
    KOESTER’S CASE. Louis F. Koester v. The United States.
    
      On the Proofs.
    
    
      The claimant, a citizen of Charleston, during the rebellion, to avoid conscription, procures an appointment in the arsenal. Sis service there is malting percussion caps, his ordinary business that of a shopkeeper. He pays largely for the appointment, receives little or no pay, and evades work as much as possible. With this exception his loyalty is abundantly shown.
    
    
      Whore one residing within tlie insurrectionary district enters a Confederate arsenal as a workman, Ms business being that of shopkeeper, solely to avoid conscription, and while there evades serving so far as possible, receiving no pay, and in fact paying for the appointment, it will he regarded as involuntary aid, if his loyalty otherwise bo fully established.
    
      Mr. D. W. Cooley, for the claimant:
    Louis F. Kóester, a naturalized citizen of the United States and a resident of Charleston, South Carolina, seeks to recover in this proceeding the “net proceeds” of 107 bales of upland, 15 bales of sea-island, 200 pounds loose sea-island, and 40 pounds loose upland cotton, which were reported to and taken possession of by -the United States authorities March 30 and May 16, 1865, at Charleston, South Carolina, under the act of Congress, approved March 12, 1863.
    The fact that Mr. Koester did, ‘'during the rebellion, consistently adhere to the United States government, and did give.no aid or comfort to persons engaged in said rebellion,” is most clearly established by the testimony of undoubted Union mien.
    
    In opposition to the evidence in favor of the-loyalty of the claimant, the government have submitted testimony on two points: First, to show that claimant had been engaged in running the blockade. Second, that he had rendered voluntary service to the rebels by working in their arsenal. They have completely failed to establish either proposition.
    We believe that the evidence presented in this case will be found conclusive as to the claimant’s loyalty — his never having given aid or comfort to rebellion — his ownership of the cotton and his right to the proceeds thereof — and we respectfully ask for him a judgment of this court for the net proceeds of 107 bales upland, at $131 20, 15 bales sea-island, at $237 67, and for 206 lbs. loose sea-island and 46 lbs. loose upland cotton, in proportion.
    
      Mr. R. 8. Hale, special counsel of the Treasury, for the defendants :
    Claimant voluntarily engaged in the service of the Confederate government, in the manufacture of ammunition for use in the rebellion, at the Charleston arsenal.
    This service was not compulsory, and no evidence is adduced showing it to be so. It was direct aid to the rebellion.
    The manufacture of arms and ammunition is no less an important element of carrying on the war than their use on the held.
    The service of the claimant in this branch of the rebellion can only be excused by the same considerations which would excuse his actual service in the held. The only excuse offered for him is that lie feared that he might be conscripted. Anticipation or fear of probable conscription is not an excuse or justification for voluntary enlistment.
    The fact that claimant’s witnesses, adduced to prove that he never gave aid or comfort to tlie rebellion, show no knorvledge of this service rendered in the arsenal, shows that their negative proof is not of the slightest value. If they were ignorant of this service, they are to be presumed to bear no such relations to the claimant as to give them knowledge of other acts of aid and comfort to the rebellion by him, if such existed.
    The negative proof required by the statute, of claimant’s, must be made by persons who would be presumed likely to know the existence of the affirmative facts, if they had existed.
   LoeiNG-, J.,

delivered the opinion of the court:

The petitioner claims of the United States the net proceeds of one hundred and seven bales of upland and sixteen bales of sea-island cotton.

And the court finds the fact to be—

That the petitioner was, in March, 1855, a naturalized citizen of the United States, and resided in Charleston, in the State of South Carolina. ■

That he owned and was possessed of one hundred and fifteen bales of upland and three bales of sea-island cotton.

That the said cotton was taken from his possession by the United States and sold, and the net proceeds thereof, amounting to $16,025 94, were paid into the public Treasury.

That the claimant from the time of his naturalization had at all times borne true'allegiance to the government of the United States, and had not in any way at any time voluntarily aided, abetted, or given encouragement to rebellion against said government.

It was objected to the recovery of the petitioner that his disloyalty was proved. And the evidence relied upon by the government is the fact shown by witnesses adduced by the government that he served in the arsenal in Charleston in making percussion primer tubes for the Confederates. But the same witnesses prove that if he had not gone into the arsenal he would have been arrested and send into the field, and that it was to avoid this that he went into the arsenal. These witnesses prove therefore that such service was not voluntary, but taken as his only means of avoiding the peril of life and limb from which the United States could not protect him.

The witnesses adduced by the claimant show that he was a loyal man by general reputation and in speech and action; that before the war he belonged to a miLitary company, and left it when war was declared; that he joined a fire company and was obliged to leave that, because of the excess of its numbers beyond its quota; that every now and then some one was after him to xmt him into the army, and then he went into the arsenal, as stated; that he made his service there as little as possible, was there but a little while, and left it as soon as he could; that he belonged to the Yoight Club, and contributed to the assistance of Union prisoners whenever called upon, and was never known to contribute anything for the Confederates. And we think the evidence as the motives for his service in the arsenal is confirmed by his general reputation and conduct, and that on the whole case his loyalty is clearly established.

That the petitioner is entitled to recover against the United States the said net proceeds of the said 118 bales of cotton, amounting to the sum of $16,025 94, for which judgment is rendered for the petitioner.

Pegs, J., dissented.  