#### Asher Ayers *v.*The United States.

*On the Proofs.*

*The claimant residing in the town of Maeon, Georgia, clm-ing the rebellion becomes a member of a military company of “ Some Guards, ” organized to maintain order in the town. On the advance of General Stoneman, in*1864, *the Confederate commander of the post, by a military order, directs every able-bodied man capable of bearing arms to turn out and resist the approach of the United States forces. Military patrols are sent out to compel any man capable of bearing arms to turn out. The company of “ Some Guards,” to tvhiah the claimant belongs, comes out under these orders, and is a part of the military force to resist Stoneman’s approaoh. No direct threat is made against claimant’s life, person, or property, to compel him to march with the company. But he had Icnoivledge of the order and the means tdlcen to enforce it. Se com-pilies without direct compulsion, but rekiatantly and unwillingly.*

Acts not committed with, the mind and intention of giving aid and comfort to the rebellion, or to persons engaged therein, but tinder the ajipre-hension and fear of danger to the person and irroperty of a claimant, do not bar his right of recovery under the *“Abandoned or captured property act.”*(12 Stat. L., p. 820.)

*Mr. 0. P. Pedlc*for tbe claimant:

Action is brought in this case to recover tbe proceeds of 209 bales of cotton- weighing’ 105,178 pounds. This cotton was purchased by claimant in small lots directly from planters, except one lot purchased from a merchant and cotton dealer in the town of Montezuma, Georgia, and was shipped from Macon and Montezuma, in June, 1864, to Savannah, and consigned to" Messrs. Brigham, Baldwin *&*Co., commission merchants, in that city, to be kept and stored for account of claimant.

The places and dates of purchase, -together with the names of • the original owners and vendors, the marks and weights of the bales, are given with so much particularity and minuteness in the testimony of Mr. Cutter, the claimant’s bookkeeper, that no question can well be raised as to the ownership of the cotton.

The fact of seizure by the Federal authorities is proved with equal distinctness.

The only fact brought out, by direct or cross-examination of the long list of witnesses, tending to throw even a doubt or cast a shadow upon the loyalty of claimant is,, that he was a *423member of a company of borne guards in tbe city of Macon, organized and raised for police duty, and on tbe occasion of General Stoneman’s attack upon tbat city called out for its defence.

Tbe evidence shows tbat every member of tbe community capable of bearing arms — and among tbe rest tbis company of borne guards — was compelled, by order of tbe Confederate authorities, to go out on tbat occasion, and there was no mode by which that order cotdd be resisted. If any aid or comfort was rendered to the rebellion by tbe claimant by tbat act, it was not voluntary aid, and therefore does not fall within the prohibition of the statute.

The claimant is a northern man by birth, and tbe presumption, in absence of proof to tbe contrary, would be in favor of his loyalty.

*Mr. B. 8. Bale,*special counsel of tbe Treasury, for tbe defendants.

I. The claimant was, throughout the war, a resident of Macon ; was a man of property, actively engaged in business. The presumption of disloyalty established by tbe statute of 25th June, 1868, as well as by the former decisions of tbe court, must be rebutted to entitle him to recover.

1st. There is not one word of proof to tbe effect tbat claimant gave no aid or comfort to persons engaged in tbe rebellion. .

2d. Tbe proof looking towards tbe establishment of tbe fact tbat be gave no aid or comfort to the rebellion directly is insufficient, vague, often evasive, and abounding in “ negatives pregnant,” implying unmistakably that he did give such aid. And it will be noted tbat tbe defence seems to have suffered here under its very frequent embarrassment of being represented by counsel apparently more active in behalf of the claimant than his own counsel.

3d. The fact appears tbat claimant had a son in tbe Confederate army. This increases and intensifies tbe presumption of the statute, that he did give aid and comfort to persons engaged in tbe rebellion.

II. Tbe claimant proves by Scofield his own admission tbat he had occasionally contributed to soldiers and other objects during the war; and it is proved by abundant evidence tbat he *424was not only a member of tbe borne guards at Macon, but tbat be actually went out in arms witb tbat guard to figbt tbe Union troops under General Stoneman. And tbis guard was organized as well to oppose Federal raiders as thieves, robbers, and incendiaries. It was beyond question an organization in aid of tbe rebellion. Tbe men engaged in it were serving tbe purposes of tbe rebel government in tbeir own sphere of action as effectually as tbe soldiers in tbe field.

III. Tbe pretense tbat these services rendered by claimant were not voluntary, but compulsory, and tbat be is thereby taken out of tbe effect of tbe statute, is utterly unsupported by tbe evidence. It will be noted tbat neither tbis statute of 12th March, 1863, nor tbat of 25th June, 1868, qualifies tbe words “ aid or comfort” by tbe word “voluntary.” Tbe statute makes tbe giving of aid or comfort a bar to maintaining tbe action. It may be conceded tbat a person acting under present, actual, forcible duress, compulsion by'present violence, or even by immediate threats involving personal danger, and within reach of sufficient force to execute those threats, may, perhaps, avoid tbe responsibility for bis own acts even within tbis statute ; but tbis is on tbe ground tbat tbe act is not bis. It is not shown, or pretended to be shown, tbat bis entry into or service in tbe home guards was compulsory; and there is no evidence to sustain tbe claim tbat Ms going out to fight General Stoneman was compulsory. True, there was an order, general, perhaps, sweeping and universal in its terms, requiring every one to serve. There is no evidence tbat tbis order was ever brought to bear personally upon tbe claimant ; tbat a military force was detailed to compel bis obedience; tbat any threats even were used to terrify him into compliance.

Casey, Ch. J.,

delivered tbe opinion of tbe court:

' Tbe claimant avers tbat in tbe month of December, 1864, be was tbe owner of two hundred and nine bales of upland cotton, stored in tbe city of Savannah, Georgia; and tbat after tbe surrender of tbat city to tbe army of tbe United States, under General Sherman, tbis same cotton was seized by tbe United States, shipped to New York on them account, and there sold by tbeir cotton agent, and tbe net proceeds were paid into tbe treasury of tbe United States. Tbe claimant denies tbat Ms *425property was liable to confiscation or capture. He avers bis allegiance and fidelity to tbe United States, an¿l tbat be bas never aided tbe rebellion.

We find tbe facts to be—

1st. Tbat tbe claimant in December, 1864, was tbe *bona fide*owner of two hundred and nine bales of upland cotton, stored in tbe city of Savannah, Georgia.

2d. Tbat this same cotton was seized by tbe officers and agents of the United States and shipped to New' York, and there sold; and tbat tbe net proceeds, amounting to tbe sum of thirty-five thousand and eleven dollars and sixty-eight cents, are now in tbe Treasury of tbe United States.

3d. Tbat tbe claimant bas not transferred or assigned these proceeds, nor are they claimed by any other person.

4th. Tbat from tbe commencement to tbe close of tbe rebellion, both in bis general sentiments and conduct, tbe claimant bas consistently adhered to tbe United States, and did not give intentional and voluntary aid or comfort to tbe rebellion, or to persons engaged therein; nor is any disloyal act alleged against him, except as stated in tbe next finding.

5th. Tbat tbe claimant resided in tbe town of Macon, in tbe State of Georgia, during tbe rebellion, and for many years prior to its commencement; tbat during tbe rebellion tbe claimant became a member of a military company of “home guards” in tbe town of Macon, which was organized to maintain order in tbe town, and for tbe protection of tbe inhabitants. In tbe summer of 1864 General Stoneman, in command of a detachment of United States cavalry, penetrated into tbe interior of Georgia, and was approaching tbe town of Macon. Thereupon tbe Confederate military commander of tbe post, by a military order, directed every able-bodied man capable of bearing arms to turn out and resist tbe approach and advance of tbe United States forces. Military patrols were sent out to scour tbe town and compel every man capable of bearing arms to turn out. Tbe company of “home guards” to which tbe claimant belonged came out as a company under these orders, and constituted a part of tbe military force engaged in resisting Stoneman’s approach to Macon. No personal service of tbe military order was made upon him, nor was any direct threat made against bis life, person, or property to compel him to march armed with tbe company. But be bad knowledge of such order and of tbe *426means taken to enforce it, ancl complied with it without direct compulsion, but reluctantly and unwillingly.

Upon these facts the case is entirely free from all doubt, except upon the fifth statement of facts.

And we hold, as matter of law, that the facts there stated do not bar the claimant’s recovery, because they were not committed with the mind and intention of giving aid and comfort to the rebellion, or to persons engaged therein, but under the apprehension and fear of danger to his person and property if he failed to comply.

And in accordance with these views we render a judgment in favor of claimant for the sum of thirty-five thousand and eleven dollars and sixty-eight cents, ($35,011 68.)