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Ex Parte Powell.

said by Mr. Wharton, it must be shown that a delivery was "manifestly intended." 2 Whart. Cont., § 677. It has been accordingly decided by this court, that where a mortgagor acknowledged the deed of mortgage, on the day of its date, before the Probate judge, and left it with him for registration, and it was recorded, this was prima facie a delivery, although the mortgagee never had possession of the deed, and knew nothing of its existence until after the death of the mortgagor. Elsberry v. Boykin, 65 Ala. 336. It saw declared in the same case, that the conveyance being for the benefit of the grantee, without conditions attached, the acceptance of the grantee would be presumed, and could be repelled only by proof of his actual dissent. Such is the prevailing rule as to acceptance, where an instrument is purely beneficial to the party to whom it is made, and is freed from the embarrassment of any burden, duty, or condition. 2 Greenl. Ev., § 297.

We are of the opinion in the present case, that the pardon in question must be regarded as having been constructively delivered and accepted, in legal contemplation. The delivery to the warden was a sufficient delivery to the prisoner, and the acceptance of the prisoner must be presumed, in view of his previous application for the pardon, and of its purely beneficial character.

The governor clearly intended the act of grace to the prisoner, and all the legal formalities were adopted by him, necessary to the proper execution of the instrument. He had given it his signature, and had handed it to the secretary of State, who had attested it, and affixed the seal of the State in all due form. The mailing of it to the warden was in itself a parting with dominion over it, and the act of grace must be deemed complete when the latter received it, if not before. This is true in view of the legal status and relationship of the warden toward the prisoner. He was not the mere messenger of the executive to deliver, but the constructive agent of the prisoner to receive. The prisoner was not, it is true, confined in the walls of the penitentiary, but he was in the constructive custody of the warden, and subject to his control and order in the Dallas county jail, under the express provisions of the statute. Acts, 1878-9, pp. 170-1. It is shown to have been the common usage to transmit pardons to the warden, and that he usually retained them as vouchers of authority to release convicts, and the parties are presumed to have had this usage in view. The pardon itself being directed to the warden, and being

Ex Parte Powell.

an executive mandate to him, ordering the release of the prisoner, is persuasive to show that it was never intended that it should go further than the warden, or be delivered to the prisoner personally. When the charter of the prisoner's pardon reached the hands of the warden, his constituted legal custodian, the executive act of grace was complete, and forever irrevocable. The warden had no more legal right to return it to the grantor through inadvertence, than he would have had to destroy it from malice.

The adjudged cases clearly sustain this view. The case of Commonwealth v. Halloway, 44 Penn. St. 210, was one involving the delivery of a pardon granted by the governor of Pennsylvania to one Crosse, who had been convicted of a felony, and sentenced to imprisonment in the State penitentiary. The pardon was delivered to the United States marshal under the belief that Crosse was needed by the government at Washington for special service in the war department, and was not to be handed to him until he had performed the service required of him. The marshal however delivered it to the warden and obtained the release of the prisoner for the required service. It was said by the court, that "by usage, its delivery to the warden is prima facie equivalent to delivery; or is constructive delivery to the prisoner; but it is open to be proved no delivery by showing circumstances that are inconsistent with the intention to deliver." The pardon in that case was pronounced void however because procured by false and forged representations independent of the question of delivery. In Ex parte Reno, 66 Mo. 266; s. c., 27 Am. Rep. 337, it was said that "simple intention on the part of the executive to bestow a pardon confers no right, and is perfectly nugatory until the intention may be said to be completed. This intention," it was added, " may be said to be fully completed when the pardon is signed. by the executive, properly attested, authenticated by the seal of the State, and delivered, either to the person who is the subject of the favor, or to some one acting for him, or on his behalf." It being shown that it was the custom to deliver pardons to the warden, it was held that the delivery was presumptively complete when the paper came to the hands of this officer, although it never reached the personal custody of the prisoner. In this case the instrument of pardon seems to have been purposely mislaid, or destroyed so as to prevent its personal delivery to the prisoner. Following the ruling in the Pennsylvania case, the court said: "A delivery of the pardon, under the circumstances

Ex Parte Powell.

in proof, is prima facie equivalent to delivery, or is constructive delivery to the prisoner." In DePuy's case, 3 Ben. 307, a pardon was granted to the prisoner by Andrew Johnson, president of the United States, and was transmitted by mail to a United States' marshal, to be by him delivered to the warden of Blackwell's Island penitentiary, where the convict was confined in the warden's custody. Before it passed from the hands of the marshal into those of the warden, it was recalled by President Grant, as Johnson's successor in the office of president. It was held by Blatchford, J., on an application for writ of habeas corpus, that there was no complete delivery until the pardon reached the hands of the warden, or keeper of the prison-that a delivery to the marshal was insufficient, because he was no more than "the messenger of the president" a somewhat doubtful proposition, which does not seem very obvious to our apprehension. In Marbury v. Madison, 1 Cr. 137, which was an application for mandamus to compel the delivery, by the secretary of State, of a commission as justice of the peace in the District of Columbia, it was held that the appointment was complete without a delivery of the commission. But it was added, that if delivery was deemed essential, as argued by counsel at the bar, it was not necessary that it should have been made personally to the grantee of the office. Said the great chief justice, who delivered the opinion of the court: "The law would seem to contemplate that it should be made to the secretary of State, since it directs the secretary to affix the seal to the commission after it shall have been signed by the president. If then the act of delivery be necessary to give validity to the commission, it has been delivered when executed and given to the secretary for the purpose of being sealed, recorded, and transmitted to the party." The conclusion must have been reached upon the ground; that the secretary of State was the agent of the law, and not of the president, for the duty imposed upon him. In like manner, it was decided by the Supreme Court of Louisiana, in State v. Baptiste, 26 La. Ann. 134, that a mere communication from the secretary of the senate to the governor, informing him that a recommendation for pardon had been received and acted upon favorably, is sufficient evidence of the completeness of the act of pardon, no actual delivery being deemed necessary in order to give it validity.

So we are clearly of opinion, that the delivery of the pardon to the warden of the State penitentiary, under the circumstances of

Ex Parte Powell.

the present case, was in accordance with usage a delivery to the prisoner, who was in the warden's constructive custody, and that the intended act of grace was then completed and irrevocable. Being an act of mere clemency, without conditions, the law presumes that it was accepted, in the absence of evidence showing the prisoner's dissent. Ex parte Reno, 66 Mo. 266; s. c., 27 Am. Rep. 337; Com. v. Halloway, 44 Penn. St. 210.

The writ of habeas corpus and certiorari will be awarded by this court to bring the petitioner before us, together with the proceedings had before the Circuit judge, unless on another application before him, or some other judge having jurisdiction, the prisoner shall be discharged from custody.

CASES

IN THE

SUPREME COURT

OF

CALIFORNIA.

COLE V. SUPERIOR COURT.

(63 Cal. 86.)

Guardian ad litem power to contract for attorney fees.

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A guardian ad litem cannot bind those whom he represents by a contract with an attorney, fixing his compensation in the suit.

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MYRICK, J. A writ of review was granted on the application. of petitioner to review the action of the Superior Court had upon the following state of facts:

Catharine McKeever, an insane woman, and John McKeever, Jane McKeever, and Mary McKeever, minors, by their guardian ad litem, Margaret Hayes, commenced an action against the Market Street Railway Company, to recover damages for the death of Daniel McKeever, the husband of said Catharine, and the father of said minors. The said guardian ad litem employed the petitioner,

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