[419]

[420]

having printed at its head the words "THE excess of the power of the court, because
UNITED STATES" in large and conspicuous conviction and the sentence were for differ
capitals, followed on a lower line by the words offenses; the conviction being for having
SILVER MINING COMPANY OF DENVER CITY, possession a bond of a mining company in
COLORADO" in much smaller and less distinct similitude of a United States bond, and the s
type, and bearing the signatures of "R. E. tence being for passing a counterfeit Uni
Hullson, Pres't," and "J. H. Mayson, Sec'y," States bond.
and otherwise numbered and lettered very much
like a grauine bond of the United States.

The defendant filed a general demurrer to the
information, which was overruled by the court;
and he then pleaded not guilty, and was tried
by a jury, who returned a general verdict of
guilty; and he moved for a new trial, for insuf-
ficiency of the evidence to support the verdict.
The rest of the record, a certified copy of
which was the only paper delivered to the keeper
of the house of correction, stated that the de-
fendant was brought to the bar in the custody
of the marshal, and his motica for a new trial
overruled; "and the said defendant, being now
inquired of by the court if he have aught to
say why the judgment and sentence of the
court should not now be pronounced against
him upon the verdict and finding of the jury
in this case, finding him guilty of passing a
counterfeit United States bond, and saying
nothing further than he hath already said; and,
the court being now well advised in the prem-
ises, it is therefore considered, ordered, ad-
judged and sentenced that said defendant,
James S. Wilson, do pay to the United States
a fine of $5,000 for said offense and all the costs
of this proceeding, and that the United States
have execution therefor, and that he be impris-
oned for and during the term of fifteen years at
hard labor in the House of Correction at Detroit,
Michigan; and that the said marshal of this dis-
trict convey the said prisoner to the house of
correction aforesaid and deliver him to the
custody of the keeper thereof; and that the
clerk of this court make out for said marshal
two copies of this judgment and sentence, duly
certified under the seal of this court, one of
which the said marshal shall deliver to the
keeper of said house of correction, and the other
return and file in this court, with the receipt of
said keeper thereon."

The offense described in Rev. Stat. § 5430 is punishable by a fine of not more than $5,000, or by imprisonment at hard labor not more than fifteen years, or by both; and the offense described in § 5431 is punishable by a like fine and imprisonment.

The petitioner alleged in his petition, and contended in argument, that his imprisonment was illegal upon the following grounds:

First. That in excess of the power of the court, and in violation of the Fifth Amendment of the Constitution, he had been held to answer for an infamous crime, and punished by a fine of $5,000 and imprisonment for the term of fifteen years at hard labor, without presentment or indictment by a grand jury.

Second. That he was held, under a judgment void, and in excess of the power of the court, upon an information for a crime which was not committed, against the provisions of chapter 7 of the title, Crimes, in the Revised Statutes, in which cases informations were expressly authorized, and to which they were impliedly restricted, by § 1022 of those statutes.

Third. That the judgment was void and in

Fourth. That he was held by the keeper the Detroit House of Correction without thority of law, because the order of the co for his imprisonment did not show that the co had determined two questions of fact wh were made by Rev. Stat. §§ 5541, 5546, cor tions precedent to the exercise of its power sentence to a prison outside the State of Ark sas, namely: 1st, that there was no suita prison in that State; and 2d, that the Attorn General had designated the Detroit House Correction as a suitable penitentiary in anot State.

Fifth. That the keeper had no warrant mittimus authorizing him to hold the prison as required by Rev. Stat. § 1028.

It is well settled by a series of decisions t this court, having no jurisdiction of crimi cases by writ of error or appeal, cannot charge on habeas corpus a person imprison under the sentence of a circuit or district co in a criminal case, unless the sentence exce the jurisdiction of that court, or there is no thority to hold him under the sentence. parte Watkins, 3 Pet., 193, and 7 Pet., 568; parte Lange, 18 Wall., 163 [85 U. S., bk. 21, ed. 872]; Ex parte Parks, 93 U. S. 18 [bk. L. ed. 787]; Ex parte Siebold, 100 U.S. 371 [ 25, L. ed. 717]; Ex parte Curtis, 106 U. S. [bk. 27, L. ed. 232]; Ex parte Carll, 106 U 521 [bk. 27, L. ed. 288]; Ex parte Yarbrou 110 U. S. 651 [bk. 28, L. ed. 274]; Er po Crouch, 112 U. S. 178 [bk. 28, L. ed. 690]; parte Bigelow, 113 U.S.328 [bk. 28, L. ed. 100

None of the grounds on which the petitio relies, except the first, require extended cussion.

The provision of Rev. Stat. § 1023, deri from the Civil Rights Act of May 31,1870, ch 114, § 8 [16 Stat. at L. 142], authorizing cert offenses to be prosecuted either by indictm or by information, does not preclude the pro cution by information of other offenses of suc grade as may be so prosecuted consistently w the Constitution and laws of the United Sta

The objection of variance between the c viction and the sentence is not sustained by record. The first count is for unlawfully h ing in possession, with intent to sell, an obli tion engraved and printed after the similit of securities issued under authority of the U ed States, and the copy annexed and refer to in that count is of such an obligation. B the verdict and the sentence are general. therefore valid if one count is good. Snyde U. S., 112 U. S., 216 [bk. 28, L. ed., 697]. misrecital of the verdict, in the statement the intermediate inquiry whether the priso had aught to say why sentence should not pronounced against him, is no more than irregularity or error, not affecting the juris tion of the court.

The omission of the record to state as in parte Karstendick, 93 U. S. 396 [bk. 23, L. 889], that there was no suitable penitenti within the State, and that the Attorney-Gen

ted the House of Correction at De-
table place of imprisonment outside

seven less material.

fed copy of the record of the sensonment in the Detroit House of valid upon its face, is sufficient e the keeper to hold the prisoner, any warrant or mittimus. People v. 1 HN. Y.) 154.

tify is not governed by a regard to his rights
or to his protection, but by the consideration
whether the law deems his testimony worthy
of credit upon the trial of the rights of others.
But whether a man shall be put upon his trial
for crime without a presentment or indictment
by a grand jury of his fellow citizens depends
upon the consequences to himself if he shall be
found guilty.

the crame of which the petitioner was By the law of England, informations by the
was an infamous crime, within the Attorney-General, without the intervention of a
the Fifth Amendment of the Con- grand jury, were not allowed for capital crimes,
no court of the United States had nor for any felony, by which was understood
to try or punish him, except upon any offense which at common law occasioned a
or indictment by a grand jury. total forfeiture of the offender's lands, or goods,
17 therefore necessarily brought to the or both. 4 Bl. Com., 94, 95, 310. The ques-
of the question whether the tion whether the prosecution must be by indict-
f having in possession, with intent to ment, or might be by information, thus depend-
i engraved and printed after ed upon the consequences to the convict him-
of a public security of the United self. The Fifth Amendment, declaring in what
rashable by fine of not more than cases a grand jury should be necessary and in
by imprisonment at hard labor not effect affirming the rule of the common law up-
teen years, or by both, is an infa- on the same subject, substituting only for cap-
in the meaning of this Amend-ital crimes or felonies, "a capital or otherwise
the Constitution.
infamous crime," manifestly had in view that
rule of the common law, rather than the rule
on the very different question of the compe-
tency of witnesses.

provision of this Amendment, which relates to this subject, is in these No person shall be held to answer for Archerwise infamous crime, unless on et or indictment of a grand jury, exarising in the land or naval forces, ia, when in actual service in time bic danger.”

pe and effect of this, as of many other of the Constitution, are best ascerBy bearing in mind what the law was

Lan Eden (afterwards Lord AuckPrinciples of Penal Law, which h three editions in England and Ireland within six years before aration of Independence, observed, re two kinds of infamy; the one the pinion of the people respecting pusament; the other in the conaw respecting the future credie dequent." Eden's Principles of dh. 7, § 5.

was already established law, which disqualified a convict to depended upon the character of not upon the nature of his punPrick Mackinder, Willes, 665; 2 143 2 Hawk, chap. 46, § 102; The * 1 Leach, 4th ed. 442. The to testify appears to have been the adjudged guilty of treason, y, and crimes injuriously affect and fraud the administration perjury, subornation of per on of testimony by bribery, ruse one of crime, or to procure fa witness; and not to have been of private cheats, such as the ods by false pretenses, or the feit coin or forged securities. 27 873, Utley v. Merrick, 11 Met., ,5 How, 410, 433, 434.

and the very terms of the Fifth Amendment show that to be a witness is not the only

vict shall be permitted to tes

The leading word "capital" describing the crime by its punishment only, the associated words "or otherwise infamous crime" must, by an elementary rule of construction, include crimes subject to any infamous punishment, even if they should be held to include also crimes infamous in their nature, independently of the punishment affixed to them.

A reference to the history of the proposal and adoption of this provision of the Constitution confirms this conclusion. It had its origin in one of the Amendments, in the nature of a Bill of Rights, recommended by the Convention by which the State of Massachusetts in 1788 ratified the original Constitution, and as so recommended was in this form: No person shall be tried for any crime, by which he may incur an infamous punishment, or loss of life, until he be first indicted by a grand jury, except in such cases as may arise in the government and regulation of the land and naval forces." Journal Massachusetts Convention 1788 (ed. 1856), 80, 84, 87; 2 Elliot's Debates, 177. As introduced by Mr. Madison in 1789 at the first session of the House of Representatives of the United States, it stood thus: "In all crimes punishable with loss of life or member, presentment or indictment by a grand jury shall be an essential preliminary." Being referred to a committee, of which Mr. Madison was a member, it was reported back in substantially the same form, in which it was afterwards approved by Congress and ratified by the States. 1 Annals of Congress, 435, 760.

Mr. Dane, one of the most learned lawyers of his time, and who as a member of the Continental Congress took a principal part in framing the Ordinance of 1787 for the government of the Northwest Territory, assumes it as unquestionable that, by virtue of the amendment of the Constitution, informations "cannot be used where either capital or infamous punishment is inflicted." 7 Dane Abr., 280. Judge Cooley has expressed a similar opinion. Cooley, Constitutional Law, 291.

[424]

[425]

[426]

SUPREME COURT OF THE UNITED STATES.

The only mention of informations in the first | he has the right to insist that he shall not be OCT. TERM Crimes Act of the United States is in the clause put upon his trial, except on the accusation of providing that no person tried or punished for an offense, not capital, nor "shall be prosecuted, a grand jury. for any fine or forfeiture under any penal statute, unless the indictment or information for the same shall be found or instituted within two years from the time of committing the offense, or incurring the fine or forfeiture." Act of April 30, 1790, chap. 9, 32; 1 Stat. at L.,119. For very many years afterwards, informations were principally, if not exclusively, used for the recovery of fines and forfeitures, such as those imposed by the revenue and embargo laws. Acts of July 31, 1789, chap. 5, § 27, 1 Stat. at L., 43; March 26, 1804, chap. 40, 3, and March 1, 1809, chap. 24, § 18, 2 Stat. at L., 290, 532; U. S. v. Hill,1 Brock., 156, 158; U. S.v. Mann, 1 Gall., 3, 177; Walsh v. U. S., 3 Woodb. & Min., 341. Mr. Justice Story, writing in 1833, said: "This process is rarely recurred to in America, and it has never yet been formally put into operation by any positive authority of Congress, under the National Government, in mere cases of misdemeanor, though common enough in civil prosecutions for penalties and forfeitures." Const., 1780. Story,

has been sometimes maintained, that no crime Nor can we accede to the proposition which is infamous, within the meaning of the Fifth Amendment, that has not been so declared by Congress. See U. S. v. Wynn, 3 McCrary, 266, and 1 Fed. Rep., 57; U. S. v. Petit, 11 Fed. Rep., 58; U. S. v. Cross, 1 McArthur, 149. The purpose of the Amendment was to limit the pow ers of the Legislature, as well as of the prose cuting officers of the United States. We are not indeed disposed to deny that a crime, to the conviction and punishment of which Congress has superadded a disqualification to hold office, is thereby made infamous. U. S. v. Waddell, 112 U. S., 76, 82 [Bk. 28, L. ed., 673]. But the Constitution protecting every one from being prosecuted, without the intervention of a grand jury, for any crime which is subject by law to an infamous punishment, no declaration of Congress is needed to secure, or competent to de feat, the constitutional safeguard.

The remaining question to be considered is whether imprisonment at hard labor for a term of years is an infamous punishment.

those punishments which are cruel or unusual Infamous punishments cannot be limited to because, by the Seventh Amendment of the Constitution, "cruel and unusual punishments' are wholly forbidden, and cannot therefore be lawfully inflicted even in cases of convictions upon indictments duly presented by a grand

The informations which passed without ob-
jection in U. S. v. 1sham, 17 Wall., 496 [84 U.
S., bk. 21, L. ed., 728], and U. S. v. Buzzo, 18
Wall., 125 [85 U. S., bk. 21, L. ed., 812], were
for violations of the stamp laws, punishable by
fine only. And the offense which Mr. Justice
Field and Juge Sawyer held in U. S. v. Waller,
1 Sawy., 701, might be prosecuted by informa-jury.
tion, is there described as "an offense not cap-
ital or otherwise infamous," and, as appears by
the statement of Judge Deady in U. S. v. Block,
4 Sawy., 211, 213, was the introduction of dis-
tilled spirits into Alaska, punishable only by fine
of not more than $500 or imprisonment not
more than six months. Act of July 27,1868, chap.
273, § 4; 15 Stat. at L., 241.

Within the last fifteen years, prosecutions by
information have greatly increased, and the gen-
eral current of opinion in the Circuit and Dis-
trict Courts has been towards sustaining them
for any crime a conviction of which would not
at common law have disqualified the convict to
be a witness. U. S. v. Shepard, 1 Abb. U. S.,
431; U. S. v. Maxwell, 3 Dill., 275; U. S. v. Block
[supra]; U. S. v. Miller, 3 Hughes, 553; U. S.v.
Baugh, 4 Hughes, 501; U. S. v. Yates, 6 Fed.
Rep., 861; U. S. v. Field, 21 Blatchf., 330; Re
Wilson, 18 Fed. Rep., 33.

But, for the reasons above stated, having re-
gard to the object and the terms of the first pro-
vision of the Fifth Amendment, as well as to
the history of its proposal and adoption, and to
the early understanding and practice under it,
this court is of opinion that the competency of
the defendant, if convicted, to be a witness in
another case is not the true test; and that no
person can be held to answer, without present-
ment or indictment by a grand jury, for any
crime for which an infamous punishment may
be imposed by the court.

forgery of public securities, or knowingly ut By the first Crimes Act of the United States tering forged public securities with intent to de fraud, as well as treason, murder, piracy, mu tiny, robbery, or rescue of a person convicted of a capital crime, was punishable with death most other offenses were punished by fine and ishment of stealing or falsifying records, fraud imprisonment; whipping was part of the pun ulently acknowledging bail, larceny of goods, ol receiving stolen goods; disqualification to hold office was part of the punishment of bribery and those convicted of perjury or subornation of perjury, besides being fined and imprisoned were to stand in the pillory for one hour, anc rendered incapable of testifying in any court o: the United States. Act of April 30, 1790, chap 9; 1 Stat. at L, 112-117; Mr. Justice Wilson': charge to the Grand Jury in 1791,3 Wils. Works 380, 381.

prisonment at hard labor. But the punishmen of both fine and imprisonment at hard labo By that Act no provision was made for im was prescribed by later statutes, as, for instance by the Act of April 21, 1806, chap. 49, for coun terfeiting coin, or uttering or importing coun terfeit coin; and by the Act of March 5, 1825 chap. 65, for perjury, subornation of perjury forgery and counterfeiting, uttering forged se curities or counterfeit money, and other grave crimes. 2 Stat. at L., 404; 4 Stat. at L., 115 The question is, whether the crime is one for ing in the pillory were abolished by the Act o Since the punishments of whipping and of stand which the statutes authorize the court to award February 28, 1839, chap. 36, § 5, 5 Stat. at L. an infamous punishment, not whether the pun- 322, imprisonment at hard labor has been sub ishment ultimately awarded is an infamous one. stituted for nearly all other ignominious pun When the accused is in danger of being sub-ishments not capital. And by the Act of March jected to an infamous punishment if convicted, 3, 1825, chap. 65, § 15, re-enacted in Rev. Stat

92

any sentence of imprisonment at hard | such imprisonment at hard labor was an infa
may be ordered to be executed in a state mous punishment. 8 Gray, 370–372.
penitentiary. 4 Stat. at L., 118.
parishments shall be considered as in-

Imprisonment at hard labor, compulsory and
unpaid, is, in the strongest sense of the words,
may be affected by the changes of pub-involuntary servitude for crime," spoken of
one age to another. In former in the provision of the Ordinance of 1787, and
we put in the stocks was not consid- of the Thirteenth Amendment of the Constitu-
3o may sarily infamous. And by the first tion, by which all other slavery was abolished.
Act of the United States, whipping Deciding nothing beyond what is required by
with moderate fines and short terms the facts of the case before us, our judgment is
at in limiting the criminal juris- that a crime punishable by imprisonment for a
District Courts to cases "where term of years at hard labor is an infamous
shment than whipping, not ex- crime, within the meaning of the Fifth Amend-
try stripes, a fine not exceeding one ment of the Constitution; and that the District
are or a term of imprisonment not Court, in holding the petitioner to answer for
moths, is to be inflicted." Act such a crime, and sentencing him to such im-
34, 1789, chap. 20, § 9; 1 Stat. at prisonment, without indictment or presentment
Bat the present day either stocks or by a grand jury, exceeded its jurisdiction, and
ng ngai be thought an infamous pun- he is therefore entitled to be discharged.
Writ of habeas corpus to issue.
True_copy. Test:

re than a century, imprisonment at

the state prison or penitentiary or artstitution has been considered an Pament in England and America. De punishments that consist prin

James H. McKenney, Clerk, Sup. Court, U.8.
Cited-114 U. S., 430; 115 U. S., 499.

UNITED STATES, Piff.,

WILLIAM G. PETIT, alias WM. GEORGE.
(See S. C., Reporter's ed., 429-430.)
Infamous crime-imprisonment without indict-
ment, etc.-habeas corpus.

famous crime, without having been presented or
1. A person sentenced to imprisonment for an
indicted by a grand jury, as required by the Fifth
Amendment of the Constitution, is entitled to be
discharged on habeas corpus.

Dominy," Sir William Blackhard labor, in the house of corerwise," as well as whipping, the the stocks 4 Bl. Com., 377. And le treating it as doubtful whether the stocks or in the house of corfamous, says: "Punishments clearare death, gallows, pillory, brandconfinement to hard labor, and 2 Dane, Abr., 569, 570. view has been forcibly expressed Shaw. Speaking of imprisonate prison, which by the statutes is was required to be at hard "Whether we consider the term of years at hard labor is an infamous crime, 2. A crime punishable by imprisonment for a punishment' in their popular within the provision of the Fifth Amendment of the they are understood by the Con- Constitution, which declares that "no person shall 3, a sentence to the state pris-be held to answer for a capital or otherwise infaern of time, must be considered as ment of a grand jury, mous crime, unless on the presentment or indictthem. The convict is placed in [No. 237.] of punishment, common to the ert to solitary imprisonment, adres, to be clothed in con- ON a certificate of division in opinion between subjected to hard labor the Judges of the Circuit Court of the Unitto hard fare, coarse and meager ed States for the Eastern District of Missouri. ere discipline. Some of these the house of correction is subject e of correction, under that and atames of workhouse and bridewell, e character of infamy attached the state prison, for any term w by law substituted for all the The defendant having pleaded to the jurisments formerly in use; and, diction, the Circuit Judge and the District ams, then there is now no in- Judge were opposed in opinion upon the ques ther than capital." Jones tions "(1) whether the United States could pro 329,349. In the same case, ceed by information, instead of indictment, to More, while dissenting from the try a defendant charged, under section 5457 of on the question whether un- the Revised Statutes, with the violation thereaw of the land" in the Con- of; (2) whether the offenses declared in said sets an indictment by a section are infamous crimes, to be prosecuted ential to a prosecution for a solely through indictment, pursuant to Article by imprisonment in the state V. of the amendments to the Constitution of position upon that ques- the United States;" whereupon these questions at with the recent judgment were certified to this court. Hertado v. People of California, 29, L. ed., 232], yet con **** 2 other judges in holding that

Submitted Apr. 7, 1885. Decided Apr. 13, 1885.

This case arose upon an information against Petit, brought under the Revised Statutes, section 5457, for the crime of passing a counterfeit half dollar, which offense is punishable by a fine of not more than $5,000, and imprisonment at hard labor not more than ten years.

Mr. S. F. Phillips, Solicitor-Gen., for the
United States.

No counsel appeared for the defendant.

[429]

[430]

[430]

[218]

[219]

The first question certified in this case is answered in the negative, and the second in the affirmative, on the authority of Ex parte Wilson, decided at the present Term [ante, 89]. True copy. Test:

Mr. Chief Justice Waite delivered the opin- | of the person and property of Martha M. Sims ion of the court: The bill alleged that at the time of the appoint ment the ward resided in New York. The an swer alleged that at that time she was tempo rarily residing there, and was then, as well as in 1861, a citizen of Alabama. The hearing of the merits of the case was had in the Circuit Court upon the pleadings, and upon certain facts stated by the defendant and admitted by the plaintiff, which, so far as they affected the domicil of the ward, were as follows:

James H. McKenney, Clerk, Sup. Court, U. S.

G. DE ROSSET LAMAR, EXT. of GAZAWAY
B. LAMAR, Deceased, Appt.,

v.

William W. Sims, the ward's father, died at Savannah, in the State of Georgia in 1850, leav ing two infant daughters, and a widow, who in 1853 married a citizen of New York, and thence forth resided with him in that State until 1856, when they removed to Connecticut, and resided there until her death in 1859. The two infants lived with their mother and stepfather in New

MARY J. C. MICOU, Admrx. of MARTHA M. York (where Lamar was appointed in 1855 guard

SIMS, Deceased.

(See S. C., Reporter's ed., 218-223.)

Domicil of infants-guardian appointed in an
other State what law governs acts of-judicial
notice by Federal Courts of state laws.

*1. A guardian, appointed in a State which is not
the domicil of the ward, should not, in accounting in
the State of his appointment for his investment of
the ward's property, be held, unless in obedience to
express statute, to a narrower range of securities
than is allowed by the law of the State of the ward's

ian of both infants) and in Connecticut, from her second marriage until her death, and then went to Georgia, and thenceforth resided with their father's mother and her daughter and only living child, their aunt, at first in Georgia and afterwards in Alabama.

Upon those facts, this court assumed the domicil of William W. Sims to have been in Georgia; and held that the domicil of his children continued to be in that State throughout their residence with their mother and her second husband in New York and Connecticut, and until their return to Georgia upon the death of their mother in 1859, and was thereafter in Georgia or Alabama; that whether the guardian's dom2. Infants having a domicil in one State, who after the death of both their parents take up their resi-icil was in Georgia or in New York, he should dence at the home of their paternal grandmother not, in accounting for his investments, be held and next of kin in another State, acquire her domi- to a narrower range of securities than was al

domicil.

cil.

3. The courts of the United States take judicial no-lowed by the law of the ward's domicil; and
tice of the law of any State of the Union, whether
depending on statutes or on judicial opinions.
4. Lamar v. Micou, bk. 28, confirmed.

[No. 61.]

that many of his investments were justified by the law of Georgia or of Alabama; and therefore reversed the decree of the Circuit Court, which had held him to account according to

Petition filed Jan. 20, 1885. Decided Mar. 30, the law of New York for the manner in which

1885.

he had invested the property. 112 U. S. 452

from the Circuit of [bk. 28, L. ed. 751].

ed States for the Southern District of New York.

On petition for a rehearing.

For the history and facts of the case, see the
opinion of the court and the report of the opin-
ion upon first hearing, 112 U. S., 452. L. ed.,
bk. 28, 751.

Messrs. S. P. Nash and Geo. C. Holt, for
appellee, filed a brief in support of the petition.
Messrs. Edward N. Dickerson and Chas.
C. Beaman, Jr., for appellant, opposed.

Mr. Justice Gray delivered the opinion of the

court:

This is a petition for a rehearing of an appeal from a decree of the Circuit Court of the United States for the Southern District of New York, upon a bill filed against the executor of a guardian by the administratrix of his ward.

Gazaway B. Lamar was appointed in 1855, by a surrogate's court in New York, guardian

*Head notes by Mr. Justice GRAY.

NOTE.-Evidence-U. S. Courts take judicial notice of state laws. M'Niel v. Holbrook, 37 U. S. (12 Pet.), 84, bk. 9, 1009, note.

The questions so passed upon, though hardly touched by either counsel at the first argument, determination of the rights of the parties, and arose upon the facts admitted, were vital to the could not be overlooked by this court. The importance and comparative novelty of some submission of a full brief in support of the peof the questions induced the court to invite the tition for a rehearing. But, upon careful consideration of the petition and brief, the court has seen no ground for changing its opinion, and has not thought it necessary to add any thing beyond what has been suggested by examination of the authorities cited for the petitioner.

In Pritchard v. Norton, 106 U S., 124 [bk. 27, L. ed. 104], the point decided was that the validity and effect of a bond, executed in New York, to indemnify the obligee therein against his liability upon an appeal bond executed by him in a suit in Louisiana, was to be governed by the law of Louisiana. The decision was based upon the fundamental rule, or, in the words of Chief Justice Marshall, the “principle of universal law"-" that in every forum a contract is governed by the law with a view to which it was made." Wayman v. Southard, 10