
    Simon Gerstmann v. The United States.
    
      On the Proofs.
    
    
      The claimant, in Savannah, purchased forty-jive hales of cotton at 10 o’clock, at night two days prior to the capture of the city. The vendor is not shown to have been faithful to his allegiance to the United States.
    
    
      I. A purchase of cotton from a person not shown to have been loyal, made at an unusual hour for the transaction of business, and only three days before the capture of the city where the purchase is made, both vendor and purchaser being informed of the immediate approach of the capturing forces, must be held to be in fraud of the “Abandoned or captured property act." (Act 12th March, 1863, 12 Stat. L., p. 820.)
    II. "Where property purchased is in immediate peril by capture, and would become lawful booty, a party should not be permitted to recover the net proceeds under the “Abandoned or captured property act." (Act 12th March, 1863, 12 Stat. L., p. 820.)
    Messrs. Cooley and Clakke for claimant:
    The claimant seeks to recover the net proceeds of 140 bales of cotton, (138 upland, and 2 of sea-island,) which were captured by the United States forces at Savannah, in the month of December, 1864, and by the military authorities turned over to a treasury agent, sold, and the proceeds paid into the United States treasury.
    The principles of law involved in these cases were settled by the decision of this court, at the December term, 1866, in the case of Margaret Bond v. The United States. It was there held that, in cases brought under section 3, act of March 12, 1S63, the claimant must prove:
    1st. That he is the owner of the property seized.
    2d. That he is entitled to the proceeds.
    3d. That he has never given any aid or comfort to the recent rebellion.
    “If he proves these things,” says the court, “ the law says expressly he shall receive the residue of such proceeds after the deduction of the lawful expenses attending its disposition and sale.”
    The degree of evidence required to establish these propositions— and especially the last — is laid down by the court with great strictness,' but with justice also. We need not specially refer to what was said on this point; because, first, the matter is fresh in the mind of the court; and second, the gist of the whole is, that the proof must be to the satisfaction of the court.
    The records of the government show a credit to him of 138 bales upland and 2 hales of sea-island.
    The claimant was a merchant, and had during the war accumulated and kept 140 hales of cotton, all bought for the legitimate purpose of having something to live upon.
    He owned the property bona fide, as we have seen; it was taken by the government and sold, and the proceeds are in the treasury ; if, then, he has never in any manner given voluntary aid or comfort to rebels, or aided the late rebellion, he is entitled under the law to the net proceeds of- his cotton.
    He was an old soldier, and had the veneration of a true soldier for his flag and his country. His history, in his own words, is :
    “I served five years in the regular army of the United States; I was discharged on the 8th day of February, 1859, after a faithful service of five years; I was three years and a half in Florida, then was in the Kansas war, then went to Utah; I belonged to company E, second artillery; I was discharged at Fort Leavenworth; I commenced my residence here in 1859; as soon as I was discharged I went to New York, and was there advised to come out here, and came as a clerk; I have been loyal to the United States and the flag all the time; I never aided the rebellion in any way; during the war, I organized a church of my faith with my own money, in order to get appointed reader, so as to keep out' of the- rebel service; our church was organized with that motive; I suggested I would fix up a church, pay rent, gas, and other expenses, and they would elect me reader, and that way I kept out of the service.”
    By the deposition of Francis Robinson, of New York, it is shown that all the vessels having on board the Savannah cotton, including the claimant’s, arrived safely with cargoes in New York; that the cotton was sold, and the proceeds placed in the treasury.
    The average per bale for upland, net, after deducting all expenses, was $190 47. The average for sea-island per bale was $215 97 gold. This reduced to currency at the then rate, forty per centum, makes. $303 32
    Expenses per bale. 15 60
    Leaving net, for sea-island. 287 72
    
      Claimant, then, is entitled to :
    138 bales upland, at $190 47'. $26, 760 14
    2 bales sea-island, at $207 72 —. ,675 44
    Total. 27, 335 58'
    This the United States have had since 1865, and as the trustee for this loyal claimant. It is no hardship to pay over this sum, without interest, after having its use for two and a half years, without further deductions.
    The Assistant SOLICITOR for the defendants:
    The claimant in this case seeks to recover the proceeds of 140 bales cotton, which were taken from his possession by the United States military authorities under General Sherman at the time of the capture of Savannah, Georgia, in December, 1864.
    This suit is brought here under the provision of the third section of the act of Congress approved March 12, 1863.
    The claimant has adduced testimony to establish the fact that he, did not give aid or comfort to the rebellion.
    We shall not discuss the evidence which this claimant has offered upon this question. The court can judge of its sufficiency, and determine whether it is sufficient to meet the rule laid down by the court in the case of Margaret Bond v. The United States. The United States have not been able to prove against the claimant any act which would convict him of giving aid and comfort to the rebellion. We must leave this question, therefore, to be decided upon the prima facie case which this evidence-establishes.
    The claimant stored 59 bales of this cotton with E. C. Wade, on the 20th of March, 1863. He had 36 bales of cotton stored at E. Robinson’s store. In regard to the purchase of these 36 bales, the, witness testifies as follows :
    “ The 36 bales at Robinson’s' store I bought from different country people. I took and paid for it in trade, and have no bills of it, as generally country people took no bills for cotton. I bought none of' this cotton to screen it from confiscation by the United States authorities. I knew of no law confiscating such property. I bought it in good faith, to sell again and make money.” (Claimant’s records,, p. 17.)
    
      The remainder of this cotton, 45 bales, was purchased by the 'claimant from Aaron Wilbur “ two days before the Union army came in.” There are suspicious circumstances about this transfer. It was made in the night-time, and in evident haste. It will hardly be claimed that, as to this portion of the claim, the claimant had acquired his title through a loyal source, although the person from whom he derived it is himself a claimant in this court for the proceeds of cotton taken from him. The case, as to these 45 bales, falls within the rule laid down in the case of GuTliton v. The United States, decided •at the present term of this court.
   Peck, J.,

delivered the opinion of the court:

The petition of Simon Gerstmann represents that he is a naturalized ■citizen, a resident of Savannah, in the State of Georgia. That in the month of January, 1865, he was the owner and in possession of 140 bales, part of which was sea-island and a part upland cotton, all of which was seized and taken possession of by Lieutenant Colonel H. O. Eansom, acting under authority of the War Department of the United States. That this cotton was afterwards sold by authority of the United States government and the proceeds paid into the treasury. He asks a judgment for the proceeds.

That this claimant, to maintain his fidelity to the United States, was driven to unusual expedients, and had serious struggles in his ■efforts, this record well establishes. In speaking as a witness he gives •this history of himself:

“ I served five years in the regular army of the United States. I was discharged on the 8th day of February, 1859, after a faithful service ■of five years. I was three years and a half in Florida, then was in the Kansas war, then went to Utah. I belonged to company E, 2d artillery. I was discharged at Fort Leavenworth. I commenced my residence here in 1859 ; as soon as I was discharged I went to New York, and was there advised to come out here, and came as a clerk. I have been loyal to the United States and the flag all the time. I never aided the rebellion in any way; during the war I organized a ■church of my faith with my own money in order to get appointed reader, so as to keep out of the rebel service ; our church was organized with that motive. I suggested I would fix up a church, pay rent, gas, and other expenses, and they would elect me reader, and that way I kept out of the service; the members of that church raised money too •to keep each other out of the service. I gave many thousand confederate dollars to keep men. of our faith out of the rebel service. I got. many out of here by buying them through. I gave some Union prisoners clothes ; there was a lieutenant here confined, an Israelite, who was lying in the hospital here very sick; I gave him some clothes and a $500 bill when they sent him away; indeed, I aided Union prisoners whenever I had an opportunity.”

Cross-examination by Amherst W-. Stone, counsel for the United States :

“ Question. Your church was not organized to worship the God of' your fathers, but to keep you out of the army ?
“Answer. It served the latter purpose; since the war I have built a new synagogue; whatever the motive, it was and is a place where God is worshipped, and not a single man of our congregation ever was. in the rebel service. Can you understand that 1”

David R. Dillon, a witness for claimant, says :

“ I have known the claimant six or- seven years. I knew him during the war; saw him after and talked with him about the war; from, what I know of him and heard him say, he wanted to keep out of the-service, and the first thing I knew he had on a white cravat and was a minister of his church, and kept out in that way. I never, to my knowledge, knew him to help the rebellion, or subscribe to confederate loans ; from what I know of him and heard him say I can state under oath I always believed him to be loyal to the United States and. opposed to the rebellion. I talked with him because I believed him to be a Union man; he talked openly to me and I to him when together in private; we had to exercise the utmost caution. He lived on Bryan street and then moved to St. Julian street; he was buying-cotton both times. I put him on his guard before be became a minister, that the men were trying to catch him. I told him ‘ you look out, they are after you and will catch you;’ next day he had the-white cravat.”

Several other witnesses give such evidence in his behalf as to satisfy us that he was not guilty of having given aid or comfort to the recent. - rebellion.

It is proved that Gerstmann was the owner of 140 bales of cotton at the time of the capture of Savannah, and the registry of captured cotton kept by the United States officers shows that this number of hales were taken from him by them. This cotton was subsequently sold by the United States and the proceeds paid into their treasury.

Unforunately for Mr. Gerstmann, he purchased 45 bales of this cotton after 10 o’clock at night, but two days before the capture of' ■Savannah, at a time when he himself says “ it was then certain the Union army would come here; they were thundering at the gates already;” and it is not shown that the person of whom he purchased was not a rebel, and that it would not on the capture of the city have been proper booty.

His case, so far as these 45 bales are concerned, would have worn a much better aspect had it been made to appear that they had been purchased from a person who was himself in a condition, had he retained the cotton, that he could have recovered the proceeds in his own name.

In the petition it is averred that a part of the cotton of which the proceeds are claimed was sea-island cotton, but the proof does not sustain the allegation; so far as this record shows the cotton was upland cotton. The registry of the officers of the United States denominates all the cotton as upland except 37 bales, which is registered as cotton without any description. The claimant will therefore only receive a judgment for the proceeds of 95 bales of upland cotton, amounting to the sum of $18,094 65, which we are informed by the treasury would be the net proceeds of that number of bales of upland cotton.  