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 confed erate 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.