
    NUGENT’S CASE. Terence Nugent, Jr., v. The United States.
    
      On the Proofs.
    
    
      The defendants produce a poll-list kept by the inspectors of election at Savannah, purporting to contain the names of voters who voted ata Presidential election under the Confederate government. Onthe list appears the name of “T. Nugent, Jr.” There is no other evidence that the claimant voted. On his side the evidence of loyalty is satisfactory.
    
    The name “ T. Pfugent, Jr.” is not identical with “ Terence Xugent, Jr.; ” and where the defendants fail to connect the latter person with an election for president of the confederate government hy any other evidence than apoll-list hearing the former name, and the claimant satisfactorily proves his consistent adherence to the United States, the doiibt of identity should he adjudged in his favor.
    
      Mr. O. A. Seward and Messrs. 'Hughes, Denver & Peolc for the claimant:
    The claim in this case is for the proceeds of ten-hales of upland and seven hales of Sea Island cotton, in all seventeen bales, seized by the United States after the occupation of Savannah by General Sherman, and afterward shipped to New York, and there sold on government account.
    
      Tbe testimony taken proves tbe ownership of seventeen bales of cotton, but of these fourteen are stated to be upland and three only Sea Island, (see testimony of H. J. Thomasson.) This witness states that the cotton belonged to claimant; that each bale was marked with his initials, and these all were stored in his cellar on the corner of Broughton and East Broad streets. The ownership is further proved by tbe testimony of James McDonald, who states that he made the purchase of ten bales of the upland and the three bales' of the Sea Island on joint account of himself and claimant; that he sold his interest in the Sea Island early in the war to claimant, but that he still holds his half interest in the ten bales of. upland. Of the remaining four bales of upland, no proof of ownership is furnished beyond that contained in the deposition of Thomasson above cited. The seizure was made by Thomasson on the 7th of March, 1865, under orders from Colonel Hansom, United States quartermaster, in whose employ said Thomasson then acted.
    It only remains to prove the loyalty of the claimant.
    The witnesses testify upon this point, and state in general terms that claimant was regarded as a Union man; that he expressed to his friends great hostility to the rebellion and desire for the success of the Union cause, and that dually he escaped from the confederacy and came North. •
    Ownership, loyalty, and seizure being proved, a judgment is respectfully asked from this court in favor of claimant.
    
      Mr. Alexander Johnston for the defendants:
    I. Proof of claimant’s title wholly fails. It is only supported by the depositions of himself and of James McDonald, Jr., both whose depositions must be stricken out under the statute.
    Striking out these dex>ositions, nothing remains but the evidence of Nugent’s x>ossession at the time of seizure, 7th March, 1865, more than two months after the capture.
    Should McDonald’s, evidence be allowed to stand, it can only be on striking out the claim for the entire ten bales in which his interest and Nugent’s were joint, and then but three bales Sea Island remain as proved in Nugent’s ownershix>.
    II. The proof of claimant’s loyalty is insufficient.
    He voted for Davis and Stevens for president and vice-president of the Confederate States in 1861. (See poll-list, put in evidence by defendants.) ■
    
      Tbe evidence of claimant’s witnesses as to loyalty is weak in itself, and certainly insufficient to overcome this evidence.
   Drake, Oh. J.,

delivered the opinion of the court:

The only contested point in this case is the loyalty of the claimant, and that is disputed only on the alleged ground that on the 6th of November, 1861, at Savannah, Georgia, he voted for electors of president and vice-president of the so-called Confederate States of America.

The sole evidence relied upon to prove that he did so vote is a deposition of Levi S. Hart, taken on the 7th of January, 1868, .in the case of De Witt & Morgan v. The United States, to which is appended a paper which the said Hart says was one of the three original lists of that election,” and concerning which he makes the following statement:

As far as my knowledge goes, I believe this to be a correct list of those who voted at that election. Nobody’s name was put upon that list but those of parties who appeared and voted. The ballot had to be handed to one of the presiding officers, and part of the time, in my turn, I was one of those. ”

Upon cross-examination he said that he was not present at the polls during all the time they were open, but u was present off and on,” and that11 only a very small portion ” of the names on that list was in his handwriting.

No question was asked him in regard to the claimant in this case having voted at said election; but in the list is found written, “T. Nugent, Jr.”

Upon this evidence we'are asked to find that the claimant voted at that election, though it appears that in the examination of witnesses in this case in October, 1870, the government tried to prove the fact by them, and failed to do so, and though the evidence is sufficient to establish to our satisfaction the claimant’s consistent adherence to the government of the United States through the period of the rebellion.

Were the fact sufficiently established that he did, at said election, deposit a ballot in the ballot-box, it would not prove the contents of the ballot, and in the absence of such proof, we could not presume that it was a vote for electors of president and vice-president of the rebel Confederacy.

But, were it shown to have been such a vote, the question would then arise wbetlier it was a -vote voluntarily given. The evidence has been so fully and so often before us of the violent state of rebel feeling in Savannah, in the year 1801, that we should, in the case of a man whose loyalty to the United States was otherwise proven, be disposed to presume such a vote to have been given under the stress of the surrounding pressure of traitorous and rebellious elements and circumstances, at least so far as to require some countervailing evidence of the voluntary character of the act. We think the claimant, even if shown to have given such a vote, entitled to the benefit of this presumption.

But are we authorized by the mere fact that the name u T. Nugent, Jr.,” appears in that list to find the fact to be that Terence Nugent, Jr., the claimant, was the person there meant, and that he did actually give the vote ? We think not. The names are not identical. T. Nugent, Jr., is not necessarily Terence Nugent, Jr., and the doubt in regard to identity should be solved in favor of the claimant, who is otherwise shown to have been loyal to the United States, and upon whom the government has failed to fix the act by any direct iiroof, though it made direct efforts to do so.

Upon the whole evidence, therefore, we' do not find that the claimant did vote at said election for electors of president and vice-president of the so-called Confederate States; and the case being on the other points sufficiently established, judgment will be rendered in his favor for $2,273 34.  