by reason of the representations complained of | Civil Procedure. Code, Proc. 227; Code Civ. is fatal to their attachment.

Haber v. Nassitts, 12 Fla. 610; Lowenstein v. Bew, 68 Miss. 265; Montague v. Gaddis, 37 Miss. 453: White v. Wilson, 10 Ill. 21; Ridg way v. Smith, 17 Ill. 33; Stewart v. Cole, 46 Ala. 648; Pickard v. Samuels, 64 Miss. 822; Drake, Attachm. § 68; Warder v. Thrilkeld, 52 Iowa, 134; Lyons v. Mason, 4 Coldw. 525; Russell v. Wilson, 18 La. 367.

Vann, J., delivered the opinion of the

court:

Proc. 635. Unlike the attachment against absent or absconding debtors under the Revised Statutes or the Stilwell act, which sequestered the property of the debtor for the benefit of all the creditors alike, this proceeding is for the benefit of the attaching creditor alone. It is not only created by statute, but has substantially none of the features peculiar to the common-law remedy. As said by a recent writer: "It amounts to the involuntary disposession of the owner, prior to any adjudication to determine the rights of the parties. It violates every principle of proprietary rights held sacred by the common law. It is, to some extent, equivalent to execution in advance of trial and judgment. Property is taken, under legal process, at the instance of one without even a claim of title, from the possession of another whose title is unquestioned. And, though the mere taking does not work any change in the ownership of the property, it seriously affects some of the most important incidents of that ownership, and may even be the means of thwarting the owner in his endeavors to meet the just demands against him." Wade, Attachm. § 2.

Owing to the statutory origin and harsh nature of this remedy, the section in question should be construed, in accordance with the general rule applicable to statutes in derogation of the common law, strictly in favor of those against whom it may be employed. Ibid.; Sharpe v. Speir, 4 Hill, 76, 86; Waples, Attachm.

The question certified to us for determination depends upon the construction of 636 of the Code of Civil Procedure, which prescribes "what must be shown to procure" a warrant of attachment against property. The learned counsel for the respective parties differ as to the rule of construction that should be applied; the one contending that it should be strict, because the provision is in derogation of the common law, while the other insists that it should be liberal, because the statute does not derogate from the common law, but merely amplifies a well-known common-law remedy. The process of attachment, as it existed under the common law, differed in its nature and object from the provisional remedy now known by that name. Its original purpose was to acquire jurisdiction of the defendant by compelling him to appear in court through the seizure of his property, which he forfeited if he did not appear or furnish sure ties for his appearance. 3 Bl. Com. 280; 1 23. Nonresidence, departure from the state, Rolle, Abr. Customs of London, K. 13; Knee- or concealment therein, with intent to defraud land, Attachm. § 6; Drake, Attachm. § 5; or to avoid the service of process, were at Ashley, Attachm. 11; Locke, Foreign At first the only grounds upon which an attachtachm. 12. It was part of the service of ment might issue. Code Proc. 1849, § 229. process in a civil action through a species of dis- Afterwards the statute was so extended as to tress, in which the goods attached were the an- provide that, in addition to the foregoing cient vadii or pledges. Bond v. Ward, 7 Mass. grounds, if the defendant "has removed, or is 123, 128: Gilbert, Law Distress. 24. As said about to remove, property from the state, with in the case last cited: "The practice of attach intent to defraud his creditors," or if he "has ing the effects of a defendant, and holding assigned, disposed of, or secreted, or is about them to satisfy a judgment, which the plain- to assign, dispose of, or secrete, property, with tiff may recover, when, perhaps, judgment the like intent," a warrant might be issued. may be for the defendant, is unknown to the Code Civ. Proc. 1891, 636. The section concommon law, and is founded on our statute tinued in this form until 1894, when the clause law." Its present purpose is not to compel ap now in question was added in these words: "Or pearance by the debtor, but to secure the debt where, for the purpose of procuring credit, or or claim of the creditor. It is a proceeding in the extension of credit, the defendant has made rem, and the process may issue, in certain cases, a false statement in writing, under his own whether the defendant has been served with a hand or signature, or under the hand or sigsummons or not, although inability to serve, nature of a duly authorized agent, made with through the fault of the defendant, is a his knowledge and acquiescence, as to his ground upon which the warrant may be financial responsibility or standing." Laws granted. It exists as a provisional remedy 1894, chap. 736, § 1. It will be observed that only when authorized by statute, and, as such, prior to this amendment the grounds upor is comparatively recent in its origin. While which attachments might be issued were not attachments were permitted in justices' courts personal to any creditor, but affected all alike. by the Revised Statutes, and were extended They were of two classes: (1) Those relating somewhat by the nonimprisonment act, they to the person of the defendant, such as nonreswere proceedings in the nature of original idence, departure from the state, or concealprocess, by which the action was commenced. ment therein; (2) those relating to his property 2 Rev. Stat. p. 274; Laws 1831, chap. 300; Brad- and his fraudulent conduct in connection theremer, Attachm. 2. See also 1 Webster & S. with. None of them related to the creation of 236; 2 Rev. Laws 1813, p. 157. Attachment the debt, and, with a single exception, all were as a provisional remedy, with the object of se- founded upon acts done with a furtive intent, curing a debt by preliminary levy upon prop which injured one creditor the same as anerty to conserve it for eventual execution, was other, either by preventing the service of proccreated by the Code of Procedure, and has ess, or depleting assets in which all were interbeen continued and extended by the Code of❘ested. The exception, nonresidence, while not

250

NEW YORK COURT OF APPEALS.

agency, and it rests quietly upon the books
without coming to the knowledge of anyone
No right has
who relies upon it, no reparation is needed, be-
cause no mischief has resulted.
been violated, no wrong suffered, and no dam-
ages sustained. Although the statute is silent
upon the subject, we think that the strict rule
of construction that we have adopted requires
us to hold that the false statement must be suc-
But suppose
cessful in procuring credit from someone in or-
der to authorize an attachment.
the specified fraud has been successfully prac-
ticed upon one creditor, does that allow another
to take advantage of it, although it had not
We think not, for the
come to his notice when he gave or extended
credit to the debtor?
reasons already given, but mainly because he
was not injured. He was neither deceived nor
He gave
defrauded by a statement of which he had not
heard when his debt was contracted.
no credit on the strength of a representation
made at some other time to some other person.
We think that the remedy, so far as it is based
upon the clause under consideration, is con-
fined to the creditor defrauded, and that no
one can resort to it except those who gave an
The inconvenience and in-
extended credit to the debtor, relying upon his
statement as true.
justice resulting from any other construction
are so manifest as to bear strongly upon the
intention of the legislature, for a statute
should be sc construed, when the language will
permit, as to make it practicable, just, and rea-
Rosenplaenter v. Roessle,
It is unreasonable to sup-
sonably convenient.
54 N. Y. 262, 265.
pose that the legislature intended that a single
false statement should follow a man through
This would
life, and expose his property to attack by his
creditors at any time they chose.
virtually withdraw from his property for all
time the safeguards which protect the property
of all other persons. It would be perpetual out-
lawry applied to his property, and would tend
It would violate
not only to drive him out of business, but to
expel him from the state.
every precedent and all analogies, and we think
that, if the legislature intended to impose such
a severe penalty for possibly a single false
step, it would have said so in plain terms. We
are thus led to answer the question certified in
the negative, and to affirm the order appealed
from, with costs.

wrongful, related to jurisdiction, and applied
to all creditors with the same force. As all of
the grounds were general and impersonal, af
fecting all of the creditors in the same way, of
course any creditor could take advantage of
any ground that existed. By the amendment
of 1894, however, a new element was intro-
duced, which the defendants claim is personal
to the creditor giving or extending the credit,
but which the plaintiffs claim is general in its
effect, and designed to provide immediate se-
curity for all creditors whenever the debtor is
proved to have been guilty of making written
misrepresentations as to his financial standing
for the purpose of procuring credit. If the in-
tention was to extend the remedy only to a
creditor injured by the fraud, the statute is not
a radical departure in legislation, for the prac
tice of fraud, provided it results in lawful dam
ages, is an authorized ground for an order of
arrest. If, however, the plaintiff's contention
is correct, an unprecedented rule has been
made, which may destroy the credit system,
and bring confusion to the transaction of busi-
ness. While the statute prescribes the purpose
of the false statement, it does not, in terms,
prescribe the effect, nor require that the state-
ment should result in procuring credit; yet it
would be unreasonable to hold that the legis
lature intended that a statement which, al-
though false and made with evil motives, was
absolutely harmless, should be followed by
such grave consequences. It would be an an-
omaly in commercial law to permit a wrong
ful act that injured no one to disrupt a man's
business by allowing any creditor to seize his
The law furnishes a
property at any time.
remedy only for such wrongful acts as result
in injury. That is the theory upon which ac-
tions are founded, and upon which all provi-
sional remedies are allowed, except where the
debtor is not amenable to ordinary process,
and it is necessary to proceed against his prop-
erty, because there is no jurisdiction of his
person. Wrongs not simply designed, but ex
ecuted, or in process of execution, are those
Abstract wrongs are
recognized by the law.
disregarded, because they do no harm.
false statement is made for the purpose of pro-
curing credit, but without having that effect,
no creditor is injured. If it is made to one
who does not believe it, or does not act upon
it, why should it become the basis of this sum-
mary remedy? If made to a commercial
34 L. R. A.

If a

All concur.

FLORIDA SUPREME COURT.

Harry SINGLETON, Piff. in Err.,

v.

STATE of Florida.

(....... Fla....... .)

*1. The 12th section of article 4 of the
Constitution of 1885 conferred power upon the
governor, justices of the supreme court,and attor-
ney general, or a major part of them, of whom
the governor shall be one, to permanently remit
fines and forfeitures, to commute punishment
and grant pardons after conviction, in all cases
except treason and impeachment, subject to such
regulations as may be prescribed by law relative
to the manner of applying for pardons, and the
pardoning power thus conferred is exclusive,
and cannot be exercised by the legislature.
2. By the amendment of § 12, article 4,
adopted this year, the secretary of state, comp-
troller, and commissioner of agriculture take
the places of the justices of the supreme court,
as members of the board of pardons.
3. A full pardon of an offense not only
blots out the crime committed, but removes
all punishment and disabilities resulting from
the conviction. When extended to a convict in
prison, it relieves him and removes his disabilities,
and, when granted after his time of imprisonment
has expired, it removes all that is left of the con-
sequences of conviction-his disabilities.
4. By statute the

crime of larceny in the courts of this state disqualifies the convict as a witness, and his pardon for this offense has the effect to restore his competency to testify as a witness.

5. An act of the legislature provided that a party who had been convicted of the crime of larceny should be restored to civil rights. Held, without deciding whether a restoration to civil rights would include the restoration of competency as a witness, lost by reason of the conviction of the crime, that before the party could testify it must have such effect, and, so construed, it was not competent for the legislature to so enact.

6. An accused is entitled to be tried by an impartial jury, and when it is made to appear to the trial judge that a fair and impartial trial cannot be had in the county where the offense was committed, he should direct that the accused be tried in another county. This is a matter left largely to the discretion of the trial court, and its ruling on such matters will not be disturbed unless it appear from the facts presented that the court acted unfairly and committed a palpable abuse of sound discretion.

ERR

(November 17, 1896.)

RROR to the Circuit Court for Hillsborough
County to review a judgment convicting
conviction of the defendant of murder. Reversed.
The facts are stated in the opinion.

*Headnotes by MABRY, Ch. J.

NOTE.-Legislative power to grant pardon or amnesty.

I. After conviction.

II. Before conviction.

III. Incidental or implied pardon.

I. After conviction.

governor and other officers constituting a board, is exclusive, is based on well-known principles of constitutional interpretation, and is strengthened by the constitutional provision separating the departments of government and providing that no person properly belonging to one of them shall exercise powers appertaining to either of the others except when the Constitution expressly provides for it. On the other hand, the chief authority relied upon by the court is that of State v. Sloss, 25 Mo. 291, 69 Am. Dec. 467, which, as will appear in the next division of this note, can hardly be re

The Constitution of the United States and the constitutions of the various states, with few exceptions, confer upon the executive the power to grant pardons and reprieves without any express declaration as to the power of the legislative department in such matters. Most of the state con-garded as authority, at least under Constitutions stitutions expressly provide that the governor may which say the governor may pardon “after convicgrant pardon "after conviction;" in some instances tion." the language is general and merely provides for pardon, without specifying whether it shall be before or after conviction. In a few states the pardoning power is conferred, not upon the governor alone, but upon a board of pardons.

In a later Missouri case, Ex parte Parker, 106 Mo. 551, the court said: "We all agree the legislature cannot pardon a defendant convicted of crime, but we think affixing an alternative punishment is wholly unlike a pardon. Changing a tine to imprisonment is not pardoning the crime." This was said in upholding a statute which gave power to a justice to commute a fine to imprisonment for a definite time.

That the legislature cannot commute the punishment fixed by law after a sentence has been given because this is a necessary incident of the governor's pardoning power is also declared in the Opinion of the Justices, 14 Mass. 472.

The above case of SINGLETON V. STATE is the first in which the power of the legislature to grant a pardon to a particular person after conviction has been denied by a direct adjudication, although there are cases referred to in the next subdivision of this note in which legislative pardon or amnesty before conviction has been held unconstitutional. There has been much contrariety of opinion among judges and legal writers on the question of the relation between the legislative and executive But in People v. Stewart, 1 Idaho, 546, a statute departments with respect to this subject of pardon approved by the governor of the territory remitand amnesty. As to the legislative power to grant ting the penalty imposed for an offense is sustained amnesty or pardon before conviction, it will be seen as equivalent to a pardon. This was the case of a in the later division in this note that the weight of special statute vacating a judgment on conviction authority is in favor of the power. But as to the of assault and battery and remitting the fine and legislative power to pardon after conviction, the imprisonment on the ground that the defendant decisions, while not altogether satisfactory or had been previously convicted and punished under reconcilable, are on the whole against the pow- sentence of another court for the same offense. er. The position of the Florida case above re- The opinion is very brief, and merely holds that it ported, that the express grant by the Constitution is competent for the legislature to pass a law reof the pardoning power "after conviction," to the Imitting punishment. This, it will be noticed, was a

Messrs. Wall & Stevens for plaintiff in | but to remove and obviate the objection on ac

error.

Mr. William B. Lane, attorney general, for the State.

Mabry, Ch. J., delivered the opinion of the

court:

The plaintiff in error was indicted, tried, and convicted of murder in the first degree, and from the sentence of the court imposing the death penalty a writ of error has been sued

out.

An error was committed during the progress of the trial of the cause that will necessitate a reversal of the judgment rendered against the accused. The state introduced as a witness one Howard Bishop, who testified to material and damaging facts against the accused. It is not deemed necessary to set out the testimony of the witness, as there can be no doubt that it bore directly upon defendant's guilt, was calculated to influence the jury, and, if improperly admitted, was harmful, and cannot be considered otherwise than as reversible error. An objection was made to Bishop's testifying on the ground that he had been convicted in a court in this state of the crime of larceny, and under the statute he was not a competent witLess. It was conceded that the witness, Howard Bishop, had been convicted at the spring term, 1889, of the circuit court for Marion county, of the crime of larceny, and was sentenced to six month's imprisonment in the jail of said county;

territorial case and no constitutional or statutory provision as to the pardoning power was referred to, although the power of the governor of a territory to grant pardons was conferred by U. S. Rev. Stat. § 1844.

So, in two Georgia cases, Bird v. Breedlove, 24 Ga. 623, and Bird v. Meadows, 25 Ga. 251, the validity of a legislative pardon was sustained by implication. In these cases the controversy was as to the right to recover compensation for services to secure the pardon from the legislature, and recovery was allowed, but no constitutional question seems to have been raised in either of them.

An act for relief from a forfeiture on a bail bond was held valid in People v. Bircham, 12 Cal. 50, on the ground that the judgment was property of the state, and could be released by the legislature in such form and on such conditions as it chose to prescribe. But it does not appear that any question was raised as to infringement thereby on the governor's pardoning power.

On the other hand, a statute for the repayment of money paid by sureties on the bond of a clerk | -to satisfy a fine was held unconstitutional in Haley v. Clark, 26 Ala. 439, on the ground that it amounted to a pardon and infringed upon the governor's function.

General pardons, "when found expedient, have been issued under the sanction of an act of Parliament." 1 Chitty, Crim. L. 771. But the constitutional question which is presented under our form of government cannot arise in case of an act of Parliament.

II. Before conviction.

count of this conviction the state offered in evidence and read to the court the Act of 1895, chapter 4457, entitled "An Act to Restore Howard Bishop, late of Marion County, Florida, to Civil Rights." In the preamble to this act the conviction and sentence of Bishop, in the Marion county circuit court, for the larceny of a watch, is recited; also that about a year subsequent to the conviction it was established to the satisfaction of the party to whom the watch belonged that Bishop was not guilty of the crime for which he had been convicted, and for the last five years he had lived in the city of Tampa, served on the police force of the city, and had conducted himself uprightly as a man and officer. The provision of the act is that the said Howard Bishop be and is hereby restored to civil rights." Section 1096 of the Revised Statutes provides that persons convicted in any court in this state of murder, purjury, piracy, forgery, larceny, robbery, arson, sodomy, or buggery shall not be competent witnesses. The Constitution provides ( 11, art. 4) that "the governor shall have power to suspend the collection of fines and forfeitures, and grant reprieves for a period not exceeding sixty days, for all offenses, except in cases of impeachment. In cases of conviction for treason he shall have power to suspend the execution of sentence until the case shall be reported to the legislature at its next session, when the legislature shall either

| shop act committed before a certain date, provided they should pay the costs and a certain fee to the district attorney. The court held this act unconstitutional, and said: "It is as effectually a pardon as though it were one in form." Another ground of the decision was that the act interfered also with the functions of the judicial department. The constitutional provision as to pardon was not quoted in this case, but it seems to have been decided while the original Missouri Constitution of 1820 was in force, which in art. 4, § 6, provided in general terms for "reprieves and pardons" by the governor, without specifying whether or not they could be granted only after conviction.

This was followed by the case of State v. Todd, in 26 Mo. 175, which was little more than a memorandum case, and followed the prior case without aditional discussion.

Later Missouri constitutions expressly limit the governor's power to pardon by the words “after conviction."

The third case was that of State v. Fleming, 7 Humph. 152, 46 Am. Dec. 73, in which it was held that a statute prohibiting any fine, forfeiture, or imprisonment to be imposed or recovered for any offense under a certain prior statute is unconstitutional as applied to pending indictments for prior offenses, although convictions have not yet been reached. But this decision was rendered under a Constitution which gave the governor power togrant pardons "after conviction." Whatever may be the effect of constitutional grant of power to the executive to grant "pardons" without limiting it to cases after conviction, it seems unreasonable to find in a grant of power to pardon "after conviction" any restriction on the legislative power in the matter before conviction.

In three cases the power of the legislature to grant general pardon or amnesty to a class of offenders, although they have not yet been convicted, Such is the view taken in the Arkansas case of has been denied. One of these is the case of State State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600, where v. Sloss (1857) 25 Mo, 291, 69 Am. Dec. 467. The stat- the court decided that the governor's constituute in this case attempted to relieve from prosecu- tional power to pardon "after conviction" does not tion all persons indicted for offenses under a dram-exclude legislative power to grant pardon and am

pardon, direct the execution of the sentence, or government the framers of our Constitution had grant a further reprieve; and if the legislature the right to lodge the pardoning power where shall fail or refuse to make disposition of such they saw proper in the departments of governcase, the sentence shall be enforced at such ment. We know from judicial history that time and place as the governor may direct.' the pardoning power was a part of the royal Provision is also made in the section for re- prerogative in England, and Chief Justice ports to the legislature by the governor of the Marshall, in speaking for the court in United fines or forfeitures remitted, or reprieves, States v. Wilson, 32 Ŭ. S. 7 Pet. 150, 8 L. ed. pardons, or commutations granted. The 12th 640, says: "As this power has been exercised section of the same article, as it stood when the from time immemorial by the executive of that act of 1895, supra, was passed, provided that nation whose language is our language, and to "the governor, justices of the supreme court, whose judicial institutions ours bear a close and attorney general, or a major part of them, resemblance, we adopt their principles respectof whom the governor shall be one, may,ing the operation and effect of a pardon, and upon such conditions, and with such limitations look into their books for the rules prescribing and restrictions as they may deem proper, re- the manner in which it is to be used by the mit fines and forfeitures, commute punishment, person who would avail himself of it." As and grant pardons after conviction, in all cases to the exercise of the power under our system except treason and impeachment, subject to of government we must look to our organic such regulations as may be prescribed by law law, the Constitution. By the 11th section of relative to the manner of applying for pardons." article 4 the governor alone is given power to Under the amendment to this section, adopted suspend the collection of fines and forfeitures, this year, the secretary of state, comptroller, and grant reprieves for a period not exceeding and commissioner of agriculture take the sixty days, for all offenses, except in cases of places of the justices of the supreme court. impeachment, and in cases of conviction for Article 2 of the Constitution divides the powers treason the legislature can pardon on the susof government into three departments-legisla-pension of the sentence by the governor. The tive, executive, and judicial-and provides 12th section of the article, as amended, conthat no person properly belonging to one of fers power upon the governor, secretary of the departments shall exercise any powers appertaining to either of the others, except in cases expressly provided for by the Constitution. In the distribution of the powers of

state, comptroller, commissioner of agriculture, and attorney general to permanently remit fines and forfeitures, commute punishment, and grant pardons after conviction, in all cases

limited to soldiers of either army for acts done under color of or by compulsion of military authority. Haddix v. Wilson, 3 Bush, 523.

In the Kentucky, North Carolina, and Alabama cases the power of the legislature to enact such amnesty laws is assumed without question.

nesty before conviction. The court distinguishes | to guerrillas or other unlicensed trespassers and the cases of State v. Sloss, and State v. Fleming, supra, on the ground that they were decided under constitutions which did not limit the governor's power to pardon to cases after conviction, and says the language used therefore amounts to an absolute grant of all the pardoning power of the state to the executive, and therefore is an inhibition against the legislative branch interfering with it. It further distinguishes the case of State v. Fleming on the ground that Fleming was convicted before he knew of the legislative resolution prohibiting his punishment, and stood before the court in the light of one who had waived his pardon.

The Arkansas case of State v. Nichols, supra, was one of those which arose under statutes of various southern states granting amnesty and pardon for offenses committed during the time of the war. The Arkansas statute gave amnesty for all crimes except rape committed between May 6, 1861, and July 4, 1865, if convictions had not yet been had. A similar statute in North Carolina granted amnesty to all soldiers of the United States or of the confederate states or of the state for acts done in discharge of their duties or under orders as soldiers prior to January 1, 1866. State v. Blalock, Phill. L. 242.

This act is held applicable to homicide growing out of war matters. State v. Shelton, 65 N. C. 294. But it is held inapplicable to any crime that did not grow out of any war duties or war passions. State v. Cook, Phill. L. 535; State v. Haney, 67 N. C. 467.

These amnesty acts are held to be irrevocable and to give a vested right which cannot be taken away by a repeal. State v. Keith, 63 N. C. 140; State v. Nichols, 26 Ark. 74, 7 Am. Rep. 600.

But, to the contrary, it was held in Michael v. State, 40 Ala. 361, that a repeal of such a statute would preclude its operation as a defense in favor of one who had not previously accepted it.

The Kentucky amnesty act was held inapplicable

The power of Congress to grant amnesty has been the subject of much discussion and conflict of opinion. Congress has assumed the power in many instances by special acts to remove the disabilities of certain individuals for participation in rebellion. Some of these acts of Congress named a single individual, others named a great number of individuals. Section 13 of the confiscation act of July 17, 1862, purporting to confer upon the President power to grant pardon and amnesty in certain cases. But while President Lincoln made reference to this act of Congress, in his proclamation of December 8, 1863, proclaiming full pardon and restoration of all rights of property, except as to slaves, to persons in rebellion on condition of their taking and keeping an oath of loyalty, he began his proclamation by saying: "Whereas in and by the Constitution of the United States it is provided that the President shall have power to grant reprieves and pardons," and very plainly showed that he based his authority to grant the proclamation upon the provisions of the Constitution, and not upon the act of Congress. His reference to the act of Congress was: "Whereas the congressional declaration for a limited and conditional pardon accords with well-established judicial exposition of the pardoning power." It is also matter of history that the sweeping proclamation of amnesty issued by President Johnson was based entirely upon his constitutional right, and that the attempt of Congress to limit the effect of this amnesty and pardon was held by the Supreme Court of the United States to be ineffectual. United States v. Klein, 80 U. S. 13 Wall. 128, 20 L. ed. 519; Er parte Garland, 71 U. S. 4 Wall. 333, 18 L. ed. 366.

But the power of the legislative department to