appellate court could only reverse or affirm the judgment of the court of original jurisdiction, it followed in case the judgment was reversed, that the prisoner was discharged.

State legislatures also, in some instances, have created appellate courts in criminal cases without investing such courts with the power either to impose the sentence which the subordinate court should have imposed or to remand the prisoner to the subordinate court for that purpose, and cases are referred to which show that the prisoner in such jurisdictions was necessarily discharged, but all such difficulties in most jurisdictions where they existed for a time have been obviated by more discreet legislation. Ratzky v. People, 29 New York, 124; McKee v. People, 32 Ib. 239; Campbell v. Regina, 11 Queen's Bench, 810; Jacquins v. Commonwealth, 9 Cushing, 279. Unsupplied as the jurisprudence of the United States is with any appellate tribunal for the correction of errors in criminal cases, it seems necessary to preserve all the corrective power legally vested in the courts of original jurisdiction to that end. Errors and mistakes will occur, but it is settled law that a writ of error will not lie from this court to a Circuit Court, and it is equally well settled that a writ of error will not lie in the circuit for any such purpose. Pickett's Heirs v. Legerwood, 7 Peters, 147. Resort to that remedy has certainly been had in a few instances in the Circuit Court in civil cases, but all the authorities agree that if the error be in the judgment itself and not in the process, a writ of error does not lie in the same court. Kemp v. Cook, 18 Maryland, 137; Hawkins v. Bowie, 9 Gill & Johnson, 437. Errors of fact in the process sued out in a civil action, or such as happened through the fault of the clerk in the record of the proceedings prior to the judgment, might be corrected at common law by a writ of error returnable in the court where the action was commenced and where the judgment was rendered. When granted to reëxamine a judgment rendered in the King's Bench it was called a writ of error coram nobis, because it was founded upon a record and process described in the writ as remaining "before us," in accordance with the theory that the sovereign of the kingdom presided in the court. 2 Tidd's Practice, 1136; 2 Williams's Saunders, 101, note 1; Dewitt v. Post, 11 Johnson, 460; 3 Blackstone's Commentaries, by Cooley, 407, note 4. Such a writ might also be sued out in the common pleas for a like purpose, but the writ, when sued out and returnable in the latter court, was denominated a writ of error coram vobis, because the writ was directed to "you and your associates" meaning the chief justice and the other justices of that court. 1 Archbold's Practice, 6th ed. 504. Proceedings under such a writ of error, in respect to a civil action, never extended to the judgment, as the rule was universal that a writ of error for that purpose must issue from another and superior tribunal. Pickett v. Legerwood, 7 Peters, 148; 1 Rolle's Abridgment, 746; 2 Sellon's Practice, 484; 3 Blackstone's Commentaries, 407, note 5. Such a writ, when returnable in the King's Bench, might extend to a criminal case as well as to a civil case, and might, within the scope of its operations, embrace questions of law as well as questions of fact, but it never extended

to the correction of any error in the judgment, because the writ of error for that purpose must be issued from the proper appellate tribunal. The Queen v. O'Connell, 7 Law Rep. (Irish), 356, 357; 9 Viner's Abridgment, 491.

Sufficient has already been remarked to show that such an error in the judgment in a criminal case cannot be corrected at all unless the correction can be made in the mode adopted by the Circuit Court in this case, as it is clear that a writ of error will not lie from this court to a Circuit Court in a criminal case for any purpose, nor will a writ of error coram nobis lie in a Circuit Court to correct any error of law or fact in a Circuit Court. United States v. Plumer, 3 Clifford, 59.

2. Such an error, it is said, cannot be corrected in that mode in this case because the prisoner had been in confinement five days under the sentence before the order was made vacating the sentence and setting it aside, and the proposition is advanced in argument that no such correction can be made in any case after the prisoner is removed from the court in pursuance of the sentence, which is equivalent to the proposition that it cannot be made at all in that mode, as it will seldom or never happen that such a mistake will be discovered at the time it is made.

Cases may be imagined where the denial of such a remedy would shock the public sense; as if the Circuit Court, in a case where the prisoner was duly convicted of murder upon the high seas under the Crimes Act of the third of March, 1825, should, through inadvertence, sentence the prisoner not only that "he shall suffer death,” but that the body of the offender "shall be delivered to a surgeon for dissection," as the sentence may be in a case where the indictment and conviction are under the original Crimes Act. 1 Stat. at Large, 113; 4 Ib. 115.

Execution seldom or never immediately follows the sentence, but the sentence is that the prisoner be remanded to the place whence he came, and that he be there imprisoned until the day fixed for his execution, which shows that the term of imprisonment from the date of the sentence to the time of execution is an essential part of the sentence. Suppose in the case suggested, the error is not discovered before the expiration of ten days, will any one contend that it cannot be corrected? If not, then it must be executed as it stands, or the prisoner must be set free, perhaps to repeat his offence.

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3. Assume that the rule adopted by the majority of the court in this case is correct, and it follows beyond peradventure that the court could not vacate the sentence and pass the sentence authorized by law, and if not, then it is clear that it could not be corrected any other mode, as it is settled law that a writ of error will not lie for the purpose either from this court or in the court where the error was committed. Public justice must, therefore, be defeated, as all will agree, if the error cannot be corrected, that the prisoner would be entitled to a discharge on habeas corpus, as every sentence in a criminal case is an entirety, so that if any part of it is unauthorized by law the whole sentence is illegal. Any rule which will peremptorily discharge a prisoner, legally convicted of an offence,

whether it be a felony or misdemeanor, merely because the court committed an error in pronouncing the sentence, cannot be a sound one, nor is it believed that it will be satisfactory to any who have much acquaintance with the administration of criminal justice in the federal courts.

Many cases are cited by the petitioner, but an examination of them will show that not one of the number supports any such proposition as that which it is necessary to adopt to sustain the ruling of this court in ordering the discharge of the prisoner, nor can any case be found where such a doctrine is directly laid down.

Where the sentence imposed is legal in all respects, it is held in Maine that the judge, after the prisoner has been remanded in execution of the sentence, cannot order him to be brought up and set at the bar for the purpose of revising the sentence and increasing the punishment. In that case the prisoner had been duly sentenced to six months' imprisonment in the county jail, and he had served out nineteen days of the time, when the court ordered that he should again be brought up, and the court imposed a new sentence of imprisonment for the term of three years in the state's prison; but it is apparent that, the first sentence being regular and according to law, there was no error to correct, which shows that the case is as widely different from the one before the court as truth is from error. Brown v. Rice, 57 Maine, 56.

Doubts may well arise whether the decision in that case is correct, but it is not necessary to call it in question in this case, as the first judgment in this case, as conceded by the petitioner, was wholly illegal, and in such a case the authorities appear to be uniform that the sentence authorized by law may be imposed at any time within the same term, and in some of the cases it is held that it may even be done in a subsequent term. Easterling v. State, 35 Mississippi, 212; Jefferies v. State, 40 Alabama, 384. Promptitude in criminal trials is enjoined by the Constitution, but delays will occur in spite of every effort to expedite the result. Time for proper deliberation is indispensable, nor is it reasonable to expect that an error will be corrected before it is discovered. Beyond all doubt an erroneous judgment may be vacated and set aside if the error is discovered within the term, and when such a judgment is set aside, the case stands just as it would have stood if the erroneous judgment had never been passed, as the proceeding is still in fieri until the regular sentence is imposed. 3 Blackstone's Commentaries, by Cooley, 407; Cook v. Wood, 24 Illinois, 296; Taylor v. Lusk, 9 Iowa, 445. Errors even in the administration of criminal law will occur, and the ends of justice imperatively require that when they do occur there shall be some appropriate mode for their correction without discharging a prisoner legally convicted, as it cannot be admitted that an error of the court in passing the sentence of the law can have the effect to expiate the offence of the prisoner or to condone the criminal act of the offender.

4. All other objections failing, it is contended in the next place that the fact that the clerk deposited the amount of the fine imposed by the first sentence to the credit of the Treasurer of the United

States the day before the second sentence was passed, operated as an estoppel against the act of the court in vacating the first sentence and imposing the existing sentence.

Dates are of much importance in this case, and by reference to the petition subsequently presented to the circuit judge it appears that a habeas corpus in behalf of the prisoner was issued by the district judge on the same day the clerk deposited the amount of the the fine as aforesaid, and that the writ of habeas corpus was made returnable on the following day, which is the day when the illegal sentence was vacated and set aside, and when the sentence authorized by the act of Congress was imposed, and much reason exists to suppose that the clerk was induced to make the deposit thus early in order that the prisoner might have the benefit of that proof in the hearing upon the petition for habeas corpus, which was previously set down for the following day. If that deposit had not been made the amount of the fine would have remained in the registry of the court, in which case it might have been returned to the prisoner by the order of the court. Such a payment made under such circumstances cannot expiate the offence of the prisoner or condone the criminal act of which he was legally convicted by the verdict of a jury duly summoned, impanelled, and sworn. Cooley on Constitutional Limitations, p. 325. Measures for the correction of of the illegal sentence had been instituted in behalf of the prisoner, and it cannot be that the power of the court to perform the mandate of the act of Congress can be thwarted by the mere circumstance that the clerk of the court, of his own motion or at the suggestion of the prisoner or his counsel, deposited the amount of the fine paid to him by the prisoner to the Treasurer of the United States. When the first sentence was vacated and set aside, the money paid to the clerk for the fine became ipso facto the money of the prisoner, and wherever it may be now it is his money, nor can it make any diffierence even if it be held that it cannot be paid back without the the consent of Congress, as it is money which ex æquo et bono belongs to the prisoner. Money paid under a mistake of fact may be recovered back, and it does not change the legal status of the right because the holder happens to be the government, which cannot be sued.

Suggestions of various kinds are made to avoid, if possible, the force of the conceded fact that the conviction remains undisturbed and that it rests upon the solid foundation of a valid indictment, one or two of which will be briefly noticed.

Attention is called to the constitutional provision that no person shall be subject for the same offence to be twice put in jeopardy of life or limb, which, as Judge Story says, means that a party shall not be tried a second time for the same offence after he has once been convicted or acquitted of the offence charged by the verdict of a jury, and judgment has been passed thereon for or against him. But the existing sentence is founded upon the same conviction as the first sentence, which of itself shows that the provision referred to has no application to the case, nor does the provision mean that the accused shall not be tried a second time if the jury have been discharged without giving any verdict, or, if having given a verdict,

judgment has been arrested upon it or a new trial has been granted in his favor, for in such a case, says the learned author, his life or limb cannot judicially be said to have been put in jeopardy. 2 Story on Constitution, § 1787; Vaux v. Brook, 4 Reports, 39 b; Fox v. State, 5 Howard, 432; United States v. Marigold, 9 Ib. 560; Moore v. State, 14 Ib. 20. What is meant by the phrase "twice put in jeopardy of life or limb" has been judicially defined, and the definition cannot now be enlarged to help out a predetermined unsound judicial conclusion. It means that a party shall not be tried a second time for the same offence after he has once been acquitted or convicted, unless the judgment has been arrested or a new trial has been granted, on motion of the party; but it does not relate to a mistrial. United States v. Haskell, 4 Washington, 410; United States v. Perez, 9 Wheaton, 579. Even in a capital case the court may discharge a jury without their giving a verdict, whenever in the opinion of the court there is a manifest necessity for such an act, or the ends of justice will otherwise be defeated; and for the same reason the court, during the same term, may vacate an erroneous judgment and render the judgment which the law requires. 2 Graham & Waterman on New Trials, c. 2, pp. 51

135.

One trial and verdict, says Cooley, must as a general rule protect the accused against any subsequent accusation of the same offence, whether the verdict be for or against him, and whether or not the court is satisfied with the finding, if it be in his favor and he was put upon trial before a court of competent jurisdiction and upon an indictment which is sufficient in form and substance to sustain the conviction. But if the court had no jurisdiction of the suit, or if the indictment was so far defective that no valid judgment could be rendered upon it, or if by any overruling necessity the jury were discharged without a verdict, from the sickness or death of the judge or of a juror, or from the inability of the jury to agree upon a verdict, after reasonable time allowed for deliberation, or if the term of the court as fixed by law comes to an end before the trial is finished, or the jury are discharged with the consent of the defendant express or implied, or if the verdict is set aside, on motion of the defendant, or on a writ of error in a jurisdiction where provision for a second trial is made by law ― in any of these cases the accused may be again tried for the same offence, and the rule is well settled that the former trial will afford him no protection or defence. Cooley's Constitutional Limitations, 2d ed. 327.

Where the verdict and judgment are set aside on a writ of error in an appellate tribunal, if the law of the jurisdiction makes no provision for a second trial the prisoner must be discharged, but it is well settled law that it is competent for the legislature to provide that on reversing the judgment in such a case the court, if the prior proceedings are regular, shall remand the case for the proper sentence. McKee v. People, 32 New York, 239.

Exceptions of the kind have their foundation in necessity, as all experience shows that errors and casualties will sometimes intervene in the administration of criminal justice. Autrefois acquit or