Pickett v. Legerwood.

ment was to be revived by scire facias; and that Mitchell had not been a terre-tenant for upwards of ten or twelve years, and had no interest therein. That Samuel Legerwood had never been a terre-tena it, but was entered *defendant for those claiming under the title of his deceased father, *146] and that Maxwell had abandoned the possession, and had been dead for many years. The petition prayed the court to award a writ of error coram vobis, to reverse and annul the order extending the demise, and to quash the impending writ of habere facias possessionem; and for such other relief as the case required.

The circuit court ordered an injunction to stay proceedings on the habere facias; and on the 26th November 1831, the following judgment was entered: "The court being now sufficiently advised of and concerning the premises, do consider, that the plaintiffs' writ of error coram vobis be sustained; that the order extending the demise in the declaration of Seekright, on demise of Pickett, against Mitchell, &c., be set aside, and the habere facias which issued thereon be quashed; and that the plaintiffs recover of the defendants their costs herein expended."

From this judgment, the plaintiffs in error, on the 28th of November 1831, prosecuted a writ of error to this court. The citation was dated of the 28th November 1831, and required the defendants in error to appear at the January term 1832, of this court. The record brought up by the writ of error, was filed in June 1833.

Loughborough, for the defendants in error, moved to quash the writ of error on the following grounds: 1. Because, although the writ of error was returnable to January term 1832, of this court, the record was not filed until June 1832, the term of January 1832, having thus intervened. 2. Because the proceedings of the circuit court, on the writ of error coram vobis, were not of such a nature as to admit of revision in this court; it being no more than a different form or mode of exercising the power the circuit court had over its acts, and therefore, subject to the rules which this court have established against revising the interlocutory acts or orders of inferior courts. The motion was opposed by Wickliffe, for the plaintiffs in error.

*JOHNSON, Justice, delivered the opinion of the court.-This was *147] a motion to quash the writ of error upon two grounds. The first was, because the record was not filed with the clerk of this court, until the month of June 1833, whereas, the writ of error was duly served, returnable to the January term 1832. It was contended, that the case was out of court, by lapse of time, and the filing, at that late day, could not reinstate it. But on this ground we are of opinion, that the motion cannot be sustained; since the defendant in error might have availed himself of the benefit of the rule of court, which gave him the right to docket and dismiss the cause. This court decided, in the case of Wood v. Lide, that provided the service be before the return-day of the writ, a return at a subsequent day will be sustained. 4 Cranch 180.

The second ground is one which required more examination. The judgment below was rendered on a writ of error coram vobis, sued out in the same court, for the purpose of correcting an error committed at a previous term, and into which, it was contended, that the court had been surprised.

Pickett v. Legerwood.

We are not now called upon to decide on the merits of the cause below; nor whether it was a case proper for the application of that remedy. The motion here is to quash the writ of error, upon the ground that it is an exercise of jurisdiction in the court below which does not admit of revision in this tribunal; that it is but a different form or mode of exercising the power of the court of the first resort over its own acts, and is, therefore, subject to the same exceptions which have always been sustained in this court, against revising the interlocutory acts and orders of the inferior

courts.

It cannot be questioned, that the appropriate use of the writ of error coram vobis is, to enable a court to correct its own errors-those errors which precede the rendition of judgment. In practice, the same end is now generally attained by motion; sustained, if the case require it, by affidavits; aud it is observable, that so far has the latter mode superseded the former, in the British practice, Blackstone does not even notice this suit among his remedies. It seems, it is still in frequent use in some of the states; and upon points of fact to which the remedy *extends, it might, perhaps, be beneficially resorted to, as the means of submitt ng a litigated fact [*148 to the decision of a jury; an end which, under the mode of proceeding by motion, might otherwise require a feigned issue, or impose upon a judge the alternative of deciding a controverted point, upon affidavit, or opening a judgment, perhaps, to the material prejudice of the plaintiff, in order to let in a plea. But in general, and in the practice of most of the states, this remedy is nearly exploded, or, at least, superseded by that of amending on motion. The cases in which it is held to be the appropriate remedy will show, that it will work no failure of justice, if we decide that it is not one of those remedies over which the supervising power of this court is given. by law.

The cases for error coram vobis, are enumerated without any material variation in all the books of practice, and rest on the authority of the sages and fathers of the law. I will refer to the pages of Archbold, for the following enumeration, (1st Vol. 234, 276-9.) "Error in the process, or through default of the clerk; error in fact, as, where the defendant, being under age, sued by attorney, in any other action but ejectment; that either plaintiff or defendant was a married woman, at the commencement of the suit; or died before verdict or interlocutory judgment, and the like." But all the books concur in quoting the language of Rolle's Abridgment, p. 749, "that if the error be in the judgment itself, and not in the process, a writ of error does not lie in the same court, but must be brought in another and superior court."

The writ of error in this case was but a substitute for a motion to the court below, to correct an error of its own, in granting, improvidently, a motion for leave to amend. Many years had elapsed since entering a judgment in ejectment; the term declared on had long since expired; the terre-tenant was changed; only one of the original defendants survived, and he had removed to a great distance from the premises recovered; on him alone, notice of the motion was served; and the court, unaware of these facts, granted leave to amend the declaration in the original suit, by extending the term more than twenty years, so as to enable the plaintiffs to sue out a writ of possession. This writ of error was sued out to enable the

United States v. Wilson.

court *below to correct that error; they have ordered that it shall be corrected; and from tha torder to set aside their former order and quash the writ of possession, is the appeal now made to the reserving power of this court.

We think the case comes precisely within the rule laid down by this court, in the case of Walden v. Craig, 9 Wheat. 576; with this difference, that the latter was a case in which the court thought so favorably of the claim of the plaintiff in error, that they would have sustained the suit if it had been possible. The court there express themselves thus: "There is peculiar reason in this case, where the cause has been protracted, and the plaintiff kept out of possession beyond the term laid in the declaration, by the excessive delays practised by the opposite party. But the course of this court has not been in favor of the idea, that a writ of error will lie to the opinion of a circuit court, granting or refusing a motion like this. No judgment in the cause is brought up by the writ, but merely a decision on a collateral motion, which may be renewed."

In that case, as in this, the motion was to extend a term in ejectment, after judgment; but where the plaintiff's delay in proceeding with his writ of possession was not attributable to his own laches. He had been arrested in his course, by successive injunctions sued out by the defendants. This court did there recognise the case of delay by injunction, as one in which, in that action, the court might exercise the power to enlarge the term, even after judgment, and the particular case as one which merited that exercise of discretion; but dismissed the writ of error, because it was a case proper for the exercise of that discretion, and not coming within the description of an error in the principal judgment.

ON consideration of the motion made to dismiss this writ of error to the circuit court of the United States for the district of Kentucky, it is now here ordered and adjudged by this court, that this writ of error to the said circuit court be and the same is hereby dismissed with costs.

*150]

*UNITED STATES V. GEORGE WILSON.

Criminal law.-Pardon.

The defendant was indicted for robbing the mail of the United States, and putting the life of the driver in jeopardy, and the conviction and judgment pronounced upon it extended to both offences. After this judgment no prosecution could be maintained for the same offence, or for any part of it, provided the former conviction was pleaded.'

'One who accepts and complies with the conditions of a pardon, granted by the president, for acts done in aid of the rebellion, may plead the same in bar of proceedings for the confiscation of his property. Armstrong v. United States, 13 Wall. 154; Brown v. United States, McCahon 229. Such pardon restores to the grantee all his rights of property, not already vested in others by judicial proceedings. Ibid. A pardon, after conviction, releases a fine, though payable to the county. Cope v. Commonwealth, 28 Penn. St. 297. A pardon remitting the

whole of a penalty, for which judgment has been rendered, operates as well upon the moiety adjudged to the informer, as upon the portion coming to the United States. United States v. Thomasson, 4 Biss. 336. But a pardon, without words of restitution, does not restore an estate forfeited for treason. Aldrich v. Jessup, 3 Grant (Pa.) 158. It will not operate to the injury of a third person, so as to deprive him of a vested right. United States v. Morris, 1 Paine 231. The effect of a pardon, duly granted by the president, cannot be restricted by sub

United States v. Wilson.

The power of pardon, in criminal cases, has been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it. A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed, from the punishment the law inflicts for a crime he has committed; it is the private, though official act of the executive magistrate, delivered to the individual for whose benefit it is intended, and not communicated officially to the court.

It is a constituent part of the judicial system, that the judge sees only with judicial eyes, and knows nothing respecting any particular case of which he is not informed judicially; a private deed, not communicated to him, whatever may be its character, whether a pardon or release, is totally unknown, and cannot be acted upon. The looseness which would be introduced into judicial proceedings would prove fatal to the great principles of justice, if the judge might notice and act upon facts not brought regularly into the cause; such a proceeding, in ordinary cases, would subvert the best established principles, and would overturn those rules which have been settled by the wisdom of ages.

There is nothing peculiar in a pardon, which ought to distinguish it in this respect from other facts; no legal principle known to the court will sustain such a distinction. A pardon is a deed to the validity of which delivery is essential; and delivery is not complete without acceptance; it may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it to him.'

It may be supposed, that no being condemned to death would reject a pardon, but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional, and the condition may be more objectionable than the punishment inflicted by the judgment.2

The pardon may possibly apply to a different person, or a different crime; it may be absolute or conditional; it may be controverted by the prosecutor, and must be expounded by the court. These circumstances *combine to show, that this, like any other deed, ought to be brought [*151 "judicially before the court, by plea, motion or otherwise."3

The reason why a court must, ex officio, take notice of a pardon by act of parliament, is that it is considered as a public law, having the same effect on the case, as if the general law punishing the offence had been repealed or annulled.

CERTIFICATE of Division from the Circuit Court for the Eastern District of Pennsylvania.

At the April sessions 1830, of that court, six indictments were presented

sequent legislation. United States v. Klein, 13 Wall, 128.

S. P.

The transmission of a pardon to the marshal, and its receipt by him, is not a delivery to the prisoner. Exparte De Puy, 3 Ben. 307. Commonwealth v. Holloway, 44 Penn. St. 210; Commonwealth v. Kelly, 9 Phila. 556. If not complete, it may be revoked by the successor of the president by whom it was granted. Ex parte De Puy, ut supra. So, it may be recalled, after a delivery to the warden of the penitentiary, if obtained by false and forged representations and papers. Commonwealth v. Holloway, ut supra.

The president has power to grant a conditional pardon to a person under sentence of death, by commuting it into imprisonment for life; and if accepted, the convict cannot insist that the pardon is absolute, and the condition void. Ex parte Wells, 18 How. 307. If a pardon be granted on condition subsequent, on a breach thereof, the original sentence may be

enforced. Flavell's Case, 8 W. & S. 197; Commonwealth v. Haggerty, 4 Brewst. (Pa.) 326; People v. Potter, 1 Parker (N. Y.) 47. But the acceptance of a conditional pardon, which never becomes operative, is not an admission of the party's guilt. Scott v. United States, 8 Ct. Claims 457.

A pardon must be pleaded; the prison inspectors have no power to discharge a convict, upon its production. Commonwealth v. Shisler, 2 Phila. 256; Merritt's Case, 4 City Hall Rec. 58. Where a conditional pardon is granted, the fact that the party is in prison, under sentence, does not constitute such duress as will make his acceptance of the condition of no effect. Ex parte Greathouse, 2 Abb. U. S. 382. Where a prisoner was pardoned on condition of leaving the United States, within a limited time, it appearing that he had been insane during that period, the court enlarged the time for complying with the condition. People v. James, 2 Caines 57.

United States v. Wilson.

to, and found by, the grand jury against James Porter and George Wilson; one for obstructing the mail of the United States from Philadelphia to Kimberton, on the 26th day of November 1829; one for obstructing the mail from Philadelphia to Reading, on the 6th day of December 1829; one for the robbery of the Kimberton mail, and putting the life of the carrier in jeopardy, on the same day in November 1829; one for robbery of the Reading mail, and putting the life of the carrier in jeopardy, on the same 6th day of December 1829; one for robbery of the Kimberton mail, also on the 26th of November 1829; and one for robbery of the Reading mail, also on the 6th of December 1829. At the same sessions, two other indictments were presented to the grand jury, against the same defendants, in which they were severally charged with robbery of the Reading and Kimberton mail, and wounding the carrier, which were returned to the court as "true bills, except as to wounding the carrier." Upon the indictment for robbery of the Kimberton mail, and putting the life of the carrier in jeopardy, and also in the two last-mentioned indictments, a nolle prosequi was afterwards entered by the district-attorney of the United States. On the 26th day of April 1830, the defendants, James Porter and George Wilson, pleaded not guilty to the several bills upon which they were arrainged; and on the 1st of May, a verdict of guilty was rendered against them, upon the indictment for robbery of the Reading mail, and putting the life of the carrier in jeopardy. The circuit court, on the 27th of May 1830, sentenced the defendants to suffer death, on the 2d July following, and James Porter was executed in pursuance of this sentence.

Upon the 27th of May 1830, George Wilson withdrew the *pleas

*152] of not guilty to all the indictments against him, except those on

which a nolle prosequi was afterwards entered, and pleaded guilty to the

same.

The indictment for robbery of the Reading mail, and putting the life of the driver in jeopardy, upon which James Porter and George Wilson were tried and convicted, was in the following terms:

"Eastern district of Pennsylvania, to wit: The grand inquest of the United States of America, inquiring for the eastern district of Pennsylvania, upon their oaths and affirmations, respectively, do present, that James Porter, otherwise called James May, late of the eastern district aforesaid, yeoman, and George Wilson, late of the eastern district aforesaid, yeoman on the 6th day of December, in the year of our Lord 1829, at the eastern district aforesaid, and within the jurisdiction of this court, with force and arms, in and upon one Samuel McCrea, in the peace of God and of the United States of America then and there being, and then and there being a carrier of the mail of the United States, and then and there intrusted therewith, and then and there proceeding with the said mail, from the city of Philadelphia to the borough of Reading, feloniously did make an assault, and him the said Samuel McCrea in bodily fear and danger, then and there, feloniously did put, and the said mail of the United States from him the said Samuel McCrea, then and there, feloniously, violently and against his will, did steal, take and carry away, contrary to the form of the act of con

1 See United States v. Wilson, Bald. 78.