The question for our examination is, therefore, narrowed down to this Can we direct a new trial, or must the prisoner be absolutely discharged? It is insisted by the counsel for the plaintiff in error, that it is authoritatively settled in this State, that where the writ of error brings up the record alone, without a bill of exceptions, and the judgment is reversed for error manifest in the record, this Court cannot order a new trial, but must discharge the prisoner absolutely. Before bills of exceptions were extended by statute to criminal cases, the Court had no power to grant new trials in cases of felony and treason, where the proceedings appeared by the record to have been regular. Neither the merits nor the proceedings in the progress of the trial were reviewable on writ of error: People vs. Comstock, 8 Wend. 549; 3 Bl. Com. 388; 13 East 416; Chit. Cr. Law 532. This rule of the common law has been followed since our statute, and it has been said that new trials can be granted now only where the judgment is reversed upon bill of exceptions: The People vs. Taylor, 3 Denio 91; O'Leary vs. The People, 4 Parker 193.

In The People vs. Taylor, the point was not at all involved, and the very eminent judge who pronounced the opinion was evidently only stating the common law rule, without respect to any statute. He neither referred to the statute nor in anywise considered its effect upon the former rule, and ought not to be regarded as holding in his merely incidental dictum, that the statute had not changed the common law. In O'Leary vs. The People, the Court, so far as the point was considered, followed The People vs. Taylor, without considering the question in the light of the statute. In the Hartung case the Court of Appeals (as the reporter informs us in his notes), on reversing the judgment ordered a new trial, "not being able judicially to see, that upon a new trial the prisoner might not be convicted of manslaughter in some inferior degree." A bill of exceptions was in that case annexed to the record, but no error was found in the bill, and the judgment was reversed solely because of the effect of the law of 1860 on the case. It would be impeaching the good sense of that Court to say that in a case

where no error appeared in the bill of exceptions, it held it to be proper to grant a new trial for error found only in the record, simply because a bill was attached to the record. It must have been considered that the statute had given the Court power to order a new trial "according to the circumstances of the case," and in that respect had changed the common law rule, or, which is possible, the order was entered without considering the point at all. In either view, the case is perhaps not to be considered as an authority on the question. The statute, in plain terms, embraces all criminal cases brought before the Court by writ of error, whether the alleged error is in the judgment record, or in a bill of exceptions annexed to it, and in my opinion the true test to determine what order shall be made on a reversal is, whether a new trial can be legally effective or not. It is sometimes apparent on the record, that no conviction can lawfully be obtained, as where the indictment is fatally defective, or where the circumstances are such that the prisoner cannot be re-tried, without a violation of his constitutional or legal rights; and in all such cases it is the duty of the Court to discharge the prisoner absolutely; but where the error, though apparent in the record only, is of a character that renders the trial and conviction illegal, so that the prisoner cannot legally be said to have been in jeopardy, the statute, in my judgment, authorizes this Court to order a new trial.

But, in the case at bar, the conclusion is forced upon my mind that there can be no new trial. The trial and conviction that have taken place were, in all respects, regular and legal.. When the verdict was rendered the prisoner stood lawfully convicted of murder: 4 Bl. Com. 362. The legislature (to that purpose omnipotent both in wisdom and folly) had repealed all statutes prescribing his sentence and punishment, under circumstances where the common law was not revived: Hartung vs. The People, 22 N. Y. 95. The sentence, attempted to be substituted, was unconstitutional; and we are compelled, by reverence for the Constitution as well as for the adjudication of the Court of Appeals, to reverse it. But the legal conviction, upon a regular trial, remains a fact, of which the prisoner is entitled to avail himself. His plea of autrefois convict would be a bar to a new trial, and

would, as it seems to me, be established by producing the record. now brought before us. "The plea of autrefois convict, or a former conviction for the same identical crime, though no judgment was ever given, or perhaps will be (being suspended by the benefit of clergy or other cause), is a good plea in bar to an indictment:" 4 Bl. Com. 336. In The State vs. Benham, 7 Conn. 414, it was held that the verdict itself constitutes the bar, and in The State vs. Morrell, 2 Yerg. 24, that this is so, even when the judgment is improperly arrested upon a good indictment: 2 Cow. and H. Notes 955.

The prisoner could not be deprived of the benefit of that plea by the answer that the judgment pronounced on the conviction was illegal. It was no fault of his that the legislature had deprived him of his well-earned deserts to be hanged; nor that the Court, obedient to the letter of the act, pronounced the sentence it prescribed. It is a familiar maxim of the common law, "Nemo debet bis vexari pro eadem causa." This maxim is embodied in the Constitution of this State, and of the United States. The former declares that "no person shall be subject twice to be put in jeopardy for the same offence:" Sec. 6, Art. 1, Const. of N. Y. The latter, "nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb:" Art. 5, Amend. Const. U. S.

It needs neither argument nor authority to show that these provisions are applicable to a case where, upon a regular trial, there has been a lawful conviction of a felony. They protect the prisoner from another trial, and the result under the statute is his absolute discharge.

To discharge the prisoner, so justly convicted of his appalling crime, is a most painful duty; but in our view the law leaves us no alternative. If the result in his case, and in the parallel one of Mrs. Hartung (in one of which a faithful wife, in the other a confiding husband were deliberately poisoned to death to give scope to the embraces of a paramour and prostitute), shall form beacons to warn against future imitation of the folly and stupidity of the act of 1860, they will not be wholly without benefit to the community.

Supreme Court of Pennsylvania, 1862.

ECKERT vs. CAMERON ET AL.

1. A letter written by the maker of a note to the holder, before the discount of it by him, is not admissible in an action by the latter against an indorser, to show that the indorsement was an accommodation one.

2. Where an indorsed note comes into the possession of the maker before it is due,. there is no presumption of payment or extinguishment; and, therefore, one who discounts the note under such circumstances for the maker is an innocent holder for value, and is entitled to recover from any of the parties to it.

Error to the Court of Common Pleas of Lebanon county.

The opinion of the Court was delivered by

STRONG, J.-It would be difficult to vindicate the admission of the contents of a letter to the plaintiffs below, written by Shaner in the absence of Eckert, and before the notes were made which the plaintiff discounted. It is not easy to see how one who has indorsed a promissory note, can be affected by the declarations of the maker, of which he had no knowledge, and which were made before the note had any existence. Shaner the maker, the letter or its contents (for its loss was sufficiently proved) would have been legitimate evidence to show that the indorsements were made for their accommodation, that is, were such proof necessary. But how could the . letter be evidence against Eckert? The Court received it not as proof of Shaner's declaration, but, to use the language of the Judge,

as evidence of the contract." What contract? If between Myers and Shaner, or Shaner and the plaintiffs, it was evident to the case, res inter alios partes. If between the plaintiffs and the defendant, how could the ex parte declarations of Shaner tend to prove it? In admitting this we think the Court inadvertently fell into an error, for which we should be constrained to direct a venire de novo were it not that the mistake could have done the defendant no harm, and a reversal of the judgment would not prove of ultimate service to him. There was, it is true, other evidence from which the jury might well have found that he had indorsed the note for the accommodation of Myers and Shaner. That other evidence

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is to be found in the recitals made in the assignments of the accounts and stock, and in the testimony of George Hoffman and Jacob Dehuff. Yet it would be impossible for us to know whether the jury did not rest their verdict in whole or in part upon Shaner's letter.

But, was it necessary for the plaintiffs to prove by affirmative evidence, that the defendant was an accommodation indorser? They had discounted the notes for the makers, on the day of their date, before their maturity, and with the defendant's indorsement upon them. Under such circumstances were the indorsements not binding, unless it was proved that the notes had never before been negotiated, but were indorsed for the convenience of the drawers? A bill or note which has been once in circulation, overdue, and coming from the hands of the acceptor or maker, is presumed to be extinguished: Byles on Bills 180; McGee vs. Prouty, 9 Metcalf 546. This is because it was the duty of the maker or acceptor to take it up when it fell due, and therefore it is fairly inferable from his possession of it, after that time, that it has fulfilled its office. But before it has fallen due, the maker of a promissory note is under no obligation to take it up, and the reason fails for presuming its extinguishment from his then having it in his possession. And with the failure of the reason, it is fair to conclude that the rule also ceases. When, as in this case, the maker offers to discount an indorsed note, on the day of its date, and before its maturity, the law does not infer from the indorsement and from the possession of the maker, that the note has been either paid or extinguished.

It may be doubted whether the condition of such a note proves that it has been in circulation; whether indeed it is not rather a just inference that the indorsement was made for the accommodation of the maker, and the whole left him to raise money upon it. In Burbridge vs. Manners, 3 Camp. 193, Lord ELLENBOROUGH said, "payment means payment in due course, and not by anticipation." "I agree," said he, "that a bill paid at maturity cannot be reissued, and that no action can afterwards be maintained upon it by a subsequent indorsee. A payment before it comes due, however, I think, does not extinguish it, any more than if it were