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not made at the appointed time and place. | Ex'r v. Hall, 37 Ala. 702, 704; Arnold v. In this view of the contract, the rate of Potter, 22 Iowa, 194, 198. interest, after the maturity of the obliga The cases of Tilden v. Blair, 21 Wall. 241, tions, was not determinable by the law of 247, and Trust Co. v. Fowler, 141 U. S. 384, South Carolina. This is abundantly es 12 Sup. Ct. Rep. 1, are in entire harmony tablished by the authorities.

with these principles. Tilden v. Blair was In De Wolf y. Johnson, 10 Wheat. 367, an action by the holder of a bill drawn at 383, the court said: “The legal fulbllment Chicago, Ill., upon parties in New York, of a contract of loan on the part of the and accepted payable at a bank in New borrower is repayment of the money, and York. The defense was usury, and the the security given is but the means of se question was presented as to whether the curing wbat he has contracted for, which, contract was a New York or an Illinois in the eye of the law, is to pay where he contract. If a New York contract, there borrows, uplese another place of paynient could have been no recovery; for, by the be expressly designated by the contract.' law of that state, if a contract was usuIn Andrews v. Pond, 13 Pet. 65, 77, Chief rious, it was void, and no recovery could Justice TANEY, speaking for the court, have been had of principal or interest. Raid: “The general principle in relation to The court held it to be an Illinois contract, contracts made in one place to be executed and its validity determinable by the laws in another is well settled. They are to be of that state, for the reason that before governed by the law of the place of per the acceptance had any operation, before formance; and if the interest allowed by the it became a bill, the acceptors, for whose laws of the place of performance is higher accommodation the bill was drawn, sent than that perinitted at the place of the it to Illinois to be there negotiated, and contract, the parties may stipulate for the by that act indicated a purpose to create higher interest without incurring the pen. an Illinois bill. The court also based its alties of usury: So, in Carnegie v. Morri- judgment in part upon an Illinois statute son, 2 Metc. (Mass.) 381, 397, Chief Justice providing that when any contract or luan Shaw, after stating the general rule to be is made in that state, or between its citi. that the lex loci contractus determines the zens and the citizens of any other state or nature and legal quality of the act done, country, bearing interest at a rate that whether it constitutes a contract, etc., was legal in Illinois, it should be lawful to said: “But a contract madein one country make the principal and interest payable may contemplate the execution of deeds in any other state or territory, or in Lon. or other contracts, making payments, or don, in which case the contract or loan doing other legal acts, in another, in re sbould be deemed and considered as govgard to which, the law of the foreign erned by the laws of Illinois, and not be country, where the act is to be done, will affected by the laws of the place where it govern the contract. In Cooper v. Earl was to be performed. Rev. St. Ill. 1874, p. of Waldegrare, 2 Beav. 282, 284,- which 615, c. 74. was an action against the acceptor of bills It was because of that statute that a of exchange, drawn in Paris, where the nute given in Illinois by a citizen of that drawer and acceptor were at the time resi. state to a Connecticut corporation, payadent, and inade payable in London,-the ble in New York, for money loaned by the bills, on their face, did not state any par latter to the former, and secured by mort. ticular rate of interest. Lord LANGDALE, gage upon real estate in Illinois, was held, M. R., after observing that the law of the in Trust Co. v. Fowler, not to be a New country where a contract, merely per York contract in respect to the interest sonal, is made, determines its validity and that might be taken, but to be, in that interpretation, while the law of the forum regard, governed by the laws of Illinois. regulates the mode of suing, and the time * The presumption arising from the face within which suit must be brought for of the bonds, that the legal consequences non-performance, said: “The contract of of a failure to pay them according to their the acceptor, which alone is now to be con terms were to be determined by the law sidered, is to pay in England. The non of the place of performance, is strengthpayment of the inoney when the bill be ened by the practical construction the comes due is a breach in England of the parties put upon the contract after the contract which was to be performed in bonds matured. Seven coupons, with the England. Upon the breach, the right to installment of interest for July 1, 1866, all damages or interest immediately accrues; held by appellant, were “capitalized ” upon interest is giren as compensation for the the basis of treating the £500 bonds as non-payment in England and for the delay bonds for £600, and the £250 bonds as of payment suffered in England; and I honds for £300. The appellant refused to think that the law of England-that is, the surrender his bonds, for fear that by so law of the place where the default has doing he would lose the benefit of the happened-must govern the allowance of state's guaranty of them, yet he received interest which arises out of that default." interest from time to time as if they had See, also, Boyce v. Edwards, 4 Pet. 111, been exchanged. On the 13th of April, 1869, 123; Miller v. Tiffany, 1 Wall. 298, ::10; a payinent was made to him of interest

Scudder v. Bank, 91 U. S. 406, 412; Scot. due July 1, 1868, which was indorsed on his #land ('0. 1. Hill, 132 U. S. 107, 116, 10 Sup. bonds in this form : “Paid on this bond

Ct. Rep. 26; Story, Conf. Law, § 291; 2 £15, half-yearly dividend due 1st July, 1868, Kent, Comm. 459, 460, 461; Scofield-v. Day, as if it had been exchanged for a new 20 Johos. 101; Dickinson v. Edwards, 77 bond.” A similar indorsement was made N. Y.573; Freese v. Browuell, 35 N. J. Law, on his bonds for each half-year's dividend 285, 287; Peck v. Maso, 14 V't. 33, 38; Ex or interest up to July 1, 1880. When tha parte Heidelback, 2 Low. 526, 530; Hunt's receiver in Claflin v. Railroad Co., 4 Hughes,

(U. S.) 12, made payments of interest, such , 1867, and January, 1868, although the evlpayments were stamped upon the bonds dence shows payment of the interest due in this form: “Paid £30 sterling, interest July 1, 1866, and the interest accruing on due July 1st, 1878, and January 1st, 1879." and after July 1, 1868, up to July 1, 1880. For the interest paid to him for July 1, A reversal is asked upon the ground, 19 1879, appellant executed a receipt, in this ainong the others already examined, that form: “Received of Baring Brothers & Co., the court erred in'not requiring the interas agents of John H. Fisher, receiver of the est due on the above dates, respectively, South Carolina Railroad Company, ninety to be paid with interest after maturity to pounds sterling, being interest due July the date of the final decree. No mention ist, 1879, on bonds of the Louisville, Cin is made in the special master's report of cinnati and Charleston Railroad Coinpa- May 5, 1882, or in the interlocutory decree py, of £500 each, with eight coupons at of 1883, or in the master's report of 1887, tached, representing 600 pounds sterling, or in the final decree of 1857, of the interest and numbered, respectively, as follows: due January and July, 1867, and January, 18, 19, 20, 22, 23.” Receipts of the same 1868. There was no exception to the re: kind were given for him, by his London ports of 1882 and 1887 upon the ground bankers, for the interest due January 1, that they did not include interest for those 1880. Similar payments of interest were three periods of six months. The reasonmade and indorsed throughout the whole able inference is that the appellapt did period from July 1, 1868, to July 1, 1880, on not produce before the master and prove the 12 original £250 bonds, differing from the interest coupons for those periods, or the others only in showing that the half did not ask that they be included in the yearly interest paid on those bonds was report as to the amount due upon the £7. 10s. The receipts or indorsements on basis fixed in the interlocutory decree of both series of bonds show that, commenc 1883. Having failed to except to the reing regularly with the interest due July 1, | port upon the ground that it did not in1868, but including the installment due clude them, we do not think that the apJuly 1, 1866, Coghlan received interest, at pellant should be now heard tu urge this the rate of 5 per cent. per annum, upon as an objection to the final decree. Be. the £500 and £250 bonds, respectively, as if sides, as by the evidence the interest due exchanged for £600 and £300 bonds. He July 1, 1866, was included with the inter. admits in his deposition that the only de est due July 1, 1868, in the capitalization, mand ever made by or on his behalf of in whereby the £500 and £250 bonds were terest at the rate of 7 percent, on the bonds treated as if exchanged for £600 and £300 was by his original complaint in this suit, bonds, it would be strange if the installfiled August 28, 1880. These facts make it ment of interest que for the intermediate clear that the claim of interest, after the periods of January and July, 1867, and maturity of the bonds, at the rate of 7 per January, 1868, were not embraced by that cent. instead of the rate of 5 per cent., was arrangement. There is no explanation of an after-thought upon his part.

this in the record. It is not an unreasonIn what has been said, we have assumed able presumption, in view of all the cirthat the allowance of interest at the rate cumstances, that in some way, not dis. of 5 per cent. per annum was in conformi. closed by the evidence, those coupons ty with the law of the place of payment. were settled, or treated as settled, when The court was not informed by the plead. the railroad company commenced, in 1869, ings or proof as to what that law was, and to pay, and the appellant received, interjudicial notice could not, therefore, be taken est on the bonds as if exchanged for new of it. Liverpool & G. W. Steam Co. v. bonds of £600 and £300. Be this as it may, Phenix Ins. Co., 129 U. S. 397, 445, 9 Sup. we are not inclined to disturb the decree Ct. Rep. 469, and authorities there cited. upon the ground that it does not nake The railroad company makes no

provision for the interest coupons due plaint of the allowance that was made of January and July, 1867, and January, 1868. interest, and the appellant does not claim Decree affirmed. that a larger allowance was required by the law of the place of performance. He Mr. Justice Gray did not hear the arguinsists only that he was entitled, of right, ment, and took no part in the decision of after the maturity of the bonds and the re this case. spective coupons, to interest at the rate,

(142 U. S. 116) 7 per cent., fixed by the laws of South Carolina; and this, notwithstanding the

HALL et al, v. CORDELL et al. guaranty by the state of the faithful per.

(December 7, 1891.) formance of the contract of loan was upon the condition that “the interest to be re

BILLS OF EXCHANGE PROMISE TO ACCEPT-CONceived thereby and made payable thereon

FLICT OF LAWS. should not exceed the rate of 5 per cent.

1. The payee of a bill of exchange, who disper annum. For the reasons already

counts the same, and pays out the proceeds to the

order of the drawer, and then forwards it to the stated, we are of opinion that the law of

drawees for payment, does not “negotiate" it, that state did not determine the rate of within the meaning of the law-merchant, and interest, and that this interpretation of therefore does not come within 1 Rev. St. Mo. the contract, if it were doubtful, is sus p. 84, § 533, providing that the preceding sec. tained by the practicalconstruction placed tions, which declare void all acceptances not upon it by the conduct of the parties.

made in writing, do not apply to “any person to One other question in the case requires made, and who, on the faith of such promise,

whom a promise to accept a bill may have been notice at vur hands. The railroad com

shall have drawn or uegotiated the bill." pany did not prove payment of the install.

2. An agreement made in Missouri by a resi. ments of interest due January and July, dent of Illinois to accept and pay drafts at his

com

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place of business in Illinois is governed by the Dupnica received from Hall Bros. & Co. law of tbe latter state, to the exclusion of the

only the sum of $5,936.55, the balance of Missouri statutes. Coghlan .V. Railroad Co., 12

the proceeds of the sale of the above catSup. Ct. Rep. 150, followed. 3. In Illinois a parol promise upon sufficient

tle and hogs, consigped to them as stat. consideration to accepta bill of exchange is bind

ed, after deducting the amounts retained ing upon the acceptor. Scudder v. Bank, 91 U. by the consignees out of such proceeds on S. 400, followed.

the several accounts above mentioned. 34 Fed. Rep. 866, armed.

There was evidence on behali of the de

fendants tending to show that no such In error to the circuit court of the Unit

agreement was made as that alleged. ed States for the northern district of Illi

But the issues of fact were fairly submitnois. Affirmed.

ted to the jury, and we must assume, on The facts fully appear in the following this writ of error, that the jury found statement by Mr. Justice HARLAN:

from the evidence that the alleged agreeThis is an action of assumpsit. It is ment was made between the parties. based upon an alleged verbal agreement J. A. Sleeper, for plaintiff in error. Ashmade on or about April 1, 1886, at Mar- | ley M. Gouid, for defendant in error. shall, Mo., between the defendants in error, plaintiffs below, doing business at

* Mr. Justice HARLAN, after stating the that place as bankers, under the name of facts in the foregoing language, delivered Cordell & Dunnica, and the plaintiffs in er the opinion of the court. ror, doing business at the Union Stock Our examination must be restricted to Yards, Chicago, Ill., under the name of

the questions of law involved in the rulHall Bros. & Co. There was a verdict and ings of the court below. And the only judgment in favor of the plaintiffs for one which, in our judgment, it is necessa. $5,785.79.

ry to notice, is that arising upon the inThe alleged agreement was, in sub-structions asked by the defendant, and stance, that Hall Bros, & Co. would ac which the court refused to give, to the cept and pay, or pay on presentation, all effect that the agreement in question, havdrafts made upon them by one George ing been made in Missouri, and not hav. Farlow, in favor of Cordell & Dunnica, for ing been reduced to writing, was invalid the cost of any live-stock bought by Far- under the statutes of that state, and could low and shipped by him from Missouri to not be recognized in Illinois as the basis Hall Bros. & Co. at the Union Stock of an action there against the defendants. Yards at Chicago.

The statute of Missouri referred to is as There was proof before the jury tending follows: "Sec. 533. No person within this to show that, on or about July 13, 1886, state shall be charged as an acceptor of Farlow shipped from Missouri 9 car-loads a bill of exchange, unless his acceptance of cattle and 1 car-load of hogs, con shall be in writing, signed by himself or

signed to Hall Bros. & Co. at the Union his lawful agent. Sec. 534. If such acStock-Yards, Chicago; that such cattle ceptance be written on a paper other than

and hogs were received by the consignees, the bill, it shall not bind the acceptor, exand by them were sold for account of Far- cept in favor of a person to whom such low; that, out of the proceeds, they re acceptance shall bave been shown, and tained the amount of the freight on the who, upon the faith thereof, shall have shipment, the expenses of feeding the stock received the bill for a valuable consideraon the way and at the stock-yards, the tion. Sec.535. An unconditional promise, in charges at the yards and of the persons writing, to accept a bill before it is drawn, who came to Chicago with the stock, the shall be deemed an actual acceptance in commissions of the consignees on the sale, favor of every person to whom such writ. the amount Farlow owed them for mon ten promise shall have been shown, and eys paid on other drafts over and above who upon the faith thereof shall have rethe pet proceeds of live-stock received and ceived the bill for a valuable considerasold for him on the market, and $2,000 due tion. Sec. 536. Every holder of a bill, prefrom Farlow to Hall Bros. & Co. on cer-senting the same for acceptance, may tain past-due promissory notes given for require that the acceptance be written on money loaned to him; that, at the time the bill; and a refusal to comply with of the above shipment, Farlow, at Mar such request shall be deemed a refusal to shall, Mo., the place of agreement, made accept, and the bill may be protested for his draft, of date July 13, 1886, upon Hall non-acceptance. Sec. 537. The preceding Bros. & Co., at the Union Stock-Yards, sections shall not be construed to impair Chicago, in favor of Cordell & Dunnica, the right of any person to whom a promfor $11,274, the draft statiog that it was ise to accept a bill may have been made, for the 9 car-loads of cattle and I car-load and who on the faith of such promise shall of bogs; that this draft was discounted have drawn or negotiated the bill, to reby Cordell & Dunnica, and the proceeds cover damages of the party making such placed to Farlow's credit on their books; promise, on his refusal to accept such that the proceeds were paid out by the bill. 1 Wag. St. 1872, p. 214; 1 Rev. St. plaintiffs on his checks in favor of the Mo. 1879, p. 81; 1 Rev. St. Mo. 1889, p. 253. parties from whom he purchased the stock The contention of the plaintiffs in error mentioned in the draft, and for the ex is that the rights of the parties are to be penses incurred in the shipment; that the determined by the law of the place where draft covered only the cost of the stock to the alleged agreement was made. If this Farlow; that, upon its presentation to be so, it may be that the judgment could Hall Bros. & Co., they refused to pay it, not be sustained; for the statule of Misand the same was protested for pon-pay souri expressly declares that no person ment; and that subsequently Cordell & within that state shall be charged as an

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acceptor of a bill of exchange unless his a bill of exchange depends upon the law acceptance be in writing. And the stat- of the place where the bill is to be acute, as construed by the highest court of cepted and paid.” Citing Boyce v. Ed. Missouri, equally embraces within its in- wards, 4 Pet. 111. hibitions an action upon a parol promise Looking, then, at the law of Illinois, to accept a bill, except as provided in sec- there is no difficulty in holding that the tion 537. Flato v. Mulhall, 72 Mo.522,526 ; defendants were liable for a breach of their Rouscb v. Duif, 35 Mo. 312, 314. But, if the parol agreement, niade in Missouri, to acaw of Missouri governs, this action could | cept and pay, or to pay upon presentanot be maintained under that section, be- tion, in Illinois, the bills drawn by Farcause, as held in Flato v. Mulball, above low, pursuant to that agreement, in facited, the plaintiffs, being the payees in vor of the plaintiffs. It was held in Scud. the bill'drawn by Farlow upon Hall Bros. der v Bank, 91 U. S., 406, 413, that in Ii. & Co., could not, within the meaning of nois a parol acceptance of, or a parol the statute, he said to have “negotiated" promise to accept, upon a sufficient conit. The Missouri statute is a copy of a sideration, a bill of exchange, was bindNew York statute, in respect to which ing on the acceptor. Mason v. Dousay, 35 Judge DUER, !n Blakiston v. Dudley, 5 III. 424, 433; Nelson v. Bank, 48 Ill. 36, 40; Duer, 373, 377, said: “We think that to Sturges v. Bank, 75 III. 595; Stock-Yards negotiate a bill can only mean to trans- v. O'Reilly, 85 III. 546, 551. fer it for value, and that it is a solecism to The views we have expressed were subsay that a bill has been negotiated by a stantially those upon which tho court bepayee who has never parted with its low proceeded in its refusal of the defendownership or possession. The fact that ants' requests for instructions, as well as the plaintiffs had given value for the bill in its charge to the jury. The suggestion when they received it only proves its ne- that there was a material variance begotiation by the drawer,-its negotiation tween the averinents of the original and to, and not by, them.

Their put- amended declaration, and the proof ad. ting their names upon the back of the bill duced by the plaintiffs, is without foundawas not an indorsement, but a mere au- tion. The real issue was fairly submitted thority to the agent whom they employed to the jury, and their verdict must stand. to demand its acceptance and payment. Judgment affirmed. The manifest intention of the legislature in section 10 (similar to section 537 of the

Mr. Justice GRAY was not present at Missouri statutes] was to create an ex

the argument, and did not participate in ception in favor of those who, having

the decision. transferrell a bill for value, on the faith

(142 U. S. 155) of the promise of the drawee to accept it,

McELVAINE V. BRUBA. bave, in consequence of his refusal to accept, been rendered liable, and been

(December 21, 1891.) subjected to damages, as drawers or in- CoxSTITUTIONAL LAW-CRUEL PUNISHMENTS-DUB dorsers.” The plaintiffs in error, there

PROCESS OF LAW. fore,cannot rest their case upon section 537.

1. Code Crim. Proc. N. Y. S$ 491, 492, proWe are, however, of opinion that, upon

vide that a criminal under sentence of death principle and authority, the rights of the

shall be kept in solitary confinement in the peni

tentiary until executed, and that the court shall parties are not to be determined by the

designate a week during which the execution must law of Missouri. The statute of that state

take place, but that the warden shall fix the day can have no application to an action and hour, keeping the same secret from the pris. brought to charge a person in Illinois up. oner and the public. Held, that the determinaon a parul promise to accept and pay a tion of the legislature and courts of New York bill of exchange payable in Illinois. The

that such confinement is not cruel and unusual is agreement to accept and pay, or to pay

conclusive upon the federal courts, and they can

not review such determination on the theory that upon presentation, was to be entirely

it infringes on the immunities or privileges seperformed in Illinois, which was the state cured to citizens of the United States by the of the residence and place of business of fourteenth amendment to the constitution. the defendants. They were not bound to 2. A warrant from the court commanding the accept or pay elsew here than at the place warden to cause the judgment and sentence to to which, by the terms of the agreement,

be executed, and the condemned to be put to the stock was to be shipped. Nothing in

death, “in the mode, manuer, and way, and at the the case shows that the parties had in

place, by law prescribed and provided, " consti.

tutes sušicient authority both for the solitary conview, in respect to the execution of the

finement and for the execution in the manner precontract, any other law than the law of

scribed by law; and, to constitute due process of the place of performance. That law, con. law, it is not necessary that the inode of continesequently, must determine the rights of ment or of execution should be more particularly the parties. Coghlan v. Railroad Co., 12 described. Sup. Ct. Rep. 150, and the authorities 3. The court of appeals of New York having there cited.In this connection it is well

decided that an appeal from a conviction of mur. to state that in Bank v."Gibson. 5 Duer, execution only, and not of the solitary confine.

der in the first degree operates as a stay of the 583, a casa arising under the statute of ment, this is controlling upon the supreme cours New Y above referred to, the court of the United States; and hence a continuance of said: “Those provisions manifestly em- solitary confinement pending an appeal by the brare all bills, wherever drawn, that are prisoner is the result of his own act, and is not to be accepted and paid within this state;

in violation of any right secured by the constiand, were the terms of the statute less

tution of the United States. explicit than they are, the general rule of Appeal from the circuit court of the law would lead us to the same conclusion, United States for the southern district of -that the validity of a promise to accept New York. Affirmec

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Geo. M. Curtis, for appellant. Chas. F. the judge or judges holding the court at Tabor, Atty. Gen. of New York, for ap- which the conviction takes place, or a pellee.

majority of them, of whom the judge pre

siding must be one, must make out, sign, * Mr. Chief Justice FULLER delivered the and deliver to the sheriff of the county opinion of the court.

a warrant stating the conviction and sen. Charles McElvaine was convicted in the tence, and appointing the week within court of sessions, Kings county, in the which sentence must be executed. Said state of New York, on October 23, 1889, of warrant must be directed to the agent the crime of murder in the first degree, and warden of the state-prison of this committed August 22, 1889, and on Octo-state designated by law as the place of ber 23, 1889, was sentenced to death. confinement for convicts sentenced to imFrom the judgment of conviction an ap. prisonment in a state-prison in the judi. peal was duly taken by McElvaine to the cial district wherein such conviction has court of appeals of the state of New taken place, commanding such agent and York, where the judgment was reversed, warden to do execution of the sentence and a new trial granted. People v. Mc- upon some day within the week thus apElvaine, 121 N. Y. 250, 24 N. E. Rep. 465. A pointed. Within ten days after the issu- * new trial was had, and resulted on Sep- ing of such warrant the said sheriff must tember 29, 1890, in a conviction for the deliver the defendant,* together with the * aforesaid crime, and on October 1, 1890, warrant, to the agent and warden of the McElvaine was again sentenced to death. state-prison therein named. From the A second appeal was taken to the court time of said delivery to the said agent of appeals, and the judgment was affirmed and warden, until the infliction of the pun. February 24, 1891. People v. McElvaine, ishment of death upon him, unless he shall 125 N. Y. 596, 26 N. E. Rep. 929. The court be lawfully discharged from such impris. of appeals sept down its remittitur to onment, the defendant shall be kept in sol. the court of sessions to enforce the judg. itary confinement at said state-prison, and ment, as rendered against McElvaine, ac- no person shall be allowed access to him cording to law, and thereafter the judge without an order of the court, except the ment of the court of appeals was made officers of the prison, his counsel, his phythe judgment of the court of sessions. sician, a priest or minister of religion, if On March 6, 1891, it was ordered and ad- he shall desire one, and the members of judged that the judgment of conviction his family. Sec. 492. The weekso appoint. and sentence thereon of October 1, 1890, ed must begin not less than four weeks be enforced and executed in the manner and not more than eight weeks after the provided by law during the week begin- sentence. The time of the execution withning on Monday, the 20th of April, 1891; in said week shall be left to the discretion and the court issued its warrant under of the agent and warden to whom the the hands of the judges thereof (including warrant is directed; but no previous an. the presiding judge) to the agent and nouncement of the day or hour of the exwarden of Sing Sing prison, conimanding ecution shall be made, except to the perhim to execute said judgment and sen. sons who shall be invited or permitted to tence, by putting the condemned to death, be present at said execution, as hereinaft. “in the mode, manner, and way and at er provided." Code Crim. Proc. N. Y. the place by law prescribed and provided.” | 1891, pp. 197, 198. April 21, 1891, McElvaine, by his attorney, It is contended that the sulitary confinepresented to the judge of the circuit court ment thus provided for constitutes cruel of the United States for the southern dis. | and unusual punishment, and brings the trict of New York a petition praying that statute within the inhibition of the eighth a writ of babeas corpus issue to Augus- | amendment to the federal constitution. tus A. Brush, the then agent and warden | The first 10 articles of amendment were of Sing Sing prison, requiring him to pro- not intended to limit the powers of the duce the body of said McElvaine before states in respect of their own people, but said court at some time to be designated to operate on the federal government onin said writ; and afterwards such pro. ly; but the argument is that, so far as ceedings were bad that on snid 21st day of those amendments secure the fundamental April, 1891, an order was made denying rights of the individual, they make them the prayer of said petition, from which or. his privileges and immunities as a citizen der McElraine appealed to this court, of the United States, which cannot now, wbich appeal was allowed by the said under the fourteenth amendment, be judge; and the clerk of the court was di- abridged by a state; that the prohibitiou rected to transmit a transcript of the pe. of cruel and unusual punishmenta is one of tition, decision, and order thereon, and of these; and that that prohibition is also the appeal. This transcript was accord- included in that “due process of law” ingly transmitted, and, by stipulation, is without which no state can deprive any accompanied by a certified copy of the person of life, liberty, or property. We warrant for McElvaine's execution.

held in the Case of Kemmler, 136 U. S. 436, We bave examined and considered all the 10 Sup. Ct. Rep. 930, that this statute, in grounds alleged in the petition for the al- | providing for the punishment of death by lowance of the writ, but deem it unneces- electricity, was not repugnant to the consary to refer to any, save those presente stitution of the United States when aped in the brief and argument of petition. | plied to a convict who committed the er's counsel. Sections 491 and 492 of the crime for which he was convicted after the New York Code of Criminal Procedure are act took effect; that the enactment of the a as follows: “Sec. 491. When a defendant statute was in itself within the legitimate? is sentenced to the punishment of death, sphere of the legislative power of the *

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