
    Julius A. Hayden v. The United States.
    
      On the Proofs.
    
    
      The claimant, a loyal citizen and resident of Fulton County, Georgia, is the owner of a qiiantity of cotton, which is taleen from his possession by the United. States authorities, sold, and the net pi-oceeds paid into the Treasury. On the approach of General Sherman’s army he removes his family, consisting of females, further south to aplace of safety, the fighting between the Union and rebel forces being around his house. It is impossible for him to eary Ms family th/rough the military lines to the protection of the United States.
    
    A loyal person surrounded "by contending armies is not bound to abandon Ms family; and removing’ it to a retired place of safety, tboug'b. witMn tbe Confederate lines, is not aid and comfort to tbe rebellion.
    
      
      Mr. George Taylor for tbe claimant:
    We submit that tbe testimony clearly establishes, first, that the claimant was the owner and in possession of the one hundred and eighty-seven bales of cotton; secondly, that said cotton was taken possession of by the officers of the army of the United States; and thirdly, that this cotton was regularly turned ■ over to the agents of the Treasury of the United States, by whom it was sold, and the proceeds paid into said Treasury.
    We have shown that from one hundred and eighty to one hundred and ninety bales of cotton, belonging to claimant, went into the hands of Captain Hade, and Hade says that he shipped all the Atlanta cotton to Captain Brown. The Secretary’s second report shows that Captain Brown received the cotton from Hade, through Captain Wetherell, transportation agent, and also that the same cotton was toned over to Assistant Special Treasury Agent Charles A. Fuller, by whom it was forwarded to the agent at Cincinnati, where it was sold and the ■ net proceeds duly paid into the Treasury of the United States.
    In the return of the Secretary of the Treasury in the case of J. H. Fain, the net proceeds of the cotton taken at Atlanta, Georgia, and skipped during the months of September, October, and November, after the deduction of the loss of one hundred and one and one-half bales lost in transitu, is stated at $359 94 per bale.
    It was thought that there was more cotton claimed by parties in Atlanta than the government took at that point; but by the Secretary’s return in Fain’s case, it appears that there is still one hundred and sixty-five bales unclaimed, even after deducting one hundred and eighty-three bales of sea-island cotton; but the return says, that all the cotton taken was upland. Thus, by deducting the one hundred and eighty-three bales sea-island cotton, there would remain three hundred and forty-eight bales of cotton unclaimed.
    
      Mr. Ii. S. Sale, special counsel of the Treasury, for the defendants:
    The proof on the part of the claimant, as to the quantity of his cotton which was actually received by the government, is very vague and indefinite. The only evidence of ownership or title is that of Healy, of the purchase of Holland & Austell, of about one hundred and fifty bales; and if tie court should be of the opinion that seizure of a greater number of bales is proved, it is submitted that the recovery cannot go beyond the amount to which he proved title.
    On the question of loyalty, the proof on the part of the claimant falls short of the requirements of the act of 12th March, 1863, and wholly fails to conform to the additional requirements of the statute of 26th June, 1863. This last statute contains additional substantive requirements of proof which the claimant must establish. Effect must be given to the new and additional words in this statute in relation to “ aid or comfort to persons engaged in said rebellion.” Affirmative evidence must be given by the claimant to negative the presumption, created by this statute, of aid and comfort both to the' rebellion and persons engaged in it, derived from voluntary residence within the rebel sway.
    Ponder discloses a fact of the strongest significance to falsify the claimant’s professions of loyalty; that Hayden, during the siege at Atlanta, went south to his farm in southwestern Georgia, for the purpose of carrying his family there for protection. The farm on which claimant lived was but three miles from Atlanta. The Union army was before that city. Nothing appears in the case to show that he could not, with the same ease and freedom from obstruction, have brought his family within the protection of the Union arms instead of retreating before them, had Ms sympatMes led Mm in that direction.
   Loring, J.,

delivered the opinion of the court:

The petitioner claims the net proceeds of one hundred and eighty bales of cotton, and the court finds the facts to be—

That the petitioner was a citizen of Fulton County, in the State of Georgia, and in September, 1864, owned and was possessed of one hundred and forty bales of cotton, which were taken from his possession by the United States and sold by them, and the net proceeds, amounting to the sum of $60,531 60, paid into the Treasury.

The evidence shows that one hundred and forty bales of upland cotton were first brought into Atlanta from the neighboring farm of the petitioner, and that subsequently another lot of thirty or forty bales of loose cotton was brought to the city by tbe United States. But a majority of tbe court are of opinion that it is not proved that tbe proceeds of tbis second lot ever came to tbe Treasury of tbe United States. Captain Hade testifies distinctly that it did not.

Tbe petitioner was a loyal citizen, wbo never gave aid or comfort to tbe rebellion or those engaged in it. He opposed secession and was known by Union men and rebels as loyal to tbe United States, and was persecuted for bis loyalty. It was proved, that on tbe approach of General Sherman’s army be bad removed bis family south, but bis family consisted of females, and tbe object of tbe removal was their security, as tbe fighting between tbe Union and rebel forces was round tbe petitioner’s bouse, and it was impossible for him to carry bis family through tbe military lines so as to seek tbe protection of the United States. We do not think a loyal person, surrounded by contending armies, bound to abandon bis family, and that carrying them to a retired place of safety, though within tbe Confederate lines, aid or comfort to tbe rebellion.

We are of opinion that tbe petitioner is entitled 'to recover tbe net proceeds of one hundred and forty bales of cotton, amounting to $50,581 60.  