8 employed, so that the intent be manifest. It is not necessary that the word "pardon" be employed; therefore a writing by the president under the seal of the United States, directing the discharge of a person sentenced to imprisonment for robbing the mail, was held to be a pardon. It will be observed that the term "grant" has been several times employed in the foregoing statement of the rules of law invoked to aid us in the elucidation of this question. What is a grant? An act evidenced by letters-patent under the great seal, granting something from the king to a subject. A transfer by deed of that which cannot be passed by livery. A pardon may be granted on condition precedent or subsequent, and the party remains liable to punishment, if the condition is not performed. The only limitation upon the conditions which may be imposed, is that they must not be impossible, immoral or illegal. Any punishment recognized by the statute, or the common law enforced in the forum, may be substituted for that punishment inflicted in the given case.10 A conditional pardon is one with a condition attached, or one upon any terms that the pardoning power pleases to affix. This is recognized by the English books. The grant of a conditional pardon simply implies a contract between the Sovereign power and the criminal, that the release may be upon the conditions imposed and accepted by the criminal. 12 A conditional pardon differs materially from a mere commutation of sentence. The former being a grant, there must inhere in it all of the appropriate elements of such contract; but the latter is the substitution of a less for a greater punishment by authority of law, and may be imposed upon the convict without his acceptance, and against his consent. 18 Now, if a 13 Hoffman v. Coster, 2 Whart. 453; Jones v. Harris, 1 Strobh. 160. 7 Cruise Dig., tit. 33, 34. 8 Williams on R. R., pp. 147-9. 92 Hawk. P. C., ch. 37, § 45; 3 Thomas' Co. Litt. 569, 615 N. M., and authorities; Patrick Madden's Case, 1 Leach's Cas. 220, 263; People v. James, 2 Caine's, 57; Radcliff's Case, Fost. Cr. Law, 41. 10 Lee v. Murphy, 22 Gratt. 789, 12 Am. Rep. 563. 111 Chitty's Cr. Law, 714; 2 Hawk. P. C., tit. Pardon; 1 Leach's Cr. Law, 223, 393; In re Parker, 5 M. & W. 32. pardon, that is, the ordinary executive act of clemency of which we have been treating, possess these qualities, its close analogy to the ordinary deed of gift is at once apparent. Delivery is an essential. But "delivery is not complete without an acceptance." "The delivery of a written contract is any act, whereby the party delivering it relinquishes his power over the writing, with 14 the expressed or implied intent that it shall operate as a contract; the other party, in fact, or in presumption of law, consenting thereto." "Delivery and acceptance are complete when the grantor has parted with his entire control or dominion over the instrument, with the intention that it shall pass to the grantee, and the latter assents to it either by himself or agent. by himself or agent."16 It is then apparent from the very nature of a pardon, having due regard to the rules applicable to all like contracts, both in England and wherever the common law prevails, that no man can be coerced, against his consent, into an acceptance of the gift. Under many circumstances acceptance may indeed be presumed, especially of that which is apparently for one's benefit. A reception of a pardon may, of course, be by an agent, as in the case of any gift; and the warden of a penitentiary may be deemed, in the absence of opposing proof, the agent of the prisoner. So we find some conflict in the books as to the questions of the necessity of pleading affirmatively; of how the matter shall be averred; as to the stage in the proceedings when the matter shall be brought before the court; what the court will judicially notice; the burden of proof, and similar matters. The underlying principles, however, have not been departed from; and the views of the courts accord well with the dictates of common sense. A pardon might be granted upon conditions so onerous that its rejection would be far preferable to an acceptance. It might be granted and forced upon one who would rather prosecute his writ of error to secure a reversal of the judgmen of conviction. The case referred to at the beginning of this article illustrates this phase of the subject. In the year 1833, this question came before the Supreme Court of the United States, in a 14 Marshall, C. J., in U. S. v. Wilson, infra. 16 Rosson v. State, 23 Tex. App. 287; Hunnicutt v State, 18 Tex. App. 498. case where a prisoner convicted of robbing the mails and condemned to death, refused to plead his pardon or in any manner avail of it. The opinion by Marshall, C. J., may be considered the leading case in the United States, and, so far as the writer has discovered, has been constantly followed. After referring to the powers conferred by the constitution upon the president, to the immemorial exercise of such powers by the English nation, to the principles respecting the operation and effect of a pardon found in the English books, Judge Marshall proceeds: "A pardon is a deed, to the validity of which delivery is essential, and delivery is not complete without accept ance. 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 on 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 as in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment." It might be that in a capital case where the prisoner refused a pardon, the executive could prevent execution of the sentence; but this does not affect the judicial question we are discussing. In Virginia, the court, recognizing the distinction between a pardon and a commutation of sentence, say: "It is to be borne in mind that there is a material distinction between a conditional pardon and a mere commutation of punishment. A conditional pardon is a grant, to the validity of which acceptance is essential." It may be rejected by the convict; and, if rejected, there is no power to force it upon him."'18 In Pennsylvania, during the civil war, a pardon had been granted by Governor Curtin, which was procured through a forged application or request from the war department of the United States government. The pardon had been delivered to the warden of the penitentiary for the prisoner. Upon discovery of the fraud committed, and before the prisoner's discharge, it was recalled and annulled by the executive authority. Upon habeas corpus this act of the governor was sustained. The opinion explicitly holds a pardon to be a grant or charter requiring delivery and acceptance; con 17 U. S. v. Wilson, 7 Pet. 150. 18 Lee v. Murphy, supra. cedes that in the absence of proof prima facie, a delivery to the warden of the penitentiary would suffice, but states that this presumption may be overcome. In this case 19 the fraud committed, would of itself authorize 19 Com. v. Holloway, 8 Wright, 210. 22 Hunnicutt v. State, supra. 23 In re De Puy, 3 Ben. 307, 4 Am. Law Rev. 188. 24 73 Ala. 517. nor accepted by the prisoner. The court refer to the similarity, in its nature and effects, of a pardon under both State and federal governments, to that emanating from the representatives of the British crown in the parent country, whence our own jurisprudence is derived; and define a pardon alike under both systems, as a "mere act of grace, or governmental forgiveness of an offense, by which the penalty of the crime is legally remitted." "The proposition is undeniable" say the court, "at least on authority, that a pardon, in order to be complete, must in contemplation of law be delivered and accepted. We think the principles applicable to the delivery of a pardon and of an ordinary deed of gift must be considered as analogous. This court also approves the view that delivery and acceptance may be implied from circumstances. Similar views are expressed in other cases.25 This last case recognizes the view that delivery and acceptance may be implied from circumstances. There the recipient of the favor was availing himself of the benefits of the pardon, from which the court inferred that he had accepted it. Many inter esting collateral questions, as before suggested, have arisen, but this article has already assumed proportions not contemplated at the outset. A discussion of these matters, such as the doctrine of presumption, judicial knowledge, the effect of legislative acts, cannot affect the main principles we have been investigating. It is believed that enough has been said to demonstrate the cor. rectness of the position first announced. Whenever it is desired to extradite a criminal who is undergoing sentence, and who would naturally resist such an attempt to remove him, it may be easily accomplished by commuting his sentence, by striking off all but a fraction of his term of imprisonment. This act he may not resist. His assent is not a prerequisite to the validity of this act of commutation. By cutting off all but a day remaining of his term of imprisonment, he may with facility be removed to the scene of his, perhaps more henious achievements. But a grant of freedom in invitum, is not recognized by authority as valid, and is without utility for all purposes. It may be argued that this raises a nice distinction which is without practical 25 Ex parte Reno, 66 Mo. 266; State v. Baptiste, 26 La. Ann. 134. 1. One who converts the property of another is liable therefor. 2. Every one who aids and assists in the conversion of the chattels of a third person is liable for their value. 3. A mortgagee of chattels, who is out of possession, and not entitled to possession by his mortgage, cannot maintain an action against a stranger for conversion. 4. In an action by a mortgagee of chattels for conversion of mortgaged property, he must, in his petition, plead the facts which create his special ownership in the property, and show his right to the possession of the same. NORVAL, J.: Warren Fales resides in Cuming county, and is engaged in the business of raising, feeding, buying and selling of cattle. He executed and delivered to the plaintiff, John L. Hill, three chattel mortgages, on 219 specifically described steers, then in the possession of Fales, in said county, to secure the indebtedness incurred for the purchase price of the cattle, which mortgages are described as follows: "One dated March 15, 1892, to secure $463.96, duly filed for record on the 26th day of the same month; another dated April 6, 1892, for the sum of $2,860.52, which was duly recorded two days later; and the other was given May 21, 1892, for $1,440.82, which was duly filed for record six days after its date.” Subsequently, on June 14, 1892, Fales gave to the Campbell Commission Company, of Chicago, one of the defendants herein, a chattel mortgage on 300 steers; and on November 4, 1892, Fales gave said company a second chattel mortgage on 80 steers. On October 20, 1892, Fales executed and delivered to the defendants Foley & Chittenden, of South Omaha, a chattel mortgage on 170 steers, to secure an indebtedness of the mortgagor to said lastnamed firm. The evidence shows the cattle belonging to Fales, and on which he had executed mortgages as aforesaid, were shipped to, and sold by, the Campbell Commission Company, as follows: 80 head on January 18, 1893, and 243 head on January 27th of the same year. On the next day, 45 steers owned by Fales were shipped to South Omaha, and sold by the defendant Foley & Chittenden. Plaintiff contends that the foregoing shipments included 100 steers, upon which he held senior mortgage liens, and that said cattle were sold by defendants without plaintiff's knowledge and consent. This action was instituted in the court below, to recover damages for the conversion of cattle covered by plaintiff's mortgages. The defendants recovered verdicts upon the trial, and, from the judgment rendered thereon, plaintiff prosecutes a petition in error. The record discloses that, at the trial, plaintiff, in open court, limited bis claim to a recovery to the conversion of cattle by the defendants included in the shipment under the date of January 27th, already alluded to. The evidence contained in the bill of exceptions tended to show that said 243 head were shipped to, and sold by, the Campbell Commission Company, without plaintiff's knowledge or consent; that he held superior mortgage liens upon a portion of the cattle included in said shipment; that one Clausen, the agent and representative of the Campbell Commission Company, and Foley, of said firm of Foley & Chittenden, procured the cattle to be shipped, assisted Fales cutting out the 243 steers from the remainder of the herd, in driving them to Pender, and in loading them on the cars at that place for shipment to Chicago. Foley and Fales went with the stock to Chicago, where the cattle were delivered to, and sold by, the Campbell Commission Company, and the proceeds were applied by the defendants to their own use. Instructions 5, 6, 9, and 10, given by the court on its own motion, and defendants' eighth request, are criticised by counsel for plaintiff. The first four of these are in the language following: "(5) But, if you find from a preponderance of the evidence that there was some of the P and K cattle in the shipment of 243 head, you will then further inquire and determine how and under what circumstances, and by whom, the said shipment was made; and you are instructed that if said shipment was made by Warren Fales of his own volition, and without insistence or direction from the defendants, or either of them, then the defendants would not be liable in this action, and your ver. dict should be in favor of defendants. (6) To justify a verdict in favor of the plaintiff, it must appear from a preponderance of the evidence that defendants, or one of them, directed and caused said shipment to be made for their own use and benefit, and without the consent of the plaintiff, and that there were cattle in said shipment on which plaintiff held a first mortgage lien." (9) If said shipment of 243 head was made voluntarily by Warren Fales, and not by the direction of the defendants or either of them, the plaintiff cannot recover in this action. (10) The fact alone that James Foley assisted in assorting and loading the cattle, and went to Chicago with them, would not justify a verdict against him or any of the defendants. To hold the said Foley or his firm liable, it must appear that he was acting in a capacity different from a hired man, or in giving neighborly assistance. It must appear from the evidence that the shipment was made by reason of some direction or control of one or both of the defendants in pursuance of which said Foley acted." The defendant's eighth request was to the effect that if the mortgagor, Fales, shipped the cattle of his own volition, and that the Campbell Commission Company took no part in procuring the shipment to be made, except as requested by Fales, and that said company acted in good faith in selling the cattle without any intention to appropriate the cattle, or the proceeds of the cattle, on which plaintiff had a lien, the plaintiff was not entitled to a verdict. The following propositions are deducible from the authorities: A conversion is any unauthorized act which deprives the owner of his property permanently or for an indefinite time. Stough v. Stefani, 19 Neb. 468, 27 N. W. Rep. 445. In an action for conversion, the motive which prompted the defendant to dispose of, or appropriate to his own use, the property of plaintiff, is an immaterial issue. Whether defendant acted in good faith or not is of no consequence. Morrill v. Moulton, 40 Vt. 242; Freeman v. Underwood, 66 Me. 229; Miller v. Wilson, 98 Ga. 567, 25 S. E. Rep. 578; Union Stockyard & Transit Co. v. Mallory, Son & Zimmerman Co., 157 Ill. 554, 41 N. E. Rep. 888; Hoffman v. Carow, 22 Wend. 285; Koch v. Branch, 44 Mo. 542; Knapp v. Hobbs, 50 N. H. 476; Lee v. Mathews, 10 Ala. 682; Spraights v. Hawley, 39 N. Y. 441; Kimball v. Billings, 55 Me. 147; Tobin v. Deal, 60 Wis. 87, 18 N. W. Rep. 634; Platt v. Tuttle, 23 Conn. 233; Lee v. McKay, 25 N. Car. 29. One who aids and assists in the wrongful taking of chattels is liable for a conversion, although he acted as agent for a third person. McCormick v. Stevenson, 13 Neb. 70, 12 N. W. Rep. 828; Stevenson v. Valentine, 27 Neb. 338, 43 N. W. Rep. 107; Cook v. Monroe, 45 Neb. 349, 63 N. W. Rep. 800; D. M. Osborne & Co. v. Plano Mfg. Co., 51 Neb. 502, 70 N. W. Rep. 1124; McPartland v. Read, 93 Mass. 231; Edgerly v. Whalan, 106 Mass. 307; Lee v. Mathews, 10 Ala. 682; Gage v. Whittier, 17 N. H. 312; Kimball v. Billings, 55 Me. 147; McPheters v. Page (Me.), 22 Atl. Rep. 101. Under the foregoing principles, each and all of the instructions to which reference has been made were manifestly erroneous. By the fifth, sixth, ninth and tenth instructions, the jury were advised that there could be no recovery if Warren Fales voluntarily, and of his own accord, without the aid and insistence of the defendants, shipped the cattle, even though the Campbell Commission Company sold the cattle on their arrival in Chicago without plaintiff's consent, and appropri ated the proceeds to their own use. The tenth instruction was faulty, because it conflicts with the rule which makes one who abets in a conversion of property liable for its value. The eighth instruction, given at the request of the defendants, was bad, since it exonerated them from liability if they acted in good faith. If one sells the chat tels of another without authority so to do, the act cannot be made any the less a conversion by proving that he acted in good faith, believing himself to be their owner, or was the agent of one whom he regarded to be the owner. It is argued by counsel for defendants that the amended petition does not state a cause of action; hence no prejudice could have resulted from the giving of the instructions. If plaintiff's pleadings would not have supported a verdict in his favor had one been returned, it is obvious that he cannot be heard to complain of errors in the charge of the court. It is not claimed by plaintiff that the paper filed by him, which is designated "Amended Petition," states any ground for action; but it is insisted that it is merely an amendment to the original petition, and was not intended to take the place of the latter. This position is undoubtedly sound, and was doubtless so regarded by the defendants in the court below, inasmuch as they answered both the "petition and the amended petition." Construing the original and the amended petitions together, they do not state sufficient facts to authorize a recovery for the conversion of the cattle. Plaintiff alleges the execution by Fales to himself of three chattel mortgages on 219 steers then in the possession of the mortgagor, the recording of the mortgages, that plaintiff had a lien on the property, and that defendants bad personal knowledge thereof. There is not pleaded a single condition contained in any of the mortgages, nor is it alleged that any condition has been broken, or that any portion of the mortgage debt is due. The averment that plaintiff has a lien on the cattle is a mere conclusion of law. The Code requires a pleading to set forth the facts, and not conclusions of law. Rainbolt v. Strang, 39 Neb. 339, 58 N. W. Rep. 96. No fact is stated showing that plaintiff had the right of possession of the property in dispute. The petition should have pleaded the facts constituting special ownership and plaintiff's right to possession at the commencement of the action. Hudelson v. Bank, 51 Neb. 557, 71 N. W. Rep. 304; Raymond v. Miller, 50 Neb. 506, 70 N. W. Rep. 22. The last case was an action for conversion by a mortgagee of chattels against a stranger, and the petition was held defective. In the opinion it was said: "It will be observed that there is no averment in the petition to the effect that plaintiffs are the general owners of the chattels in controversy, but that they predicate their right to recover damages for the alleged conversion merely upon a claim of special interest or ownership in the property, arising by virtue of a chattel mortgage. The terms and condition of the mortgage are not pleaded, nor any facts averred which disclose that any of the stipulations therein contained have been broken, or that anything is due plaintiffs upon the mortgage. Plaintiffs, in order to set forth a cause of action, were required to plead in their petition the facts constituting their special interest in the property, as well as the facts relied upon to entitle them to maintain an action for con version against the defendants. This they have not done." The following authorities sustain the doctrine that the mortgagee of chattels cannot maintain conversion against one who took wrongful possession of the same, where at such time he was not in possession, nor entitled to the immediate possession, of the property. 4 Am. & Eng. Enc. Law, 119; 1 Chit. Pl. 167, 618; Owens v. Weedman, 82 Ill. 409; Baker v. Seavey, 163 Mass. 522, 40 N. E. Rep. 863; Bank v. Fisher, 55 Mo. App. 51; Chandler v. West, 37 Mo. App. 631; Barnett v. Timberlake, 57 Mo. 499; Draper v. Walker, 98 Ala. 310, 13 South. Rep. 595. The judgment is affirmed. NOTE. Recent Cases as to Acts Constituting Conversion and Liability Therefor.-One who sells property as under a mortgage which was not included therein is liable for the conversion, whether he knew it was not included or not. Kenny v. Ranney (Mich.), 55 N. W. Rep. 982, 96 Mich. 617. Plaintiff purchased a building on land which he thereafter leased from the owner. By the terms of the lease, he could remove all buildings from the land at its expiration. Defendant purchased the land while the building was still there. Held that, on defendant's refusing to permit plaintiff to remove the building, he could recover for a conversion thereof. Osborn v. Potter (Mich.), 59 N. W. Rep. 606. Where a person to whom a load of cotton has been taken to be ginned refuses to allow the owner to take it away until he pays a bill owed by a third person, it is a conversion of the cotton. Hearn v. Bitterman (Tex. Civ. App.), 27 S. W. Rep. 158. An act inconsistent with the owner's right, as a refusal to give up property except at the end of a replevin suit, is sufficient to make out a case of conversion. Banking House v. Brooks, 52 Mo. App. 364. A creditor of an estate, who has possession of stocks payable to deceased as executrix, commits no conversion in holding them for her executor as against her successor in the administration of her husband's estate, pending the decision of said successor's suit against her estate for ber conversion of said stocks. Mills v. Britton, 29 Atl. Rep. 231, 64 Conn. 4. Where a railroad company kills an animal of another, and converts the same to its own use, it is liable in trover, whether the killing be negligent or not. Atchison, T. & S. F. R. Co. v. Tanner (Colo. Sup.), 36 Pac. Rep. 541. Where hogs were delivered to defendant for sale by him as broker, he is not liable in trover as for having wrongfully obtained possession of the hogs, though he failed to remit the proceeds. Lewis v. Metcalf (Kan.), 36 Pac. Rep. 345. An assignee for the benefit of creditors, knowing that the brewery and machinery of his grantor is subject to a prior mortgage, should separate therefrom any property not covered by the mortgage, and he cannot claim that a purchaser under the mortgage is guilty of conversion because he takes possession, under writ of sequestration, of casks constituting part of such machinery, and which at the time contain beer belonging to the assignee. Meyer v. Orynski (Tex. Civ. App.), 25 S. W. Rep. 655. Obtaining possession of property by purchase of the owner, knowing that he is incapable, because of intoxication, to make a contract, and retaining posses. sion to the exclusion of the rights of the owner, constitutes conversion. Baird v. Howard (Ohio Sup.), 36 N. E. Rep. 732. Where an auctioneer, though acting in good faith, sells goods, and pays over the pro ceeds to a party delivering the same to him, he is lia |