we think this branch of the defense has also failed. army in their expedition into the enemy's country, to Chihuahua. The mules, wagons, and goods were taken into the public service for the purpose of strengthening the army, and aiding in the accomplishment of the ulterior object of the expedition, which was the taking of Chihuahua; it was not to repel a threatened assault, or to protect the army from an impending peril; in my judgment, all the evidence taken together does not make out an immediate peril or urgent necessity existing at the time of seizure which would justify the officer in taking private property and impressing it into the public service; the evidence does not bring the case within the principle of extreme necessity; it does not make out such a case, or one coming within the principle; there is not only no evidence of an impending peril to be resisted by the public force, but the goods were taken for a different purpose, viz.: for the purpose of cooperating with the army against Chihuahua; the army had to march over two hundred miles before it reached or found the enemy; the danger, if any, lay in the pursuit, not in remaining at San Elisario or returning to Santa Fé: there had been a sudden insurrection against the authority of the government in that neighborhood, but it was immediately suppressed. No case of peril or danger has been proved which would lay a foundation for taking possession of the goods of the plaintiff at San Elisario, on that ground, either as it respects the state of the country, or the force of the public enemy. On the contrary, it was in the possession of the arms of this government. There was no enemy, no public force at the time in the neighbor hood, which put the goods in the danger of being captured. The plaintiff's goods, therefore, stood in the same condition as the goods of any other trader in the country. The testimony does not make out a case of seizure of property justified by the peril of its falling into the enemy's hands. The peril must be immedi ate and urgent, not contingent or remote; otherwise every citizen's property, particularly on the frontiers, would be liable to be seized or destroyed, as it must always be more or less exposed to capture by the public enemy. The principle itself, if properly applied, of the right to take property to prevent it from falling into the hands of the enemy, is undisputed. But in this case there was no immediate or impending danger, no enemy advancing to put the goods in peril. They were more exposed to marauding parties than to any public force, the danger from which the plaintiff considered himself As to the remaining grounds of defense, the able to take care of. The next ground of de- liability of the defendant for taking the goods fense, and which constitutes the principal ques- and appropriating them to the public service tion in the case, and upon which it must proba- accrued at the time of the seizure; if it was an bly ultimately turn, is the taking of the goods unlawful taking, the liability immediately atby the public authorities for public use. I ad- tached, and the question was whether [*141 mit the principle of public law; but this rests that liability had been discharged or released likewise upon the law of necessity. I have no by any subsequent act of the plaintiff; Colonel doubt of the right of a military officer, in a case Mitchell, who executed the order, was not alone of extreme necessity, for the safety of the gov responsible, Colonel Doniphan, who gave the ernment or of the army, to take private prop-order, was also liable; they were jointly and erty for the public service. An army upon its march, in danger from the public enemy, would have a right to seize 140*] the property of the citizen, and use *it to fortify itself against assault while the danger existed and was impending, and the officer ordering the seizure would not be liable as a trespasser; the owner must look to the Govern ment for indemnity. The safety of the country is paramount, and the rights of the individual must yield in case of extreme necessity. No doubt, upon the testimony, if the enemy had been in force, in the neighborhood of the United States troops, with the disparity which existed at Sacramento, and the same danger for the safety of the troops existed at San Elisario that threatened them there, the commanding officer might, for the safety of this army, seize and use, while the danger continued, the wagons and teams of the plaintiff that could be immediately brought into the service, to meet and overcome the impending danger. An immediate, existing, and overwhelming necessity would justify the seizure for the safety of the severally responsible; then, was any act done by the plaintiff which waived the liability, or by which he resumed the ownership and possession of the goods? Certainly the abandonment of the goods to Colonel Doniphan cannot be regarded as an act of resumption of ownership; on the contrary, it was consistent with the assertion of his liability; there had been a negotiation between them; Colonel Doniphan advised him to sell the goods at Chihuahua and look to the government for indemnity, and, in pursuance of this, measures were taken for their protection and safe-keeping. I doubt if there be any evidence showing an intent on the part of the plaintiff to resume ownership over the goods as his private property after they had been seized by the army, or any act done by him that would, when properly viewed, lead to that result." The bill of exceptions concludes as follows: "After the judge expressed his views of the case as above stated, the counsel on both sides declined going to the jury. The presiding judge accordingly charged the jury that the law was as had been stated by him, and that if they agreed with him in his view of the facts, that they would find for the plaintiff, otherwise for the defendant. The counsel for the defendant did then and there except to each of the four propositions mentioned in the charge above stated. The jury, without leaving their seats, returned a verdict for the plaintiff for $90,806.44. And because none of the said exceptions, so offered and made to the opinions and decisions | the rights of the subject or citizen by his fellow of the said associate justice, do appear upon the subjects or citizens, from a determination thererecord of the said trial; therefore, on the prayer on by the action of mere officials or creatures of the said defendant, by his said counsel, the of the government. And with respect to the said associate justice hath to the bill of excep- peculiar intent and effects of this tribunal of the tions set his seal, April Term, one thousand people we read thus: Justice Blackstone, speakeight hundred and fifty. ing of this institution, says: "The trial by jury S. NELSON. [SEAL.]" has ever been, and, I trust ever will be, looked The record, above cited, informs us that after upon as the glory of the English law. And if the judge had expressed his views of the case it has so great an advantage over others in reguas above stated, the counsel on both sides de-lating civil property, how much must that adclined going to the jury. And surely, after vantage be hightened when *it is ap- [*143 such an expression, no other result could well plied to criminal cases! It is the most tranhave been anticipated. In the first place, the scendent privilege which any subject can enjoy counsel for the plaintiff could not have made or wish for, that he cannot be affected, either to the jury so authoritative an argument in be- in his property, his liberty, or his person, but half of his client; and in the next place the by the unanimous consent of twelve of his counsel for the defendant must have been a neighbors and equals." Again he says: "Great rash man could he have attempted to throw his as this eulogium may seem, it is no more than individual weight (whatever might have been this admirable constitution, when traced to its his ability) in opposition to this authoritative principles, will be found in sober reason to declaration and influence of the court. Nay, deserve. The impartial administration of 142*] *it may be insisted, that if the court, in justice, which secures both our persons and our passing upon the weight of the evidence, was property, is the great end of civil society. But acting within its legitimate sphere, the counsel if that be entirely intrusted to the magistracy, would have been justly obnoxious to the impu- a select body of men, and those generally tation of indecorum, if not of contempt, in as selected by the prince, or such as enjoy the sailing before the jury the judge's decision; for highest offices in the state, their decisions, in the respective provinces of the court, the coun- spite of their own natural integrity, will have sel, and the jury, are separate, distinct and frequently an involuntary bias towards those of well defined, and neither should be subject to their own rank and dignity. It is wisely orinvasion by the other. dered, therefore, that the principles and axioms But after the counsel had been thus silenced, of law, which are general propositions flowing and the weight of the evidence fully and from abstracted reason, and not accommodated minutely pronounced upon by the court, it is to times or men, should be deposited in the insisted, that the alleged irregularity was en- breasts of the judges, to be occasionally applied tirely cured, by a declaration from the court to to such facts as come properly ascertained bethe jury, "that if they agreed with him in his fore them. For here partiality can have little view of the facts, they should find for the plaint- scope: The law is well known, and is the same iff, otherwise they might find for the defendant." for all ranks and degrees; it follows as a regBut the natural and obvious inquiry here is, ular conclusion from the premises of facts prewhat the judge's view of the facts had to do established. But in settling and adjusting a with this matter. It was the jury who were to question of fact, when entrusted to any single find the facts for the judge, and not the judge magistrate, partiality and injustice have an who was to find the facts for the jury; and if ample field to range in, either by boldly asthe verdict is either formally, or in effect, the serting that to be proved which is not so, or verdict of the judge, it is neither according to by more artfully suppressing some circum truth nor common sense, the verdict of the stances, stretching and warping others, and disjury; and these triers of fact had better be distinguishing away the remainder." And again: pensed with, as an useless, and indeed an ex-"Every new tribunal erected for the decision pensive and cumbersome formula in courts of of facts without the intervention of a jury law, than be preserved as false indicia of what they in reality do not show. Moreover, this determination of facts by the court does not place the parties upon fair and equal grounds of contest before the minds of the jury; it is placing the weight of the court, which must always be powerfully felt, on the side of one of the parties, and causing the scale necessarily to preponderate by throwing the sword, which, under such circumstances, can hardly be called the sword of justice, into one of the scales in which the rights of the parties are hanging. The practice of passing upon the weight of the evidence and of pronouncing from the bench what that evidence does or does not prove, accords neither with the nature and objects of jury trials, as indicated by its very name, nor as affirmed by the fathers of the law who have defined this institution and proclaimed it to be the ark of safety for life, liberty and property. Thus it is called the trial per pais, or by the country, to distinguish it as a determination of (whether composed of justices of the peace, commissioners of the revenue, or judges of a court of conscience, or any other standing magistracy) is a step towards establishing aristocracy, the most oppressive of absolute governments. It is, therefore, upon the whole, a duty which every man owes to his country, his friends, his posterity, and himself, to maintain, to the utmost of his power, this valuable constitution in all its rights; to restore it to its ancient dignity if at all impaired by the different value of property, or otherwise deviated from its first institution; and above all to guard it against the introduction of new and arbitrary methods of trial, which, under a variety of plausible pretenses, may in time imperceptibly undermine this best preservative of English liberty." With regard to the legitimate and proper mode of operation, and effect of the trial by jury, the language of Lord Coke should ever be kept in mind, as furnishing the true and imposes upon the views and efforts of the advocate, who, in a great majority of instances, will hardly venture to throw himself openly into a conflict with the court. And again the maxim which declares that ad quæstionem facti non respondent judices, would seem to forbid or irregular at least. The court can exercise a legitimate and effectual control over the verdict of juries by the award of new trials, and should be restricted to this regular exertion of its acknowledged power. Let us test this interposition by the court, by comparing it with a similar irregularity on the part of the jury. “Ad quæstionem juris non respondent juratores sed judices." says the maxim. Now, suppose the jury sworn in a cause should declare to the court what evidence was competent or relevant to the issues they were to try, and what, in their view, should be the law governing the contest between the parties. Would not such a proceeding be regarded as extremely irregular and wholly unjustifiable? And why would it be so regarded? Simply because in so acting, the jury would transcend the province assigned them by their duty; because they would not be conforming to the maxim ad quæstionem legis non respondent juratores sed judices. And yet, perhaps, there would be greater color for this proceeding than can be found to excuse the interference by the court in questions of fact; for it is undeniable that from the earliest periods of the practice of jury trials, the jury, of right, could find a general verdict, thereby constituting themselves judges both of law and fact. only true standard by which to measure this valuable institution. After giving his deriva tion of the terms "verdict" and "judgment," 144*] *this great common lawyer proceeds, "Et sicut ad quæstionem juris non respondent juratores sed judices; sic ad quæstionem facti, non respondent judices sed juratores." For this advice altogether, or to render it officious jurors are to try the fact, and the judges ought to judge according to the law that ariseth upon the fact, for ex facto jus oritur. The manner of stating the above propositions by this great lawyer and commentator is worthy of particular attention, as defining and illustrating with clearness and precision, the powers and duties of the court and the jury. He has not simply said, ad quæstionem juris respondent judices, nor in like manner ad quæstionem facti, respondent juratores, but he has placed them in a striking opposition and contrast, and drawn a well defined limit around the functions of both the court and the jury, and informed them, in terms too unequivocal for misapprehension, that the limit, thus prescribed, neither has the power to transcend; has declared to each what it shall not do. Thus, literally translated, his annunciation is "And as with respect to the questions of law, the jury must not respond, but only the judges; so, or in like manner, or under like restriction, the judges must not respond to questions of fact, but only the jury.' There can be no escape from the force of the positions thus laid down by Lord Coke, by the argument that the jury are not absolutely bound by the opinion pronounced by the court upon the weight of the evidence. The proper inquiry here is, not as to the absolute and binding In accordance with the maxim quoted from authority of the court's opinion upon the weight Lord Coke, may be cited other authorities of of evidence, but that inquiry is, what are the great weight. Thus, in the case of Rex v. Poole, legitimate and appropriate functions of the to be found in Cases in the King's Bench, in court and the jury; whether the former, in the time of Lord Hardwicke, it is said by Hardpronouncing upon the weight of the evidence, wicke, Ch. J., that "it is of the greatest consecan, within any rational sense, be responding quence to the law of England, and to the subject, only to questions of law, or whether it is not that the powers of the judge and the jury be kept controlling the free action of the jury by the distinct; that the judge determine the law, and indirect exertion of a power which all are the jury the fact; and if ever they come to be obliged to concede that it does not legitimately confounded, it will prove the confusion and possess; the power of responding to the facts of destruction of the law of England." So likethe case. This is one of the mischievous conse-wise in Foster, p. 256, it is said, that "the conquences against which we are assured by Justice Blackstone, that the trial by jury was designed to guard, when he remarks that, "in settling and adjusting a question of fact when intrusted to any single magistrate, partiality and injustice have an ample field to range in, either by boldly asserting that to be proved which is not so, or by more artfully suppressing some circumstances, stretching and warping others, and distinguishing away the remainder." And if this power of interpretation or of weighing the evidence cannot safely be deposited within the regular commission of the judge, much less should an attempt to wield that power be tolerated, when confessedly beyond his commission. The objection here urged to the interposition of the court as to the weight of evidence, is by 145*] *no means weakened by the excuse or explanation that such declaration by the court is not binding, but is given in the way of advice to the jury; the essence of the objection is perceived in the control and influence which an interposition by court is almost certain to produce upon the otherwise free and unembar rassed action of the jury, and the restraint it struction of the law, upon the facts found by the jury, is in all cases undoubtedly, the proper province of the court." It has been said, that the course pursued by the judge in this case is in conformity with the practice of the courts of England, and in the *majority of the [*146 States of this Union. For the establishment of the position assumed, either with regard to the English courts, or with respect to the tribunals of the several States, no authorities have been cited; but, even if this position should be conceded, it is not the less clear that the rule it is invoked to sustain is a flagrant departure from the great principle so emphatically asserted by the fathers of the law, and should not the less be viewed and shunned as an abuse, rather than an example worthy of imitation. In what number of states of this confederacy such a practice (such an abuse, as I would term it), may prevail has not been shown; certain it is, that in many of the Southern States it does not obtain, and would not be tolerated. It has also been said, that the right of the judge to instruct the jury upon the weight of testimony has been ruled as the established doctrine of this rights. Transforming this institution from what it was intended to be, and once was in reality-a trial by the country-into a mere formula, to be molded at the discretion of the court. I think that the judgment of the Circuit Court should be reversed. DAVID D. MITCHELL, Plaintiff In obedience in Error, v. MANUEL X. HARMONY. to the order of the court in this case, yesterday, the clerk of this court having filed the following Supreme Court of the United States. v. MANUEL X. HARMONY, No. 178. to error the Circuit Court of the United States for In calculating the interest on the judgment of affirmance in the above-entitled cause, the clerk respectfully presents, at the instance of the respective counsel, the following different modes for the consideration of the court: 1. Interest, at the rate of six per cent., on the judgment of the Circuit Court, from the 9th November, 1850, the day the judgment was signed, to this date. *2. Interest, from the 1st April, 1850, [*148 the first day of the term at which the judg ment was rendered to this date. 3. Interest, at the rate of 7 per cent., from 9th November, 1850, to 26th February, 1851 (the date of the writ of error), and then at 6 per cent. on the aggregate, to this date. court. If this be so, it is a revelation which | 4. Interest, at the rate of 7 per cent., from 1st April, 1850, to 26th February, 1851, and then at six per cent. on the aggregate, to this date. The clerk feels bound to confine his calculations to the 18th rule of the court, irrespective of the Act of Congress of 23d August, 1842. WM. THOMAS CARROLL, C. S. C. U. S. 14th May, 1852. Calculation No. 1. 8,706.85 Interest, at 6 per cent. per an- $95,855.38 Judgment of Circuit Court, U. S., for New York, rendered 1st April, 1850. 12,204.57 Interest, at 6 per cent. per annum, from 1st April, 1850, to 14th May, 1852-two years, one month, and fourteen days. Calculation No. 3. $95,855.38 Judgment of Circuit Court, U. S., for New York, signed 9th November, 1850. 1,994.35 Interest, at 7 per cent. per annum, from 9th November, 1850, to 26th February, 1851 $104,989.24 [*150 three months and seventeen | first calculation by the clerk in his report is the 97,849.73 days. proper mode of calculating the damages given 7,139.51 Interest on this amount at 6 per under the rule of court. Wherefore, it is now cent. per annum, from 26th here ordered by the court, that the judgment February, 1851, to 14th May, entered in this case, on the 12th instant, do 1852-one year, two months, stand as the judgment of this court. and eighteen days. *ORDER. Calculation No. 4. $95,855.38 Judgment of Circuit Court, U. S.. for New York, rendered 1st April, 1850. 6,076.15 Interest, at 7 per cent. per annum, from 1st April, 1850, to 26th February, 1851 ten months and twenty-six days. Interest on this amount, at 6 per cent. per annum, from 26th February, 1851, to 14th May, 1852-one year, two months, and eighteen days. $101,931.53 7,440.99 $109,372.52 149*] *And Mr. Vinton having filed the following exceptions, namely: The Defendant in Error, M. X. Harmony, excepts to the report of the clerk, touching the computation of interest on the above named judgment of the Circuit Court, U. S., for the Southern District of New York, in this, namely: 1st. That, by the Act of Congress of the 23d of August, 1842, the said defendant in error is entitled to the same rate of interest on said judgment (being 7 per cent.) as he would be entitled to if said judgment had been rendered in a state court of the State of New York; whereas, the said computation allows 6 per cent. only on said judgment. (See 5 Statutes at Large, 518.) 2d. That the said interest ought to be computed, on said judgment, from the first Monday in April, 1850, instead of from the 9th of November of that year. (See printed record, pages 19 and 20.) S. F. VINTON, May 14, 1852. For Defendant in Error. And the said Defendant in Error, also, at the same time, moves the court to open up the 1850, in conformity to said Act For Defendant in Error. It is thereupon now here ordered by the court, that the said report and exceptions be set down for argument next Monday, the 17th instant. The court declined to hear any argument on the motion of Mr. Vinton and the exceptions filed by him to the clerk's report, and took the same under advisement. On consideration of the motion made by Mr. Attorney-General Crittenden, on the 13th instant; of the report by the clerk, filed the 14th instant; of the exceptions to said report, by Mr. Vinton, filed the same instant; and of the motion filed by Mr. Vinton, the 15th instant, it is the opinion of the court, that the This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of New York, and was argued by counsel; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed, with costs and damages at the rate of six per centum per annum. Aff'g 1 Blatchf., 549. Cited-14 How., 332; 13 Wall., 628; 1 Otto, 716; 4 Otto, 101, 234; 5 Otto, 238; 8 Otto. 303; 10 Otto, 169, 171; 1 Abb. U. S., 558; 6 Blatchf., 534; 17 Blatchf., 54; 1 Dill., 355, 357: 2 Sprague, 220; 1 Flippin, 101: 16 Bank. Reg., 222; 4 Cliff., 411, 412. JOHN S. BUCKINGHAM AND MARK D. NATHANIEL C. MCLEAN. Assignee in Practice- Waiver of notice- What appeal in Where a defendant in error or an appellee wishes to have a case dismissed because no citation has been served upon him, his counsel should give notice of the motion when his appearance is entered, or at the same term; and also that his appearance is entered for that purpose. A general appearance is a waiver of the want of notice. An appeal in equity brings up all the matters which were decided in the Circuit Court to the prejudice of the appellant; including a prior decree of that court from which an appeal was then taken, but which appeal was dismissed under the rules of this court. This is an appeal from the Circuit Court of the Ohio District, and a motion is made to dismiss it on two grounds: 1. Because no citation has been issued. 2. "Because the appeal is from the decree of 1848 and interlocutory decrees, whereas all the matters contested by the appellants were finally adjudicated and decreed at the November Term, 1846, from which decree an appeal was taken, which was dismissed by this court, and no appeal has been since taken." At November Term, 1846, a decree was en NOTE.-Appearance cures defects in service of procof subject matter. See note to Knox v. Summers, 3 ess, and its non-service, except want of jurisdiction Cranch, 496. Effect of appearance by counsel or attorney in an action. Unauthorized appearance. What is an appearance. See note to Shelton v. Tiffin, 6 How., 163. |