Ex parte Smith

A decision of a Circuit Judge under a writ of habeas corpus discharging a prisoner from the custody of the Superintendent of the Penitentiary on the ground that he had been pardoned by the Governor is appealable to the Supreme Court. A Governor holds his office until his successor is chosen and qualified, unless ho has, by formal resignation or other act equivalent thereto, resigned or abandoned the office, or has, by his own conduct, estopped himself from holding over. A candidate for Governor who receives the highest number of votes, whose election has not been contested, and who qualifies in the presence of the House of Representatives and of such of the Senators as choose to attend, after notice to the Senate, is the duly elected and qualified Governor of the State and entitled to discharge the functions of the office. Under the Constitution and laws of this State, the title to an office held by election of the people depends upon the fact of the election, and not upon the acts or omissions of Boards of State Canvassers; and when such fact is shown by any competent authority and the election is not contested, the person who has received the highest number of votes is, under the Constitution, entitled to the office. The failure of the Secretary of State to deliver the returns of the Managers of Election for Governor to tho Speaker of.the House of Representatives, as he is required to do by Article III, Section 4, of the Constitution, cannot deprive the person who has received the highest number of votes of his right to the office. The fact that he did receive the highest number of votes may be ascertained in some other way, — as, for instance, from the returns of the Managers of the Election on file in the offices of the Clerks of the different Counties. Where an election for Governor is not contested, the prima facie result of tho election as shown by the returns of the Managers must be accepted as the true legal result and acted upon accordingly. Ho provision of the Constitution or Act of the General Assembly requires that a Governor elect shall be installed before entering upon the duties of his office. All that is required is that he shall be qualified by taking and subscribing the oath of office prescribed by the Constitution; and although it is eminently proper and suitable to the dignity of the occasion that all the usual ceremonies should be observed, such ceremonios are not essential to the legal validity of a qualification. One may abandon, renounce or resign an office by act as well as by word. Where, therefore, one has been elected Governor and holds the office for two years and untit his successor has been chosen and qualified, and, being a candidate for reelection, is defeated, but claims the office and qualifies as if he had been elected, such claim and qualification is a renunciation of his right to hold over; and if he cannot maintain his title to the office under the second election, he must be treated as if he had resigned it. Where one holding the office of Governor is a candidate for re-election, and, being defeated, goes through the form of inauguration as if he had been re-elected, he is estopped by such conduct from afterwards admitting his defeat and claiming the office under a provision of the Constitution giving him the right to hold over until his successor is qualified.

BefoRb CARPENTER, J., at Richland, 1876. This was a petition by Peter Smith for a writ of habeas corpus. The material facts were that in December, 1876, the petitioner was a prisoner in the custody of the Superintendent of the Penitentiary, under sentence of the Court of General Sessions for a criminal offense of which he had been convicted. On the 20th day of that month ho received from D. H. Chamberlain, claiming to be Governor of the State, a paper, under the great seal of the State, purporting to be a pardon. The Superintendent refused to recognize the paper as a valid pardon, and this was an application to the Court for a discharge of the prisoner. His Honor Judge Carpenter made an order for the discharge of the prisoner, and this was an appeal to the Supreme Court from that order. filed the following printed argument: It is submitted that, apart from the question as to whether Wade Hampton has been qualified as provided by law, he must, nevertheless, be regarded as de faeto Governor. 1. Having received the highest number of votes cast at the last general election, he has the de jure title, and is in the actual discharge of the functions of the office. 2. If Daniel H. Chamberlain, his competitor, did not receive the highest number of votes, his only color of title must be derived from his right to hold over by virtue of Section 2, Title III, of the Constitution. 3. Pie has surrendered such right. I propose in this argument to confine myself to the consideration of the third proposition. It is claimed that in the event of an adjudication by this Court that neither of the rival candidates for the office of Governor has been lawfully declared elected and duly inaugurated, nevertheless Chamberlain is entitled to the office in pursuance of Section 2, Article III, of the Constitution. This Section provides that the Governor shall hold over until his successor shall be chosen and qualified. The reverse of this proposition is true. It is submitted that by the record in this case it appears that on the 7th day of December, Chamberlain, claiming to have been elected at the last general election, and claiming to have been duly declared to have received the highest number of votes, thereupon, by a public and notorious act, assumed to take the oath of office as such Governor elect, and submitted himself to a ceremony which he publicly avowed was an inauguration or induction into the said office under the title thereto claimed to have been derived from such election and declaration. Subsequently thereto, in accordance with the custom in the case of a newly-inaugurated Governor, he wrote and published an address, which he represented to be his inaugural address, and which averred his assumption of the duties of said office by virtue of the title claimed to have been derived from said general election. What is the legal construction of these acts? It is respectfully submitted that Mr. Chamberlain, in assuming to clothe himself with the insignia of office as Governor by virtue of his claim to have received the highest number of votes at said election, in submitting himself to a ceremonial of inauguration, and in taking an oath of office as said pretended Governor elect, were equivalent to a surrender or resignation of all right and title to such office by virtue of his preceding term. A resignation is defined by Bou vier to be the act of an officer by which he declines his office and renounces his further right to use it. — Bouvier’s Law Dictionary. And such resignation need not' be by any particular form of words. — Dillon on Municipal Corporations, 200. It may be by parol. — 26 N. Y., 325. The act of resignation is an act of the will. It may be manifested in any way which precludes the idea of any other purpose. • It would be absurd to say that when Mr. Chamberlain assumed to enter upon the duties of the office in question under the new title he at the same time retained the idea or intention to continue to hold under the old. It was optional with him to choose between these two; nay, it was an absolute necessity that he should so choose, unless it can be said that there can be two good titles to the same office existing at the same time — an absurdity plain upon its face. If, then, Mr. Chamberlain knew when he assumed to take possession of his office under the new title that he could not in the same breath assert a claim to such office under any other title, we have at once two courses of action presented to him, involving the necessity of a choice. A question is presented, to decide which he must, from the very necessity of the case, exercise his volition. He does exercise it. He says, in so many words, “I1 prefer this title rather than the other.” He had the option of determining which one of two titles he would accept, and he chose the one which he thought gave him the longer lease of power. By this very act, therefore, he manifests an intention upon his part to relinquish the former title. It could not be otherwise, unless one can be said to select one of two things or one of two courses of action and at the same time retain that which has not been selected, which would involve a reduetio ad absurdam. Before he can assume to act under the latter title he must abandon all claim to the other. Mr. Chamberlain, in assuming to submit to the ceremony of inauguration, and in entering upon the duties of the office by virtue of that ceremony, in so many words said to the people of this State that he had abandoned all right which he had to the office by virtue of that clause in the Constitution. He was at liberty to claim by ODe title or the other; that he has taken the one course is sufficient proof that he has given up the other. What is this but a resignation — a laying down of the title under the old term, which cannot be held conjointly and simultaneously with the new, since, as we have shown, a resignation is not any form of words, written or spoken, but such acts as evidence an intention to relinquish or abjure the office in question ? In the case of The People against Metropolitan Police, (26 N. Y., 325,) it was said that “ affirmative acts on his part are quite as effective as affirmative words, either written or spoken.” In the same case it is held that a refusal to hold an office under a particular Act and to do what that Act requires amounts to a resignation, even when the duties were the same. — Ibid, 327'; Dillon on Corporations, 200. In the absence of any prescribed forms or acts, any facts which at common law would constitute an executed agreement would be sufficient; and the acts and declarations of the party may be received as evidence of the agreement. — People vs. Metropolitan Police, supra, 329. “No case occurs to me,” says the Court in the same case, “in which any office in the civil department of the government may not be vacated by the act of the incumbent alone.” — Ibid, 330. At page 332 of the same case the Court continues: “The relator refused to hold the office under this Act. What could he have done more effectually to divest himself of the office? * * * * He had a right to disclaim all title to the office; and if, in fact, he had title, such disclaimer would be a resignation.” — 3 Hill, 248. In these cases it will be seen the legal conclusion of a resignation is based upon the intention of the party, evidenced by acts which would be inconsistent with the fact of continuing to hold the office. The important factor in the case is the disposition or intention, which is a question of fact. The incumbent in that case, as in this, did certain things of his own volition, from which a conclusion is drawn, — which is the only reasonable conclusion, — namely, that he must have contemplated a laying down or resignation of the title, which could not, from its very nature, have subsisted simultaneously with the one assumed. If this reasoning be correct, it requires no extended argument to make it apparent that it could make no kind of difference whether the subsequent title was or was not what was anticipated, since the intention to forsake the former title and the exercise of the will in making a selection between that and the subsequent one must, necessarily, have preceded the actual assumption of the latter. And the intention having been expressed and the will set in operation in making the selection, the resignation was instantly complete, irrespective of the validity or invalidity of the new acquisition. When was this intention manifested? Certainly when the selection was made. It was then transformed into an act. Before the intention is thus declared it may be withdrawn or changed; but once expressed, it would be idle to say that it could still continue inchoate and inoperative until it was ascertained that the election had been unwise or that the choice had not resulted as expected. Millwood vs. Thatcher, 2 T. R., 88: The question arose as to whether the acts of plaintiff, who, while holding the office of juror, had been elected Town Clerk, constituted a resignation. The Court (Buller, J.,) said: “Then as to any option which the party may be said to have had, there cannot . be a stronger instance of having made an option than the plaintiff accepting the office of Town Clerk'and acting under it. I have no doubt his intention was to keep both offices; but if he be mistaken and choose to accept the last office, he must abide by the consequences, for it is his own act.” Grose, J.; same case: “ I think the fact of his accepting the latter office will probably be considered as a resignation of the former.” But, again, in addition to the argument tending to establish a resignation of the former title to this office, drawn from the acts of Mr. Chamberlain, as evidencing his intention to yield up the claim based thereupon, it is submitted that, irrespective of this intention, the said acts operate in law as a resignation. This proposition is based upon the rule of law that the act of accepting an office which is incompatible with the one then held by the incumbent works a resignation or surrender of the latter. In the case of The People vs. Garrique, (2 Hill’s N. Y., 98,) in which the defendant, who had been a -Justice of the Peace under a certain Act, had been elected to a similar office under a subsequent Act, and was sought to be prevented from acting under his first title, upon the ground that he had accepted office and been sworn in under the subsequent Act, the Court (Cowen, J.,) says : “It is therefore said by continuing to act in the Justice’s Court, this was rather an election to hold his first office, notwithstanding his accepting, taking the oath of office and entering on duties under the second. The contrary is entirely settled — that a resignation by implication may take place by being appointed to and accepting a new office incompatible with the former. This is an absolute'determination of the former office and leaves not a shadow of title to the possessor.” — Angelí & Ames on Corporations. “An office may be impliedly resigned or vacated by the incumbent accepting an incompatible office.” — Dillon on Corporations, 200; Burnett vs. Scribner, 16 Bart., 621. It is submitted that the offices which Mr. Chamberlain has attempted to exchange are, in their nature, incompatible and inconsistent. It will not do to say that the duties of each are identical. They are held by different titles. The authority by •which the incumbent of each is enabled to discharge his functions are totally different in the two cases. The office which was abandoned was filled by a general election which took place in 1874. At the entrance of his career upon that office, Mr. Chamberlain took an oath of office covering that term. That office was terminable on the qualification of his successor, or sooner, at his pleasure. It could not afterwards exist. It was a grant of power which terminated necessarily when either of those events took place. The office upon which he assumed to enter on the day of November last was, although the same in title, in all other respects a different office. He took upon himself new relations; he took a new oath of office; he went through the ceremony of a new inaugural. The theory upon which the case in 2 Hill turns is, evidently, that the resignation was established not by any particular act of the incumbent, for none was shown except by entering upon another office, but by the fact that the two offices were incompatible. The title and duties of the two offices in that ease were identical, as in this, but they were essentially incompatible in the sense that they were held by different and distinct titles. The term “incompatible” does not relate alone to the duties of the office, but to the term or title of the office. — -6 Wend., 579. In People vs. Metropolitan Police, (supra, 325,) it is said that “ the duties of an office are things different and distinct from the office itself.” Therefore, while the duties of an office may be perfectly compatible with each other, as in the case at bar, and as in the case in 2 Hill, supra, it does not follow that the offices are so. Mr. Chamberlain cannot claim to be acting under two titles to his office. He cannot claim, in the same breath, to be the Governor elect and the Governor holding over. The duties of the office may not be incompatible, but their term and title are. That this reasoning is correct, and that the dictum laid down above that acceptance of incompatible office works resignation of former office, comprehends cases where the titles to the office are incompatible. See also Ex Parte Gray, Bail. Eq. Rep., (S. C.,) 87. In Lawrence against Brown, (5 N. Y., 404,) it is said: “A surrender is worked when an estate incompatible with the one held is accepted by lessee, as when lessee takes a new lease of same lands.” This case is cited, not upon the particular question of surrender, (which will be discussed hereafter,) but to show that the “incompatibility” spoken of had no reference “to the duties or powers granted,” but to the title by which the grant is derived. There is no objection to an officer holding two or more offices at the same time when they can be' discharged without interfering with each other; but how can it be pretended that a person may claim the right to hold the same office under two titles at the same time which are, from their nature, inconsistent ? Either the one or the other must be invalid. There cannot be two perfect titles to the same office, any more than there can be two or more perfect titles to the same property. The grantee or lessee must derive his claim from the one or the other, and one or the other must fall to the ground. They are inconsistent'with each other, and so “incompatible” from their very nature. Either Mr. Chamberlain must hold his office under or by virtue of his prior term, or else, separately and distinctly from that, by virtue of his re-election. It is absurd to say that he can hold under both at the same time. If this be true, it certainly can need no further argument to show that the two offices are separate and distinct. It follows, as a logical conclusion, that before he can assume to act under the one he must abandon all claim to the other. What is this but a resignation — a giving up of the rejected office — without reference to his wish or intention? Suppose that the person who went through this ceremonial of inauguration, instead of being the actual preceding incumbent, had been a different individual. We will suppose Mr. Chamberlain, however, present and assenting thereto, — taking part in the ceremony, — investing his successor with all the paraphernalia of the office, and proceeding to turn over to him the records and property in his custody as Governor. Mr. Chamberlain retires to private life, and the other proceeds to execute and discharge the duties of the office, (perhaps for months,) when it is ascertained that the newly-inaugurated gentleman was not elected and not entitled to hold the office. Will it.be pretended that Mr. Chamberlain had not completely divested himself of all right and title to the office? Could he return to the executive office and begin again where he left off? Would there be any question in that case that he had surrendered his office? Upon no other theory could such an pretended ceremony take place. How, then, can the effect of it be changed merely because it happened to be himself to whom he resigned and transferred the office? The theory is the same. The process is identical. There must have necessarily been a surrender and giving up of the old title before'the new one could be assumed, unless the paradox, as we have stated it, that a man may hold au office by virtue of two titles at the same time can be maintained. Upon the question as to whether the acceptance of a subsequent office operates as a resignation of the former, it is believed that there has been no definite adjudication other than in the cases cited above. But there are a number of well-settled doctrines in cases which are clearly analogous and in which there can be no adverse argument derived from the idea of “incompatibility.” Among these may be classed a long line of cases involving the surrender of leases. A brief reference to the nature and source of grants of this character may avail to make clear the analogy between the principle involved in the surrender of a lease and that of a surrender of an office. Under the Roman law, the tenure by which lands, offices and franchises were held was identical. The land acquired by conquest was held by certain individuals, who had their villas or personal habitations and the land immediately attached thereto and cultivated by them. The balance was leased to the freemen, who came to be termed farmers, — villeins,—and from amoDg these the proprietor or lord of the soil appointed bailiffs and stewards, even in large cities. All the offices were derived from the proprietors of the land. — Introduction to Reeves’s History of English Law, 11, Note 2. “As the conquest progressed, the lands conquered were allotted to the Romans or lords of the soil, and they had the appointment to offices within their domain and the leasing of lands.” — Ibid, 15, Note 3. Even judicial offices were granted by the proprietors of the soil. “The lords exercised judicial functions. They had their Courts of law, presided over by their appointees.” — Introduction to Reeves’s History, (supra,) 97, and Note 3. “And the Saxons adopted the Roman laws and customs.” — Ibid, 37. “The feudal system derived from the Romans involved the nature of territorial property — the union of sovereignty with property— (the lord having sovereign rights within his domain) and the present system of legislation, which united the possession of feuds.” — Guizot, Sect. Sur le Civ. en France, Section 2. Subsequently the ultimate sovereignty in lands and offices became vested in England — in the crown. The title in either case emanated from that source, and, in this country, so continued, with certain modifications, down to the revolution, which resulted in establishing a form of government in which the fundamental theory is that the people are the sovereign. It is easy to trace the intimate relationship, as regards their origin and nature, of the two classes of grants— leases and offices. Even now, when the fee simple in lands is held by individuals, and leases, therefore, proceed from the individual owners, leaving only leases of office inherent in the people at large, the term “lease” is applied to offices granted by them, and it is customary to speak of such grants as “leases of office,” thus, by the very use of the term, acknowledging its source and applicability to offices as well as lands. — Bailey’s Eq. Rep., (S. C.,) 87. Further to show the analogy, nay, the intimate relationship, between leases of office and leases of land, it is said of the former that they may be either for life, for years or at will. — 7 Bacon’s Abr., 307. In the fifth volume of Bacon’s Abridgment, offices and lands are spoken of indiscriminately under the head “of what alease may be made for years.” And no distinction is made as to the various rules applicable to leases in either case. — 5 Bacon’s Abr., 438, 439. In a word, the analogy is clear. The lord was in all things the sovereign ; now the people are the sovereign. Leases of lands and of offices were both derived from the lord. The origin of the title to lands and offices was, therefore, identical. As has been said, in our times, while the title to lands rests in individuals, the sovereignty being changed, leases of offices can come only from the people at large. They are identical in character and origin, albeit the source from which they emanate is no longer the same. “The principles of every part of our law are to be found in their simple original forms — in the more ancient forms and proceedings. Though the form has changed, the principle endures.” — Reeves, supra, 127. That the analogy sought to be maintained is reasonable and complete is conceded by the learned Judge who decided the case below. If it can be maintained, the question of surrender involved in this case can be illustrated by a number of well-settled cases. In Lyon vs. Reed, (13 M. & W., 285,) it is said that when a party takes a new lease for premises already held by him as tenant, the fact of his so doing is evidence that the new lease has been accepted by him, and such acceptance works a surrender in law. — 8 Jur., 762. “A surrender is said to be the yielding up of an estate for life or years to him who hath the immediate estate in reversion or remainder.” — 5 Bacon’s Abr., 657. But it is said that in order to have such an acceptance operate as a surrender, the subsequent lease must be valid. This proposition, which seems to derive some support from two or three eases, is based upon an entire misconception of the reason which lies at the basis of the rule. This is succinctly stated in Bacon’s Abridgment, vol. 5, page 661, thus: “Because the grantor, having already made a lease, cannot make another while this is in existence.” In other words, it is a condition precedent to even assuming to give a new lease that the former should be surrendered. They cannot subsist together, and, consequently, the surrender is the very first act on the part of the lessee, — performed before, and not after or even at the identical moment of, taking the new lease. If surrendered, therefore, before the acceptance of the new lease, of what consequence is it, so far as the surrender is concerned, whether the subsequent lease be good or bad ? And following this reasoning, the rule is laid down that “alessee for life or years who takes a new lease of the same premises surrenders the first, though the second be void.” — 5 Bacon’s Abridg., 663, and cases cited. In the case at bar, Mr. Chamberlain, by accepting the new title, or assuming to act under it, admitted the power of his lessor or grantor, which power it could not legally have without a surrender of the first title. — Fan Rensselaer vs. Penniman, 6 Wend., 579. “The reason why an acceptance of a second lease works a surrender of the first is, that without the first is dissolved the latter could not be granted.” — Livingston vs. Ten Broeclc, 16 Johns., 29. Suppose A makes a lease of land for ten years to B. At the expiration of one year B agrees to give' up this lease upon A’s executing to him a second lease for four years. The new lease is made out and the parties proceed to carry out their agreement. Is it not plain that before B can receive the second lease, good or bad, he must give up the first? Otherwise there would be two terms subsisting together. The learned Judge below intimated that there was no authority in this country sustaining the doctrine as above stated in 5 Bacon, 663. With all respect to him, he has overlooked a very strong authority directly in point, to which the attention of this Court is requested. In the case of Van Rensselaer against Penniman, (6 Wendell, 579,) already cited, the principle was established in the Court of Errors of New York, — a Court which, it is but faint praise to say, has never been excelled in this country, either for the legal acumen of the Judges who composed it and whose names are illustrious in the annals of jurisprudence, or the patient and painstaking industry which characterized their decisions. Composed of such men as Chief Justice Savage, Samuel Nelson, Ogden Edwards, Esek Cowen, Monell and Gardner, there can be no hesitation in yielding to their conclusions all the respect and obedience which is due to the most eminent legal authority. The learned Chief Justice, (Savage,) at the outset, states the first and principal question to be whether the acceptance of the second lease was a surrender of the first. He then proceeds to say: “It seems to be well settled that if a lessee accepts a new lease of the same premises during the term of the first lease, the first is deemed to be virtually surrendered.” “The reason is that the acceptance of the new lease admits the capacity of the lessor to make such new lease, which he could not have without a surrender of the first lease.” “The doctrine of presumption is founded on the well known disposition of a man to enjoy his own. No man would take from another a lease of that which was already his own.” Did Chamberlain know that this office was his by virtue of the old title? Then why did he assume to take the new? Can his conduct be reconciled with the doctrine above stated? The very fact of his assuming to take this new title involves his admission that he had given up all claim to the former, and this irrespective of the character of the new lease. “And this,” proceeds the case above cited, “is the consequence, although the second lease should he void.” “The 'cases seem to have settled the point that simply receiving a second lease raises the presumption,” — namely, of a surrender of the first. It is respectfully submitted, therefore, that the learned Judge who decided the case below was in error when he said that the doctrine (that such surrender was not good when the subsequent lease was void) “has been sustained by all the British Courts, and that the preponderance of authority in this country is largely adverse to the ruling said to haye been made in Mellows vs. May,” cited in 5 Bacon’s Abr., supra. Not a single American case was adduced in support of this proposition of the learned Judge, and but two English cases are referred to by him, which I propose briefly to examine. The first case cited by him is the case of Zouch vs. Parsons, 3 Burrows, 1807. “In this case an infant who was one of the heirs of a mortgagee of certain premises joined in a release of his interest on payment of the amount due, in order that the mortgagor might remortgage the premises to the grantors of the plaintiff. The infant’s representatives sought to avoid this release and to reinstate the mortgage which had been released. The question was whether, 1st. .The release was void; and, 2d. If, being void, there was any surrender of the rights under the mortgage. “The Court held that, the release being voidable only, the surrender of his interest under the mortgage was good.” Now, it will be seen at a glance that this case is not in point: 1. Because the question as to the effect of an acceptance of a void lease was not involved in the case. 2. Because it was not the case of a lease at all, but was simply a question as to whether the maker of a release had himself surrendered the thing he released, when such release was voidable. It was as if an infant had bargained away certain rights, and the question was whether such ‘rights were bargained away — the act of bargaining being voidable. Is there anything in common between such a ease and the case at bar ? The other case (4 Burrows, 1980,) is equally inapplicable as an authority. The question did not arise at all; but the reporter says: “The Court held the second lease good; but they seemed.to agree that the first would not have been surrendered if the second had been void.” These are the only cases cited by the Court below. But suppose they were adopted as authority: What do they mean ? It will be noticed that in the language used in both cases the theory was that the first lease was surrendered “ in order to” or “ in consideration of” the new lease; that the acceptance of the new lease was on condition that it should be good. Will it be pretended that Mr. Chamberlain had any such condition in his mind when he publicly declared that he had been elected and went through the ceremony of inauguration? Did he not know all the qualities of this second lease before he took it? Was he not fully aware of all the questions involved which would make it either good or bad? Had he not been aware of all the processes by which this second lease was created, and was there, or could there have been, any question in his mind as to the legal effect of that lease? How, then, can it be said that he had in contemplation any condition ¶ A condition can only be inferred where the party has not the absolute means of knowing whether what he assumes to take upon the condition is what he expected. I repeat, therefore, that the effect of the acceptance of this office under the new title in Mr. Chamberlain’s case, whether the new title prove to be good or bad, not only upon principle and sound reason, but upon authority, operated as a surrender of the old title. But, again, when Mr. Chamberlain publicly had himself proclaimed, by virtue of a pretended election as Governor, he, in effect, said to every officer in the State acting under his instructions: “ I this day renounce all title to this office by virtue of the provision permitting me to hold over until the qualification of my successor, and I now announce that what I do hereafter I do by virtue of my election as Governor for the succeeding two years.” Such being the case he cannot now be heard to say that this pardon, which he thus impliedly assumed to grant by virtue of his being the re-elected Governor, was granted by him in virtue of his old title. Suppose he had said personally to Colonel Parmele: “ Sir, I grant this pardon as Governor, claiming to be such by virtue of the recent election.” And suppose it is ascertained by Colonel Parmele that he was not elected, and consequently holding no title by virtue of such election, and he thereupon refuses, as he properly should, taking the same ground as that occupied by the pretended Governor, and knowing any pretense founded on such assumption to be false, and replies: “ It would be unlawful for me to' recognize this pardon since the title under which you claim is invalid. I have your own words that you claim under no other.” Suppose an action of false imprisonment to be begun by the prisoner, and then Mr. Chamberlain comes into Court, or his grantee, who is privy with him, and asserts that this pardon was granted, not by virtue of his pretended title, nor upon the ground stated by him, but by virtue of another title. Would such a plea avail him in any Court of justice? Would he not, upon every principle of estoppel, be prevented from setting up such a claim? In Bigelow on Estoppel, it is stated that “estoppel in pais is an indisputable admission arising from the circumstance that the party claiming the benefit of the principle has in good faith been induced by the voluntary action of the other against whom it is ¿alleged to change his position.” — Bigelow, 369, 475. Non constat but that Colonel Parmele would have recognized and yielded obedience to the pardon but for the position taken by Mr. Chamberlain that he acted not under the old but under the new title. By publicly announcing his choice of this last title, he has obliged Colonel Parmele, knowing this announcement to be without authority, to change his position. He has so spoken as to cause Colonel Parmele to take a stand which may result in an action against him by this convict for false imprisonment. “Estoppel in pais arises: 1st. By an admission inconsistent with the evidence proposed to be given or title proposed to be set up. 2d. An action by the other party on such admission. 3d. An injury to him by allowing the admission to be disproved.” — 2 Smith’s Leading Cases, 643. In this case: 1st. Mr. Chamberlain made a public admission or avowal to all who were subject to his orders that he claimed to be Governor by virtue of this election. -2d. Colonel Parmele acted upon this admission ; for if Chamberlain had constantly after the election claimed to be holding over under the old title, his pardon might have been recognized. 3d. He has subjected himself to an action for false imprisonment, should Chamberlain or his grantees be permitted to disprove the admission. But, again, Mr. Chamberlain is estopped upon another theory of the doctrine of estoppel, — namely, by his recitals. “A party is estopped by his recital from showing that his title was derived in a different way.” — Bigelow, 298. “A widow by executing a release by which she styles herself ‘widow and sole devisee’ cannot deny that she took under her husband’s will.” — Dundas vs. Hitchcock, 12 How., 256; Bigelow, 297. “ When a man has entered into a solemn engagement, by deed or otherwise, as to certain facts, he shall not be permitted to deny any matter which he has asserted.” — Ibid, 297. In the case of People vs. Metropolitan Police, supra, it is said of the incumbent of the office in question: “He had a right to disclaim all title to the office; and if, in fact, he had title, such disclaimer would estop him from denying that he had resigned.” — Page 333. When Mr. Chamberlain said that he accepted this office under the new title, he estopped himself from setting up a different title. “A tenant is estopped from setting up a paramount title, either in himself or another, after he has accepted under a lease.” — 2 Smith’s Leading Cases, 657. Again, in treating of surrender by operation of law, it is said, in Lyon vs. Reed, (13 M. & W., 285,) that it occurs “when an act is done by the owner of a particular estate, the validity of which he would be estopped from disputing, and which could not have been done had the particular estate continued to exist.” In the present case the act done was inauguration, taking an oath of office, &c., which certainly could not have been done had not Chamberlain abandoned his former title. And another case strong in point is reported in 6 M. & G., 673, cited in Bacon’s Abridgment: “When a lessee for years accepts a new lease from his lessor, he is estopped from saying that his lessor had not the power to make a new lease; and as the lessor could not grant the new lease until the prior one had been surrendered, the acceptance of such new lease operates as a surrender of the former one.” Lyon vs. Reed, 13 M. & W., 285, &c. But, again, it is said in the recognized treatise on estoppel which has been referred to: “That when a party has two inconsistent courses before him, he must elect between the two.” “He cannot occupy inconsistent positions.” — Bigelow, 578, 579. “And having chosen, he must abide by it.” — Ibid, 536, 537, 544. In the case of Smith vs. Smith, (14 Gray, 532,) defendant claimed title under a deed from the father of the parties, who, by his will, had devised the locus to the plaintiff and other property to defendant. Defendant had accepted the property under the will, but said he had intended to hold under the deed also, if the law would not let him have both. The Court held that by accepting under the will he elected to hold under that title and could not go back and claim under the deed. “If the exercise of an office can be attributed to two titles, one good and the other bad, it will be attributed to the good title, unless the party exercising the office has disclaimed the good title.” — Reg. vs. Thomas, 3'Nev. & P., 288; 2 Jur., 347; 7 Sergeant & Rawle, 372. And to conclude: “Any decisive act of the party, done with a knowledge of his rights and of the facts, determines his election and works an estoppel.” — Bigelow, 578. Mr. Chamberlain did a “decisive act” when he took the oath of office and submitted to an inaugural ceremony. He had “knowledge of all the facts” and of his rights. None knew them better than he. His conduct, therefore, determined his election, and he is estopped from ever claiming under the other title.