
    FOSTER’S CASE. Erastus S. Foster, Administrator of Erastus Foster, vs. The United States.
    
      On the Proofs.
    
    
      The claimant’s intestate takes horses from Kansas to Motile, Alabama, for sale. Finding it diffieull to dispose of them, he remains there until after the breaking oat of the rebellion. Subsequent to August, 1861, he makes several attempts to return to Kansas, but is prevented by the rebel authorities. He sells his horses 
      
      and invests the avails in cotton. When the city of Mobile is captured by the Union forces, Ms cotton is seized, taken to New York, sold by the Treasury agent, and the net proceeds paid into the Treasury. Me continues loyal through the war.
    
    IVliero a citizen of a loyal State tafees liorsos from Kansas -to Mobile, Alabama, to sell, shortly before the beginning of the rebellion, and being-unable to sell them until after the breaking out of tho rebellion, remains to dispose of them, and is subsequently prevented from returning to Kansas by the Confederate authorities, and sells his horses and invests the avails in cotton, continuing loyal through the war, the transaction is not inviolation of the Non4ntercourse act, July 13, 1861. (12 Stat.L., p. 256, § 5.) To remain in an insurrectionary State under such circumstances is not an act of aid or comfort to the rebellion under the Abandoned or captured property act. (12 Stat. L.,p. 820.)-
    
      Messrs. Cooley c§ Clarice for tlie claimant:
    The claimant, as the administrator of his deceased father, Erastus Foster, seeks to recover in this action the net proceeds of seventy-one bales of upland cotton of which the intestate was the owner, and which were seized in Mobile by the Union authorities after the .capture of that city in 1865. The record shows that the claimant is a citizen of the State of New York, and that his father, during- the late rebellion, and up to the time of his decease, was a citizen of Kansas.
    The claimant and his intestate were, in fact, citizens of loyal States, but- the father went South for a temporary purpose, intending to return to his home in Kansas as soon as his business was disposed of. He went to Mobile in the winter of 1860, believing, as the whole North believed, that the political excitement would die away, and there would be no attempt to destroy the Union. He left his family behind him, thereby retaining his citizenship and residence. The claimant and his father, being citizens of loyal States, the legal presumption is in favor of their loyalty to their Government. As to the claimant, that piresumption must prevail until it is rebutted by- some evidence tending to prove dis-loj-alty in fact. As to the father, the presumption of loyalty arising from his citizenship of a loyal State being destroyed by the fact that he was a temporary resident of a State in rebellion, we proceed to show that he remained in the South involuntarily; that he made several efforts to escape, but failed; and that, while he was thus a prisoner in the South, he rendered no aid, comfort, or encouragement to those engaged in rebellion, against his lawful Government.
    
      Mr. E. 8. Sale, special counsel of the Treasury, for the defendants :
    Claimant’s only title to the cotton seized is the result of a long series of illicit trading with the enemy, and the purchase itself was in violation of the non-intercourse acts.
    Claimant was a citizen and resident of Wyandotte, Kansas, during the whole war. lie left that place in December, 1860, leaving his family there, where they remained during the war, himself going to Mobile to sell a lot of horses, and intending to return to his family. The horses were undisposed of when the war broke out, and there was nothing, so tar as appears, to prevent his then returning home. And failing to procure a satisfactory price for his horses, he remained at Mobile, making no effort to leave until July or August, 1861, when he attempted to go abroad on a blocka'de-tunner, but was prevented by the capture of the vessel on which he expected to sail, by the Federal cruisers.' His own statement was, “ that the war broke out before he had disposed of his horses, so that by the time he had disposed of his horses it was next to impossible for Mm to get home •, that his life would have been in danger had he inade the attempt, otherwise he would have returned to his home as soon as Ms horses toere disposed of?
    
    It is evident, therefore, that claimant, a citizen and resident of a loyal State, voluntarily remained within the control of the rebels from mercenary motives only.
    The cotton he bought as late as March, 1864, and up to-that time he was evidently actively engaged in business.
    As to the duty of men in the position of the claimant at the breaking out of the rebellion, see The William Bagaley, (5 Wallace* 377, 408.)
    The fact that at a later day, after delaying, for business purposes, long after the war had become flagrant, claimant made an unsuccessful attempt to leave the rebellious section, does not relieve him.
    Upon title so derived, claimant can have no standing in this court.
   Casey, Ch. J.

delivered the opinion of the court:

Some time in December, 1860, the claimant’s intestate, a eiti-izen of Kansas, went to Mobile, in the State of Alabama, with a lot of horses for sale. Finding it difficult to dispose of his property, he was detained until after the breaking out of the rebellion. He then disposed of his property and made several attempts to leave and withdraw from the rebel territory, and to return to Kansas, where he had a family residing.

In these attempts he was frustrated by the rebel authorities and forces, and was compelled to remain against his will during the war. While so detained at Mobile, the claimant turned his horses' into a livery stable, and so used them at livery for some time. The first attempt made by him to leave the confederacy was in July or August, 1861.

Having sold his horses, he in 1864 invested the proceeds in cotton, and stored it in Mobile, where it was found upon the capture of that city by the Union forces. It was seized, shipped to New York, and sold there by the agent of the United States, and the proceeds are in the Treasury of the United States. Within a few days after the capture of Mobile, the claimant’s intestate left Mobile, returned to his home in Kansas, and where he died some time afterward.

The United States by their counsel interpose the defense, that the facts detailed constituted on the part of claimant’s intestate a violation of the non-intercourse laws, and t-hatthex>roperty was liable thereby to capture and forfeiture.

The claimant produces evidence which satisfies us that his in-' testate rem ainéd involuntaril yin the confederacy during th e war; that so soon after breaking out of hostilities as he could dispose of his property, he made bona, fide efforts to get away and was prevented. It does not appear that he wished or atteinjíted to carry on any illicit or interdicted trade with the enemy. Being there against Ms will, we do not see why he might not invest the worthless money of the confederacy, which he was obliged to take in payment of his property, in anything which would have value when the rebellion should be suppressed. He made no attempt to carry it through the blockade or the lines, and we do not therefore think this comes within the prohibitions of trading with the enemy. He also proves that in sentiment and conduct he remained loyal and true to the United States during the rebellion, and that so soon as released by the capture of the city, he left and returned to his home.

Under all the circumstances, we think the claimant entitled to recover, and ñnd in his favor for the proceeds of seventy-one bales of upland cotton, at $183 42 per bale, amounting to the sum of $13,023 82, and for which sum judgment is to be entered in favor of claimant.

Nott, J.,

dissenting:

The claimant’s intestate, on whose loyalty the case depends, went into a country threatening to rebel, and voluntarily remained after civil Avar had broken out. He made no attempt to return to his residence in the loyal States until July, 1861. The purpose for which he remained Avas merely to procure better prices for his horses. It does not excuse the act. The case comes within the decision in the case of The William Bagaley, (5 Wallace R., pp. 377, 408,) where Mr. Justice Clifford well defines the duty of a citizen when war breaks out: “ If it be a foreign war, and he is abroad, he is to return without delay; and if it be a civil Avar, and he is a resident in the rebellious section, he should leave it as soon as practicable, and adhere to the established government.”  