good faith; and under the *Act 17th July,*1862, (12 Stat. L., p, 589,) is in fraud of the rights of the United States, and no right of property therein vested in the claimant hy such purchase.

III. Purchases of cotton of rebels, made in good faith, and for a valuable consideration, and without the intention of depriving the United States of their right of seizure and condemnation, are valid; and the right of property is thereby transferred to the purchaser, who, on proof of loyalty, is entitled to recover the net proceeds of the same, under the *“Abandoned or captured property act,”*(12 Stat. L., p. 820.)

*Messrs. Owen & Wilson*for the claimant:

This is one of the cases chosen by the United States as a representative of a class, and one of the questions sought to be settled is whether an alien residing in the insurrectionary dis*396tricts, having property taken by the United States military officers under the act of March 12,1863, the proceeds of which are in the Treasury, and who, after the filing of his petition, becomes naturalized as a citizen of the United States, can maintain his status in this court, and recover those proceeds without proof that the government of which he was lately a subject accords to citizens of the United States the right to sue that government in its courts, as required by section 2, act of July 27, 1868.

After the suppression of the rebellion he declared, before the proper court, his intention to become a citizen of the United States, and on the 20th day of January, 1868, he was duly admitted to citizenship by the United States District Court for the district of South Carolina.

The plaintiff’s cotton was seized and taken possession of, in common with all other cottons in Charleston, upon its surrender, February 18, 1865, shipped to New York, sold, and the proceeds placed in the Treasury.

The defendants have pleaded that the claimant is an alien — the plaintiff has denied it in his replication. This is one of the issues. What proof is adduced by the defendants to prove the truth of his plea ? None whatever. The second section of the act under consideration provides for this plea, and then says *“*if the fact be sustained by the proof it shall be a conclusive bar to the action; provided,” &c.

*Mr. It. S. Sale,*special counsel of the Treasury, for the defendants:

The claimant claims the proceeds of twenty-nine bales of sea-island cotton and fourteen bales upland, seized at Charleston on the capture of that city, 21st February, 1865. He alleges in his petition that he is a citizen of Hanover, Germany; that he has declared his intention of becoming a citizen of the United States. He puts in proof his certificate of naturalization, issued by the United States District Court for the district of South Carolina, 20th January, 1868, subsequent to the fiiing of the petition, but before the passage of the act of 27th July, 1868, excluding aliens from a standing in the corn't.

1st. It is submitted that the proof of the title as to the Patterson and Barkley cotton is wholly deficient. No proof of *397tbe actual purchase, or payment for the same, is made. The transactions took place after the capture of Savannah, ranging from the 3d of January to the 13th of February, only eight days before the capture of Charleston.

Such an alleged purchase, supported only by proof of a written bill of sale, without any proof of payment, or of good faith in the transaction, is presumptively colorable and fraudulent.

The time of the alleged purchase is an important *element;*every possible inducement to collusive and colorable transfers of cotton in Charleston, after the fall of Savannah, existing in the strongest degree.

“The claimant seeking to recover the proceeds, must show, not only that he purchased the property, but he must satisfy us that he did so in the regular course of his business, and not in fraud of the statute, or with a view of speculating upon the justice of the government.”

Such is the doctrine of the court, established in the case of *Margaret Bond,*(2d O. Cls. B.., 532.)

Dnder this rule the claimant’s title to all the cotton in question, except possibly the ten bales purchased of Gaillard & Co., certainly fails.

2d. As to all this cotton, the defendants also insist that the loyalty of the prior owner, subsequent to the 23d September, 1862, must be established, to sustain the claimant’s title against the provisions of the act of 17th July, 1862.

At the time of the commencement of the suit the claimant was an alien. He was naturalized 20th January, 1868.

It is submitted to the court whether, under the 2d section of the statute of the 27th July, 1868, he has any standing in court.

Casey, Ch. J.,

delivered the opinion of the court:

The claimant prefers his petition to this court to recover the net proceeds of twenty-nine bales of sea-island and fourteen bales of upland cotton, belonging to him, captured at Charleston, South Carolina.

The United States defend upon the following grounds:

1st. That the claimant was an alien at the time of the suit brought, and cannot maintain this claim, unless he brings himself within the proviso to the second section of the Act of 27th July, 1868. (15 Stat. L., p. 243.)

*3982d. That tbe cotton was purchased in violation of the provisions of the *Act July*17, 1862, (12 Stat. L., p. 689,) and therefore void, and vested no property in him.

The claimant is a native-born subject of the kingdom of Hanover. But before the bringing of this suit, in 1867, he had filed his declaration of intentions to become a citizen of the United States. And on the twentieth day of January, A. JD. 1868, he was duly naturalized in the United States District Court, at Charleston, South Carolina. The certificate of the same, properly certified, is presented in the record.

The record further shows that on January 16, 1865, the claimant bought of P. 0. Gaillard *&*Co., of the city of Charleston, ten bales of sea-island cotton, and proves that he paid for it, and that it was delivered to him at the time. He also presents receipted bills from J. L. Patterson, of the following dates and amounts: ' .

> January 19,1865, 6 bales sea-island cotton.

> « 25, “ 2 “ « « «

> “ 30, “ 3 “ “ “ *u-*

> February 6, *“*1 *" "*“ *u*

> *u*]_3 *u*4 *a a u u*

January 3,1865, of Bufus Barkely, thirteen bales of upland cotton.

In pursuance of the general order of the United States military authorities after their occupation of Charleston, he reported to the proper officer, twenty-nine bales of sea-island and fourteen bales of upland. And the officer in charge of the captured cotton there returns twenty-nine bags of sea-island and nineteen bales of upland, as received from or belonging to the claimant, that came to the possession of the United States.

And we find that the claimant was the *bona fide*owner of twenty-four bales of sea-island cotton and of thirteen bales of upland cotton, purchased and paid for on and before the thirtieth day of January, A. D. 1865.

And we further find that the five bales of sea-island cotton, purchased by the claimant from J. L. Patterson upon the sixth and thirteenth days of February, A. D. 1865, and while the army under General Sherman was approaching the city of Charleston, which it occupied upon the 17th of the same month, was not purchased in good faith, but in fraud of the rights of *399tbe United States, and that no right or property thereto vested in the claimant.

We farther find that the cotton belonging to the claimant, after having been seized by the military authorities of the United States, was turned, over to an agent of the Treasury Department, and by him was sold, and the proceeds thereof are now in the Treasury of the United States. And that this claim for the proceeds of the same, was preferred in this Court, within two years after the suppression of the rebellion, under the act of Congress approved March 12,1863.

We further find, that at the commencement of the war of the rebellion the claimant was an alien, being a subject of the Kingdom of Hanover; and that he gave no aid or comfort to the rebellion or to persons engaged therein during the continuance of the same.

We further find that the net proceeds of the claimant’s cotton, after deducting all proper charges and expenses, amounted to. the sum of seven thousand four hundred and eight dollars and ninety-six cents.

Under the facts of this case the plea of alienage cannot avail the defendants. At the time of the passage of the act creating the disabilities, the claimant was already a naturalized citizen, entitled to all the rights and immunities conferred by law upon such; among the rest the right to sue in this court. There is no fair or just interpretation or application of either the words, spirit or intention of the Act of July 27,1868, (15 Stat. L., p. 243,) that takes from him or debars him of such right. The interesting questions therefore raised by the learned discussions of counsel on the hearing of this case do not properly arise in this claim. We therefore forbear to either discuss or express any opinion upon the questions involved, until they shall become necessary and material in the determination of some cause.

There is no proof of the actual status and sentiments of the persons from whom the claimant purchased the cotton. Both by their residence within the insurrectionary territory, as well as by the express provisions of the 3d section of the act of June 25,1868, they are presumed to be hostile to the United States, until the contrary is proved. And this circumstance is set up,by the special counsel for the United States, as showing that their sales of the cotton, the proceeds of which are in controversy in this court, conferred no title on the claimant. These sales *400having been made after the 23d September, 1862, it is contended are void by the express provisions of the 6th. section of the act of July 17,1862. It is insisted that the property of such persons as did not accept the benefits proffered in that law, by ceasing’ to aid and encourage the rebellion, was *ipso facto*forfeited, after the sixty days limited in the act, and the President’s proclamation issued thereon the 25th July, 1862; and that the subsequent sale to the claimant was null and void, and conferred no title upon him.

We have heretofore held, in effect, that though the act rendered the property of persistent rebels liable to seizure and condemnation, after the time limited in the act and proclamation, and that all subsequent sales might be avoided at the instance of the United States, by a seizure and condemnation of it, as the property of the original offending owner, in the mode provided in the 7th and 8th sections of the act of July 17,1862; but that the act did not *proprio vigore*divest the title of the original rebel owner, and vest it in the United States, but required seizure and condemnation to work such transmutation. That the United States, by omitting the proceedings necessary to complete their title, under the forfeiture, and receiving it as the captured or abandoned property of the purchaser, under the act of 1863, have waived their right to the forfeiture under the act of 1862; and that by its seizure as the property of the claimant, and its subsequent sale, without judicial proceedings, they have rendered the necessary proceedings under the act of 1862 impracticable; and that by thus] recognizing the sale and transfer, they have created a trust in favor of such loyal owners as come within the requirements of the act of March 12,1863.

We have had some doubts and division on this question. But that it may be set at rest by the Supreme Court of the United States, we hold —

That though P. C. Gaillard *&*Co., J. L. Patterson, and Rufus Barkely, from whom the claimant bought the cotton, the proceeds of which are in controversy in this case, were respectively persons who were engaged in giving aid, countenance, and encouragement to the rebellion, before and at the time of their respective transfers to Bulwinkle of such cotton, yet that so far as such sales were *bona*fide, for a valuable consideration, and without intention to deprive the United States of tffeir *401right of seizure and condemnation, they transferred the right to the property to the claimant; and on proof of loyalty as required by law he is entitled to recover the proceeds in this case.

We accordingly enter judgment in favor of claimant for the sum of seven thousand four hundred and eight dollars and ninety-six cents, ($7,408 96.)

LoejnXx, J., dissented from so much of the opinion a.s holds that pinchases made by the petitioner were void, because General Sherman’s army was advancing towards Charleston.