# Mitchell v. Clark

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## Dissenting Opinion

    Field
United States Supreme Court
110 U.S. 633
Mitchell v. Clark
This is a writ of error to the supreme court of Missouri. The plaintiff below sued the plaintiffs in error for rent due on a lease of two storehouses in St. Louis for the months of August, September, and October, 1862, at the rate of $583.33 per month. The defendants answered with four pleas, as follows:
'And now come said defendants, by leave of court, and for amended answer to plaintiff's petition, admit the execution of said lease and the occupancy of said premises under and by virtue of the same as alleged in said petition; and defendants say that after the making of said lease, to-wit, on or about the first day of May, A. D. 1861, certain evil-disposed and wicked persons in the state of Missouri, and in other of the United States, did raise an insurrection and rebellion against the lawful government of the United States, and did seek by force and arms to overthrow said government, and for this purpose did raise a alrge force of armed men, and did incite and carry on a civil war with said government of the United States; that during all the year 1862, and for a long time prior and subsequent thereto, civil war prevailed throughout the state of Missouri, where said premises were located, and where defendants and plaintiff resided; that in order to suppress said insurrection and rebellion, and maintain a large force of armed men, and did of the United States, said government was compelled to raise, and did raise, equip, and put into the field in said state of Missouri, where said war was raging, a large army, and did place said state of Missouri and the city of St. Louis, where said premises were located and defendants resided, under military law; and the said city and county of St. Louis were under military law, and under the military control of J. M. Schofield, a major-general of the army of the United States, as the military commander of the district of Missouri, which embraced the entire state of Missouri aforesaid; that by reason of said civil war the courts of said state of Missouri were suspended, and unable to perform their ordinary functions and administer the law of the land, except as they were protected and allowed to do so by the said military authorities thus in control of said state; that in order to prosecute said civil war on behalf of the government of the United States, and put down and suppress said insurrection and rebellion, and overpower the insurgents and rebels, and protect the loyal citizens of the said state of Missouri, it became and was necessary for the military authorities in control of said state of Missouri, as aforesaid, to take, seize, and appropriate to the public use the private property of the citizens of Missouri; and the said military authorities who were in lawful command and control in said state, by order of said Schofield, then the lawful commanding general in said state, did seize and appropriate to the public use in suppressing said rebellion the private property of divers citizens of said state, and among other things did levy upon, seize, and appropriate to such public use the property, credits, and effects of said plaintiff, especially the rents due and owing from defendants under and by virtue of said lease of defendants in their hands for said months of August, September, and October, 1862; and the said defendants were compelled by the overpowering military force then in lawful control of said state to pay, and did pay long before the commencement of this suit, to-wit, on or about the twenty-fourth day of November, 1862, the said rents for said months of August, September, and October, 1862, and every part thereof, to said military authorities, for and on account and as the property and effects of said plaintiff so seized and appropriated to the public use as aforesaid; that said seizure and appropriation were necessary means for carrying on said war for the suppression of said insurrection and rebellion, and for the defense and protection of the loyal citizens of Missouri. Wherefore defendants say that plaintiff ought not to have or maintain his aforesaid action against them, and they pray judgment, etc.
'And for a further defense defendants say that the said rents reserved in said lease, and due and owing for said months of August, September, and October, 1862, were seized in the hands of defendants, and appropriated as the property of plaintiff for public use in the city of St. Louis, while said city was under military law, under the authority, or color of authority, exercised by said Gen. Schofield, who was then and there duly vested with the military command of said city by the president of the United States and under his authority, and said payment was made by defendants for and on account of plaintiff, as aforesaid, under said authority; and defendants plead and set up as a defense to this action the act of congress entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' approved March 3, 1863, and say that by reason thereof, and of the payment aforesaid, plaintiff ought not to have and to maintain this action, and they pray judgment, etc.
'And for a further defense, defendants say that they paid the said rent for and on account of said plaintiff, in the manner and for the purposes in their first plea hereinbefore stated, after the first day of January, 1861, by and in pursuance of orders received by them from the said Gen. J. M. Schofield, who was vested with military authority by the said government of the United States to make said order, and to seize and to apply to the public use the said property and effects and credits of said plaintiff; and defendants plead in bar of said action the fourth section of article eleven of the constitution of the state of Missouri, and pray judgment, etc.
'And for a further defense to said action, defendants say that the cause of action in plaintiff's petition alleged, if any such does or ever did exist, arose out of certain acts done,-that is to say, out of or from an alleged failure or omission to pay the rent reserved in said lease for the months of August, September, and October, A. D. 1862, to the said plaintiff, and from a payment thereof made for and on account of plaintiff by defendants to the provostmarshal of said district of Missouri, for the public use, under and by virtue of the order and command of Gen. J. M. Schofield, who was then in military command of the military district of Missouri, which embraced the state of Missouri; that said payment was omitted to be made to the plaintiff, and was in fact made for and on account of the plaintiff, for the public use as aforesaid, as a necessary means of carrying on the military operations of the government of the United States against the insurgents, who were then seeking to overthrow said government in said state of Missouri, by virtue or under color of authority derived from and exercised under the president of the United States; and said cause of action, if any such there be or ever was, arose more than two years before the commencement of this action, and said action was commenced more than two years after the passage of an act by the congress of the United States entitled 'An act relating to habeas corpus, and regulating judicial proceedings in certain cases,' approved March 3, 1863.
'And defendants set up and plead the limitations contained in said statute in bar of said actions, and pray judgment.'
To these defenses the plaintiff demurred, and the demurrer was sustained in the court of original jurisdiction, and in the St. Louis court of appeals, as to the first three pleas, and overruled as to the fourth. On appeal to the supreme court, however, the demurrer was sustained as to all the pleas, and judgment being rendered on that ruling for plaintiff in the court below and affirmed in the supreme court, it is to this judgment the present writ of error is directed.
Geo. P. Strong, for plaintiff in error.
Geo. P. Edmunds, for defendant in error.
MILLER, J.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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