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tion, or obedience by reason of his being in a public position until he makes his authority known, or until it is known to those with whom he is dealing; and until then the owner of property which the authorized person is undertaking to attach and carry away, may treat him as a mere trespasser, and protect it against him. But if he resist, having such knowledge, and the authorized person is injured by him, he is liable in an action of trespass for an assault and battery: Leach v. Francis, 41 Vt.
L., an officer, accompanied by C., the execution-creditor, had attempted to levy upon a mare which F., the debtor, had sold to W., and had been resisted by F. and W., and the mare escaped during the affray, and afterward W. mounted her and rode off. L. then directed C. to take hold of F., and hold him while he went after W. and the mare, which he did. Held, that as the execution did not run against F.'s body, and as he did not interfere or threaten to interfere with L.'s going after the mare, this imprisonment of F. was a trespass, and having been done by C. by L’s direction, both were liable for it: Id.
VENDOR AND VENDEE. See Debtor and Creditor. Contracts to convey Real Estate on Payment of Purchase Price Covenants of, when dependent.—In a contract for the sale of real estate, where the purchaser covenants to pay the purchase-money, and the vendor covenants to convey the premises at the time of payment, or upon the time of the payment of the money, or as soon as it is paid, the covenants are mutual and dependent, and neither can sue without showing a performance, or an offer to perform on his part. Performance, or an offer to perform, on the one part, is a condition precedent to the right to insist upon a performance on the other part: Hill v. Grigsby, 35 Cal.
Where the purchase-money is payable in instalments, and the conveyance is to be executed on the last day of payment, or on the payment of the whole price, or at any previous day, the covenants to pay the instalments falling due before the time for the execution of the conveyance are independent covenants, and suit may be brought thereon without conveying or offering to convey: Id.
The covenants to pay the instalments falling due on or after the day appointed for the conveyance are dependent covenants; and the vendor, in his suit to recover the same, whether he sues for those alone, or joins instalments that became due before the time, must show a conveyance or offer to convey : Id.
Where H. agreed to execute and deliver to G. and S. a good deed, conveying all the right, title, and interest of H. in and to one undivided half interest in a certain mill and premises —said deed to be sufficient to convey one undivided half interest in and to said property, free of encumbrance, “ upon condition” that G. and S. should pay to H., in specified instalments, the sum of nine thousand and eight hundred dollars, with certain interest, said deed to be executed as soon as said sums are paid: Held, first, that the execution of the deed and the payment in full of said sums were intended to be simultaneous acts, and the covenants for their performance are dependent covenants; second, that in an action by H. against G. and S., after all said instalments bad fallen due, to recover said sums, H. could only recover on delivery, or tender of delivery of said deed ; and, third, that the covenant of H. to convey would be satisfied by a conveyance or tender thereof of the right, title, and interest which H. had in the undivided half of said property at the date of said agreement: Id.
WILL. Proof by Copy.- A copy of a will may, under certain circumstances, be proved as the will of a deceased person. Therefore, a plea in which the only fact alleged as an objection to the probate of a will, was that " the instrument sought to be established, purports to be only a copy of the will of,” &c., held insufficient upon general demurrer: Dulley v. Wardner's Exr., 41 Vt.
A plea that " said instrument or writing ought not to be admitted to probate, because the same is not entitled to probate as the last will and testament of,” &c., also held insufficient, it being merely the statement of a conclusion, opinion, or inference, without the allegation of any fact on which it is based : Jd.
The question can be determined only upon trial, whether the copy presented can be established: ld.
LIST OF NEW LAW BOOKS.
ANDREWS.—The Trial of S. M. Andrews for Murder of C. Holmes. By C. G. Davis. N. Y.: IIurd & Houghton. Cl. $2.50.
Brigitly.—The Bankrupt Law, with Notes of Decisions. By F. C. BRIGHTLY. Philadelphia: Kay & Bro. Cl. $3.
GRAY.-Reports of Cases in the Supreme Judicial Court of Massachusetts. By IIORACE GRAY, Jr. Vol. 15. Boston: Little, Brown & Co., 1869.
HILLIARD.—The Law of Injunctions. By F. HilliaRD. 2d ed. Philadelphia: Kay & Bro. Shp. $7.50.
ILLINOIS.—Reports of Cases in the Supreme Court. By N L. FREEMAN. Vol. 42. Chicago: E. B. Myers, 1869. Shp. $6.50.
MAINE.—Reports of Cases in the Supreme Court. By Wy. WIRT Virgix. Vol. 55. Hallowell: Masters, Smith & Co., 1869.
New Jersey.Reports of Cases in the Court of Chancery, Prerogative Court, and Court of Errors. By C. E. Green. Vol. 4. Trenton: Hough & Gillespie, Prs. Shp. $5.50. New York.-Reports of Cases in the Court of Appeals. By Joel Tif
Vol. 11. Albany: W. Gould & Son. Shp. $4. TENNESSEE.—Reports of Cases in the Supreme Court. By THOMAS H. COLDWELL. Vol. 5. Nashville: S. C. Mercer, Pr., 1869.
Walker.-Introduction to American Law. By T. WALKER, LL.D. 5th ed. by J. B. WALKER. Boston: Little, Brown & Co., 1869.
AMERICAN LAW REGISTER.
THE POWER OF THE PRESIDENT TO GRANT A GENERAL PARDON OR AMNESTY FOR OFFENCES AGAINST THE UNITED STATES.
The proclamation of President Johnson of 25th December 1868, purports to grant full pardon and amnesty to all persons engaged in the late rebellion, for the offence of treason against the United States, or of adhering to their enemies during the late
This proclamation, practically, could only benefit those. offenders described in it who, at the time it was issued, were under indictment in the courts of the United States, and these were very few in number. In respect to all others (except those "fleeing from justice”), the Statute of Limitations, which limits the period for the finding of an indictment for treason to three years next after the act of treason (Act of 30th April 1790, $ 32, U. S. Stats. at Large, vol. 1, p. 119), has long since served as an act of amnesty, full, complete, and without condition or exception. But the authority of the President to issue this proclamation has been called in question and denied in a report of the Judiciary Committee of the Senate of the United States, made by Senator Edmunds on the 17th February last; and, as every question involving the nature and limits of a grant of power conferred by the Constitution on any branch or department of the government is always entitled to a careful and candid examination, the reasons assigned for the conclusion of the committee that the President VOL. XVII.-33
cannot, by proclamation, without the authority or assent of Congress, grant general pardon or amnesty, and that, consequently, this proclamation was not authorized by the Constitution or laws, challenge a respectful consideration. The question is, whether the granting of general pardon or amnesty was within the power vested in the President by the Constitution; and not whether, allowing this power to be thus vested in the President, its exercise in the particular case was judicious or expedient. It will be conceded by all that the power which the Constitution grants to the President is an inseparable incident to the presidential office, and that it is the same in measure and degree at all times, by whomever that office may be held.
The Constitution of the United States (Art. 2, § 2) provides that the President “ shall have power to grant reprieves and pardons for offences against the United States except in cases of impeachment.” By § 13 of chap. 195 of the Public Acts of the Second Session of the 37th Congress, entitled “ An Act to suppress insurrection, to punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes," approved July 17th 1862, it was provided as follows, viz.:
“Sec. 13. And be it further enacted, That the President is hereby authorized, at any time hereafter, by proclamation, to extend to persons who may have participated in the existing rebellion in any state or part thereof, pardon and amnesty, with such exceptions and at such time and on such conditions as he may deem expedient for the public welfare:” U. S. Stats. at Large, vol. 12, p. 592.
This 13th section of the Act of 17th July 1862 was repealed by chap. 8 of the Public Acts of the Second Session of the 39th Congress, which took effect on the 19th January 1867, by not having been returned by President Johnson to the House of Congress in which it originated, within the ten days prescribed by the Constitution, whereby it became a law without his approval. But if the President, independently of the section thus repealed, was invested with the power to grant pardon and amnesty for offences against the United States, his power would remain the same after this section was repealed as it existed before the repeal. If the power was conferred on him by the Constitution, that section, when it became a law, did not add anything to his constitutional power; and, when it was repealed, the repeal could not diminish or lessen that power. No statute law can take away from the
President a power conferred upon him by the Constitution. If, on the other hand, the power of the President to grant pardon and amnesty for offences against the United States in the recent rebellion is not vested in the President by the Constitution, and cannot be exercised without the authority or assent of Congress, then, by reason of the repeal of this section, the three proclamations of pardon and amnesty issued by the President on 7th September 1867, 4th July 1868, and 25th December 1868, were severally issued without authority from the Constitution or the laws, and can have no legal efficacy or effect whatever. The question is therefore presented, whether the constitutional power of the President “to grant pardon for offences against the United States," includes the power to grant an amnesty or general pardon for the same offences? And here the definition of the terms pardon and amnesty becomes necessary.
“A pardon,” says Chief Justice MARSHALL, in the case of United States v. Wilson, 7 Peters 150, "is an act of grace proceeding from the power intrusted with the execution of the law.s which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed.” Worcester defines pardon as being “the remission of a fault or crime, or of a penalty; forgiveness ; absolution; acquittal.” Webster defines it as being, (1.) “Forgiveness; the release of an offence, or of the obligation of an offender to suffer a penalty, or to bear the displeasure of the offended party. We seek the pardon of sins, transgressions, and offences. (2.) Remission of a penalty. An amnesty is a general pardon. (3.) Forgiveness received." Amnesty is defined by Worcester as an act of oblivion or indemnity; a general pardon or freedom from penalty granted to those guilty of some crime or offence;" and Webster defines the same word as being “an act of oblivion ; a general pardon of the offences of subjects against the government, or the proclamation of such pardon.” In Lieber's Encyclopædia Americana, amnesty is defined as “an act of oblivion; the entire freedom from penalty granted to those who have been guilty of any neglect or crime, usually on condition that they return to their duty within a certain period." Bouvier, in his Law Dictionary, in defining amnesty, makes a distinction or difference between amnesty and pardon, both in their nature, application, and effect; and yet, in defining pardon, he says that general pardons are express, when an act