
    WITKOWSKI’S CASE. Simon Witkowski v. The United States.
    
      On the Proofs.
    
    
      It appears that a claimant’8 family resided in New York Harina the rebellion. Ne does not show olearla when he went into the insurrectionary districts. Sis individual residence at the South appears to have been at Fort G. up to 1882, but he does not call a single witness to show his politiaal'status while there.
    
    Where a party whose loyalty is in issue shows that his family resided during the rebellion at the North, and leaves it doubtful as to whether he entered the insurrectionary districts before or after the war began, and does not call a single witness to show his political status at the place where ho resided during- a part of the rebellion, his case will bo deemed suspicious, and his loyalty will he adjudged not proven to the satisfaction of the court.
    
      Messrs. Biddle & Leslci for the claimant:
    The claimant seeks to recover the net proceeds of one hundred and eighteen bales of cotton, seized and sold in behalf of the United States.
    The claimant had shipped from Macon to Savannah in the month of July, 1864, one hundred and twenty-eight bales of cotton, consigned to Erwin & Hardee, commission merchants, with directions to store it for him. Afterward he gave directions to Erwin & Hardee to sell enough to pay the charges of storage; and ten bales were sold by them. The remaining one hundred and eighteen bales were taken by the United States military authorities from Erwin & Hardee’s warehouse, after the occupation of Savannah.
    The cotton was registered, in the name of the claimant. The official record of captured cotton at Savannah has the entry of one hundred and eighteen bales of upland in the name -of Simon Witkowski; and from the record of captured cotton shipped from Savannah, it appears that the one hundred and eighteen bales of upland, in the name of Simon Witkowski, were shipped February 25,1867, by the ship Lawrence.
    The Secretary of the Treasury has failed to give the specific statement as to amount received for said one hundred and -eighteen bales, or the various charges against it.
    All the claimants of Savannah cotton are favored merely with the information: “that a further examination of the accounts of Simeon Draper, United States cotton agent at New York, shows that the net average proceeds of one bale of upland cotton, as nearly as can be ascertained, were $176 56, and of one bail of sea-island cotton, $230 72, both in currency.”
    The evidence as to the loyalty of the claimant embraces the whole period of the rebellion. It not only goes to show that he did not assist or comfort the rebellion — that he was opposed to the rebellion not merely passively, but it shows that whenever he had the opportunity he assisted to keep out others from aiding the rebellion.
    
      The Assistant Attorney General for the defendants :
    The petitioner seeks to recover judgment for the proceeds of one hundred ami eighteen bales of cotton, seized in Savannah, Georgia, in January, 1865, by agents of the United States, and the proceeds paid into the Treasury.
    In his petition he alleges that he “ is a native of Prussian Poland, but a naturalized citizen of the United States.” He further alleges his loyalty to the United States.
    The defence rests upon the fact that- neither of these allegations is proved:
    I. No evidence whatever is offered of the naturalization of the claimant.
    II. No sufficient evidence of the loyalty of the claimant is produced.
    
      He voluntarily resided within the sway of the rebellion, from the commencement to the close thereof.
    His keeping particular individuals out of the confederate service is entirely consistent with a sentiment and character of friendship to the rebellion. Indeed, it argues a degree of familiarity with rebel officials which would hardly have been accorded to one suspected even of hostility to the southern cause.
    His occupation, that of traveling through the rebel country, peddling and speculating, was one, the prosperity of which would not have been promoted by disloyalty to the confederacy.
    There can be no doubt that Witkowki’s status was such that, in case it had been necessary to establish a character of loyalty to the rebellion, in order to obtain the proceeds of this cotton, he could have made good proof thereof.
    A less ambiguous character than that is necessary to authorize this court to give judgment in favor of a claimant of captured and abandoned property.-
   Milligan, J.,

delivered the opinion of the court:

This action is prosecuted under the act of Congress approved March 3,1863, to recover the net proceeds of one hundred and eighteen bales of cotton, alleged to have been captured by the-United States military forces in Savannah, Georgia, in I860.

The facts on which the case rests are found to be as follows:

1. The claimant is a naturalized citizen of the United States.

2. In July and August, 1864, he shipped from Macon, Georgia, to Erwin & Hardee, merchants at Savannah, two lots of cotton, amounting in the aggregate to one hundred and twenty-eight bales, with the request that they hold it for him for some time to come. Erwin & Hardee replied to him by requesting a remittance to cover costs and charges, and he directed them to sell enough of the cotton in their hands to meet the necessary expenses on it. Pursuant to this order, they afterward sold ten bales, which covered all charges against it. The balance, one hundred and eighteen bales, remained on storage with them until after the occupation of the city by General Sherman, when it wras seized by the United States military forces, shipped to New York, and there sold, and the proceeds paid into the Treasury.

3. The claimant’s family and connections appear to bare resided in New York. When he first came South does not very distinctly appear. One of the witnesses, Mr. Levi, says: “He lived in the North from 1850 up to 1862; I saw him in Georgia in 1862, and he told me he lived in the country.” Tbe witness Brown says that he resided at Fort Gaines in Georgia, (sometimes called the country,) “ during the war,” and came to Savannah occasionally, where he met him, and they conversed on the subject of the war. Mr. Wurzburg, another witness, says, in substance, that he was in the South at the breaking out of the Avar, residing at Fort Gaines, and at the commencement of the war he left there and came up to him at Macon, where he made his home, but was not-tliere all the time.

He ayus engaged in general speculation and trading over the country; and after he left Fort Gaines he does not appear to have had any fixed residence.. The precise point of time when he left Fort Gaines does not satisfactorily appear. It is proven that he admitted he resided there in 1862, while another says he lived there “ during the war,” and still another, he left there at the breaking out of the rebellion. The testimony is conflicting, not to say suspicious-, and, on the w'hole, we feel fully authorized in finding that he did not change his residence at Fort Gaines until some time in 1862.

After he left Fort Gaines, he is shown, wdth reasonable certainty, (if the testimony is to be credited, and some of it bears the ear-marks of suspicion,) to have given no aid or comfort to the rebellion; but not a single witness speaks of his political status while he resided at Fort. Gaines who appears ever to have been there, or to have had an opportunity, personally, to have judged of his conduct Avhile there.

In vieAV of all the evidence in this record and the due weight to be attached to it, we.are unable to find that he has established his loyalty to the United States throughout the entire period of the war.

On these facts, Avhieh are carefully drawn from the record before us, it is obvious there can be no recovery in this case. The rule, as laid down in the Margaret Bond Case, (2 G. Oís. B., in 533,) is as folioavs : u To entitle the claimant to recover, the act requires that he should prove, by those who had the opportunities of observing his conduct, that he did not give such assistance or encouragement to the insurrection. He must go further. His evidence to that effect must cover tbe entire period oí tbe war, so that it shall appear that he never gave any aid or comfort to the rebellion.”

This rule is founded on the language of the act of Congress, and we have uniformly enforced it, and when applied to the facts disclosed in this record it completely cuts off' the claim.ant’s right of recovery in this action.

The petition must be dismissed.  