MITCHELL V. HARMONY, 54 U. S. 115 (1851)

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U.S. Supreme Court

Mitchell v. Harmony, 54 U.S. 13 How. 115 115 (1851)

Mitchell v. Harmony

54 U.S. (13 How.) 115


In some of the states, it is the practice for the court to express its opinion upon facts in a charge to the jury. In these states, it is not improper for the circuit court of the United States to follow the same practice.

During the war between the United States and Mexico, where a trader went into the adjoining Mexican provinces which were in possession of the military authorities of the United States for the purpose of carrying on a trade with the inhabitants which was sanctioned by the executive branch of the government and also by the commanding military officer, it was improper for an officer of the United States to seize the property upon the ground of trading with the enemy.

Private property may be taken by a military commander to prevent it from falling into the hands of the enemy or for the purpose of converting it to the use of the public, but the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay and where the action of the civil authority would be too late in providing the means which the occasion calls for.

The facts as they appeared to the officer must furnish the rule for the application of these principles.

But the officer cannot take possession of private property for the purpose of insuring the success of a distant expedition upon which he is about to march.

Whether or not the owner of the goods resumed the possession of them at any time after their seizure was a fact for the jury. In this case, they found that he did not resume the possession, and in this they were sustained by legal evidence.

The officer who made the seizure cannot justify his trespass by showing the orders of his superior officer. An order to commit a trespass can afford no justification to the person by whom it was executed.

The trespass was committed out of the limits of the United States. But an action for it may be maintained in the circuit court for any district in which the defendant may be found upon process against him where the citizenship of the respective parties gives jurisdiction to a court of the United States.

Page 54 U. S. 116

Under the 18th rule of this Court, the mode of calculating interest when a judgment of the circuit court is affirmed is to compute it at the rate of six percent per annum from the day when judgment was signed in the circuit court until paid. (See report of the clerk and order of court at the end of this case.)

Mitchell was an officer of the army, and was sued in an action of trespass by Harmony for seizing his property in the Mexican State of Chihuahua.

By an Act passed on 3 March, 1845, 5 Stat. 750, Congress allowed a drawback on foreign merchandise exported in the original packages to Chihuahua and Santa Fe, in Mexico. Harmony was a trader engaged in this business, and on 27 May, 1846, had transported to Independence, in Missouri, a large amount of goods imported under this law, and in conformity with the regulations of the Treasury Department. On 27 May, he left Independence with several other traders before the passage of the Act of Congress of 13 May recognizing the existence of war with Mexico was known there.

The whole history of Colonel Doniphan's expedition was given in the record, being collected from official documents and the depositions of persons who were present. A brief narrative is given in the opinion of the Court of all the facts which bore upon the present case.

The declaration was in the usual form, and contained three counts, all of them charging the same trespass -- namely, that the defendant, on 10 February, 1847, at Chihuahua, in the Republic of Mexico, seized, took, drove, and carried away and converted to his own use the horses, mules, wagons, goods, chattels, and merchandise, &c. of the plaintiff and compelled the workmen and servants of the plaintiff having charge to abandon his service and devote themselves to the defendant's service. The property so alleged to have been taken is averred to be of the value of $90,000, and the damages $100,000.

Besides the general plea of not guilty to the whole action, the defendant, Mitchell, pleaded several special pleas.

1st. That war existed at the time between the United States and Mexico; that he was a lieutenant-colonel, &c., forming a part of the military force of the United States, employed in that war and under the command of Colonel A. W. Doniphan, and he justifies the taking, &c., under and in virtue of the order to that effect of his superior and commanding officer, Colonel Doniphan; that the order was a lawful one which he was bound to obey, and that he was no otherwise instrumental in the alleged trespass.

Page 54 U. S. 117

2d. Alleging the same preliminary matter, avers that the plaintiff, Harmony, was a citizen of the United States, and, with a full knowledge of the war, had gone with his wagons, merchandise, &c., into Mexico with design to trade with the people of Mexico and to afford aid to the same in said war; that said Doniphan, as he had a right to do, commanded the defendant to seize, take, &c., the said wagons, &c., and that he did, in obedience to said order take, &c., doing nothing more than was necessary to the execution of that order.

3d. With the same preliminary matter as in the second plea, justifies the taking by his own (Colonel Mitchell's) authority as an officer.

The three special pleas above stated are to the first count of the declaration.

To the second count the defendant pleaded of like effect with the above, and three like pleas were plead to the third count.

To the three first and three last pleas -- that is, the pleas to the first and third counts -- issues were joined to the country.

To the special pleas to the second count the plaintiff replied as follows, to-wit, to the first that the said Doniphan did not command the said horses, wagons, &c., to be stopped, taken, &c., nor were the same taken in contemplation of any proceeding in due course of law for any alleged forfeiture thereof, but to apply the same to the use of the United States without compensation to the plaintiff, of which the defendant had notice.

To the second, that the plaintiff did not carry his goods, &c., out of the United States for any purpose of trading with the enemy or elsewhere than in places subdued by the arms of the United States and by license and permission, and that said Doniphan did not command the defendant to take the same for or on account of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but to apply the same to the use of the United States without compensation to the plaintiff.

To the third, that he did not, after notice of the war, carry his goods into Mexico, "except to and into such place and places as had been and was or were captured, subdued, and held in subjection by the forces of the United States," &c., and by the permission of the commanding officer of said forces, nor with design to carry on any friendly intercourse or trade with the citizens of Mexico hostile to the United States, and that the defendant did not, in the performance of his duty as lieutenant-colonel, seize, take, &c., said property, by reason of any supposed unlawful design of the plaintiff to trade with the enemy, &c., but the same was taken by the defendant of his own wrong, &c.

Page 54 U. S. 118

On all these pleas and replications, issues were joined to the country.

When the testimony was closed, the judge charged the jury. The whole of the charge is set forth in the dissenting opinion of MR. JUSTICE DANIEL, and therefore need not be recited here. The bill of exceptions brought the whole charge up to this Court. The jury found a verdict for the plaintiff for $90,806.44, for which and the costs, amounting to $5,048.94, the court gave judgment for Harmony.

Page 54 U. S. 128

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