
    KOHNS’S CASE. Lazarus Kohns v. The United States.
    
      On the Proofs.
    
    
      The claimant, a loyal citizen in Georgia, buys cotton Having the rebellion; he tells various persons that he bought it for his brother in New Torlc, to whom he is largely indebted; he declines to sell 'it, and says he will talce the risk of trying to save it. He also attempts to send the bills of the cotton lo his brother, but xcithout success. He brings this action 'for the use of his brother, and subsequently files an instrument which recites that the cotton in question was purchased “for the sole benefit of the said David Holms, and at Ms cost' and expense.” But the cotton before capture is stored by the claimant in Savannah in his own name, and after capture is reported and registered as Ms. The loyalty of both brothers is established.
    
    I. Where cotton is purchased and stored before capture by and in the name of one residing -within the insurrectionary district, and after capture is reported and registered as his, he is the proper claimant in an action for the proceeds under the “Abandoned or captured property act,” (12 Stat. L., p. 820.) And although he bought it with the intent of holding and transferring- it to his brother, (a loyal citizen residing within a loyal State,) and with funds belonging to his brothor, the latter would not be deemed to bo the owner under the previous decisions of the court. The distinction between this case and that of Bernheinusr, ante p. —, pointed out.
    II. The captured or abandoned property cases are without precedent, the time within which they might have been brought was brief, the statute ’upon which they rest is remedial, and the court will not allow a just claim to be defeated if upon any legal theory it can bo sustained.
    
      Messrs. Ghipman c£ Sosmer for the claimant:
    This is a claim for the proceeds of certain twenty bales of sea-island cotton and four bales of upland cotton, seized by the United States at Savannah, G-eorgia, at the time that city was captured by the Union forces.
    1. The cotton in question was received at Savannah on account of consignment made by L. Kohns, in July and August, 1864, and was stored in what was known as Lower Hydraulic Press Warehouse, and was among that seized by General Sherman.
    It was subsequently to seizure entered upon the register of captured cotton.
    This cotton was shipped by claimant to Savannah, from Columbus, Georgia, where he resided.
    
      This cotton was purchased by Mr. Lazarus Kohns, with the view of applying it on a debt he owed his brother, David Kohns, and was stored at Savannah to abide the fate of the war, in the faith that Savannah would be the first of the rebel seaports to fall, and the cotton would thus be saved.
    2. The claimant, and Ms brother, David Kohns, whom he desires shall receive the benefit of this suit, were both loyal citizens of the United States during the rebellion.
    David Kohns resided in New York City during the war, and had a loyal character which pannot be questioned.
    Lazarus Kohns resided in Columbus, G-eorgia, during the rebellion. For proof of his loyalty, see testimony.
    3. As to proceeds of this cotton, they cannot well be given, as the quantity seems a variable, rather than a constant one. The amount will be shown upon the trial, from the latest reports of the Treasury Department.
    
      Mr. E. S. Sale, special counsel of the Treasury, for the defendants :
    The claim is for the proceeds of 20 bales upland cotton, alleged to have been captured at Savannah.
    ■Within the principle established by this court in the case of Bernheimer, it is submitted that the title to the cotton in question was in David Kohns, and that the suit could only be main-, tained by him.
    The paper, Exhibit A, put in evidence by the claimant, distinctly recites that the cotton in question was purchased for David Kohns, for his sole benefit, and at his cost and expense; and undertakes to cure the defect of parties by providing that David was to have the benefit of any judgment in this suit.
    It is plain that the action should have been brought in the name of David Kohns. The case is every way much stronger as to ownership than that of Bernheimer, where the court held that the purchase by Lippman carried title at once to the Bern-heimers.
    Claimant’s proof of loyalty is deficient.
    It appears that he was actually in the field in military service for some eight days in the year 1864. The witness says, to be sure, that “every person was forced to go out;” but no facts showing what constituted the alleged force are in evidence, and this court lias bad ample occasion to observe how cheap are the opinions of witnesses as to what constitutes force.
    It is evident that he was constantly engaged in illegal traffic through the lines; had such relations with blockade-runners as to enable him to negotiate for passage by those desiring to pass through the blockade, doubtless for pay; and his whole course of life at the South was evidently that of a mercenary and unpatriotic trafficker.
   Nott, J.,

delivered the opinion of the court:

This is an action brought to recover the net proceeds of twenty bales of sea-island and four bales of upland cotton, captured at Savannah, amounting, as is alleged, to $10,100.

The court is satisfied as to the claimant’s loyalty; he married during the war into a loyal family at Columbus, Georgia; he aided refugees to escape from the South; he expressed loyal sentiments, and no act of aid or comfort to the rebellion is shown except his serving in a fire company, which we are satisfied was involuntary. His brother, David Kohns, for whose benefit the suit is really brought, was also loyal, and during the rebellion a citizen and resident of New York.

The suit is peciiliar and differs somewhat from any which has gone before it. The learned counsel for the defendants insist that it is precisely like the recent case of Bernheimer, and under the ruling in that case this should have been brought by David Kohns. But it sppears that the claimant purchased the cotton in his own name, and shipped it to Savannah, where it was stored on his own account. After capture it was also reported as his. These facts are sufficient to take the case out of the rule in Bernheimer. If the action had been brought by David Kohns, we should hold that he could not recover.

The facts relied upon by the special counsel of the Treasury are these: The claimant spoke to his father-in-law and others of having purchased cotton for his brother in New-York. He was advised to sell it, and said, “ I icill not do it. I ivrote a long time ago that I had this cotton for Mm, and if I sell it for Confederate moneyi and get it exchanged for greenbacks, it will not bring anything, and I will talce the rislc of trying to save it.” He also sent, by one attempting to escape into the United ¿States lines, 11 cotton receipts for cotton deposited at Savannah,” but these receipts did not. in fact, pass the lines, and were destroyed by the bearer in the fear and expectation of being searched by the Confederates. It also appears that the brother, David Kohns, spoke to a friend of his then having or owning cotton in Savannah. And finally, there is an instrument, in the nature of a release, executed by the claimant, which recites that the cotton in question was purchased by him ufor the sole benefit of the said David Kohns, and at his cost and expense.”

These facts may be reconciled with the others;, the declaration to his father-in-law does not show a legal property in David Kohns, nor more than an interest'’on the part of the claimant that the property legally vested in himself should some clay be transferred to his brother. The cotton receipts were not sent until December, 18GI, and may not have been sent until after the capture of Savannah. The assertion of David Kohns, that he owned cotton in Savannah, was not made until January or February, 18G5, when the capture was made, and the transfer might have taken place. The release was not executed until the 23d January, 1SGÍ), which was long after this suit had been brought.

The equitable interest of David Kohns the claimant was properly disclosed in his petition. David Kohns has' brought no action, nor in any way alleged an adverse interest. The petition will estop the claimant from ever denj-ing that the suit was instituted for the use and benefit of his brother. These captured and abandoned property cases are without legal precedent; the time within which they might have been brought was brief; the most skilful practitioners were divided as to the proper manner of conducting them ; the statute up>on which they rest is remedial. It would ill become the court to allow a just claim to be defeated for defect of form, if, upon any legal theory,it can be sustained.

The judgment of the court is that the claimant recover the net proceeds in the Treasurj^ of twenty bales of sea-island cotton captured at Savannah, being $231 79 a bale, and of four bales of upland cotton, being $175 33 a bale, amounting in the aggregate to $5,337 12.  