
    SILVERHILL’S CASE. Silverhill, for the use of Schiffer & Co., v. The United States.
    
      On the Proofs.
    
    
      The petition alleges that Silverhill was the owner of cotton which he sold to Schiffer Co. after capture, hut before removal. It is verified by the assignee, the allegation of assignment is not proven, and no warrant of attorney from the assignor is filed.
    
    Where a suit is brought in the name of the assignor of a’claim, for the use of the assignee, the assignor must he connected with the case, by verifying the petition, or filing a warrant of attorney, under Eule II, or loroving the assignment.
    
      Mr. A. L. Merriman for tbe claimants:
    This is a claim for proceeds of 8 bales of cotton taken at Savannah in the early part of 1865.
    This cotton was purchased by Messrs. Schiffer while the same was in the quasi possession of the vendors, although nominally and practically in the possession of the United States, the same having- been reported to the military authorities, in compliance with the published notices issued to the inhabitants of Savannah$ and although perhaps the legal title to such cotton did not pass by such sales, the same having been taken by the United States under claim of right, yet, as the property was not the subject of confiscation, the said S. Schiffer, as survivor of J. Schiffer & Co., is entitled to such proceeds.
    The amount of such proceeds, as last reported by the Secretary, is $165 57 per bale for upland cotton, and is for S. W. Silverhill, 8 bales upland, $1,324 56.
    
      B. S. Hale, special counsel of the Treasury, for the defendants:
    The claiin is for the proceeds of sis bags and two bales of upland cotton, captured at Savannah.
    The petition alleges that, “ prior to the removal of said cotton by the United States,” Silverhill being indebted to Schiffer & Co., sold the cotton to them, and that they are now the “ proper legal owners” of said cotton. It contains averments of the loyalty of Silverbill and of tbe different members of tbe firm of J. Schiffer & Co.
    _ Tbe petition on file is verified by tbe oatb of one of tbe Schiffers. Tbe printed copy fnrnisbed to tbe special counsel of the defendants purports to be verified by tbe oatb of J. JB. Stewart. No power of attorney from Silverbill appears on tbe files in tbe case.
    Tbe suit being brought for tbe use of Schiffer & Co., judgment when rendered will be for their use, and may be discharged by them. Their title must therefore be proved, especially in tbe absence of all evidence that Silverbill has ever assented to this suit, or that hiS claim to tbe cotton in question will be cut off by judgment and payment to Scbiffer & Co.
    No evidence appears in tbe case of any sale to Scbiffer & Co., nor anything connecting them with tbe case, except their aver-ments in tbe petition.
    Tbe averment in tbe petition that tbe sale was u prior to tbe removal of tbe cotton,” leaves it doubtful whether it was before or after the capture. If before, of course tbe action should have been in tbe name of Scbiffer & Co.' In any event, Scbiffer & Co. cannot be allowed to draw tbe proceeds of this cotton from tbe Treasury without evidence of their right.
    Nor can tbe recovery be bad on tbe present proofs and allegations in tbe name of Silverbill merely. Tbe suit is not brought in that aspect, but solely for the benefit -of Scbiffer & Co.; and tbe averment of tbe sale prior- to tbe removal of the cotton, without further specification as to time, would prevent a recovery by Silverbill if tbe suit stood in bis name only.
   Nott, J.,

delivered tbe opinion of tbe court:

This is an action brought under tbe Abandoned or captured property act, in tbe name of Simeon W. Silverbill, a citizen of Savannah, for tbe use of Samuel Scbiffer, surviving partner of tbe firm of J. Scbiffer & Co., merchants in New York.

Tbe petition alleges that Silverbill was tbe owner of certain captured cotton, and “ that while said cotton was in the possession of the United States, and before the sale thereof, he sold the same for a vahiable consideration to J. Schiffer <& OoP Tbe allegation is not proven, nor is there any testimony offered to sustain it.

Moreover, tbe petition is verified by Samuel Scbiffer, and no warrant of attorneytobim from the claimant, Silverhill, has been filed.

There is nothing therefore before us to connect Silverhill with Schiffer or with the case. Schiffer is the party who has really brought the action, and he shows neither an equitable right in himself nor an authority to sue in the name of Silverhill.

By the decision in Cate’s Case, (3 C. Cls. R., p. 64,) it was determined that these captured property cases come within the prohibition of the Act 26th February, 1853, (10 Stat. L., p. 17,) forbidding transfers and assignments of claims against the United States. Butit was earlier determined that thecourt could save the equitable rights of an assignee by allowing the suit to be brought in the name of the assignor, the recovery to be by the latter to the use of the former. Jackson’s Case, (1 C. Cls. R., p. 260.) Nevertheless it is necessary to connect the assignor with the case. His authority or recognition may be shown by the assignor himself verifying the petition, or by the warrant of attorney required under Bule II, or by proving the transfer.

But under no theory could this action, as it now stands, be sustained j for there is an absolute want of authority to prosecute it in the name of Silverhill, and a total absence of testimony to show an interest or equity in Schiffer. Properly the suit should be dismissed. But it has been intimated that .the requisite authority can be produced, and, a second action being now barred by lapse of time, the case will be remanded to the docket and'continued for the term.  