People agt Ferris. It is claimed by the plaintiff, that upon the testimony before the referee, it appears that a portion at least of the property thus disposed of by the defendant, came originally from the judgment debtor. But the referee finds the other way, and in this he is sustained by the preponderence of the evidence. I must hold, therefore, that the defendant has not been guilty of the misconduct alleged, and that he is entitled to his discharge from the attachment, with such costs as are allowed by law. COURT OF APPEALS. THE PEOPLE agt. FRANK FERRIS. The general term of the supreme court has the power to fix a day for the execution of a prisoner, although he has been tried, convicted and sentenced in the court of general sessions, upon the affirmance of that judgment on appeal. The act of April, 18th, 1859, which says, upon the affirmance of a judgment in a capital case, it shall remit the record to the court from which it came, is not applicable to a case where the record is removed from the supreme court to the court of appeals. Upon the affirmance of a judgment in the court of appeals, and the record is remitted to the supreme court, it is the duty of that court to follow the directions of the appellate court. September Term, 1866. On the 25th of September, 1866, application was made to the Hon. J. K. PORTER, one of the judges of the court of appeals, for a writ of error in behalf of Frank Ferris, on the ground that the supreme court, general term, had no power to sentence the prisoner to death. The judge granted a rule to show cause, returnable on the 28th inst., before the court of appeals at Albany. WILLIAM F. KINTZING, JR., for the motion, argued, Upon the conviction of Francis Ferris, otherwise called Frank Ferris, the court of general sessions pronounced the following judgment against him, viz : 66 'Whereupon all and singular the premises being seen, People agt. Ferris. and by the said justice fully understood, it is considered by the said justice that the said Francis Ferris, otherwise called Frank Ferris, for the murder and felony aforesaid, whereof he stands convicted, be taken hence to the city prison of the city of New York, from whence he came, and on Friday, the 14th day of April next ensuing, be hanged by the neck until he is dead." This judgment was approved by the supreme court and court of appeals, and was and is now a lawful and binding judgment, and the only one that can be legally enforced; and instead of remitting the record to the court of general sesssions, for that court to fix a day for the execution of the original sentence (that above recited), as the statute requires the supreme court to do, that court did, as appears from the record of its proceedings, and by the warrant issued from the court to the sheriff, for the execution of the convict, itself pronounce a new, complete and an independent sentence and judgment against the prisoner, and did fix and appoint the 17th day of August for the execution of that sentence, The following is a copy of the sentence by the court, and of the order fixing the day upon which to carry it into effect: "It is therefore considered, ordered and adjudged by the said court, that the said Francis Ferris, otherwise called Frank Ferris, for the murder in the first degree and felony aforesaid, whereof he stands convicted as aforesaid, be taken hence to the city prison of the city of New York, from whence he came, and on Friday, the 17th day of August next, be hanged by the neck until he is dead. "Now, therefore, you the said sheriff are required, and by these presents strictly commanded, to cause execution to be done upon the said Frank Ferris according to law. And the said court hath appointed, and doth hereby appoint Friday, the 17th day of August next, the day upon which the said sentence shall be executed." In witness whereof, &c. (Signed) GEO. G. BARNARD, People agt. Ferris. Here is a second sole and distinct judgment, denouncing the same penalty upon the same person, from the same verdict as that by the court of general sessions. Now I aver that there is not, and never has been, any statute law authorizing the supreme court in affirming a judgment upon a writ of error, to pronoune a new sentence in a case like this, and that it was never before done. If this case had gone from the sessions to the supreme court upon a bill of exceptions by certiorari, without any judgment in the trial court, this would be a proper sentence, fully authorized by an express statute (3 R. S. 5th ed. p. 1034, § 27). But when there is a judgment declared in the court below, and the record, with that judgment, is taken by writ of error to the supreme court, and all the proceedings approved, any second or other judgment by the appellate court is without authority, and clearly erroneous. The following statute provides fully and plainly what shall be done by the supreme court in a case like the present: Whenever, after conviction upon any indictment, the record thereof shall be removed from any other court into the supreme court, for the purpose of review, the supreme court shall, upon affirming or reversing the judgment or other proceedings, remit the record to the court from which the same was removed, and the court to which the same shall be remitted, shall have the power to proceed thereon according to the decision and direction of the supreme court" (Laws of 1859, chap. 462, § 2). Previous to the passage of this act the Revised Statutes contained the following provision upon the same subject, and it is plain that neither under that nor this, was or is there any authority given the supreme court to pronounce a new judgment upon a convict. The difference between the old and new statutes being, that under the old the supreme court fixed the day for the execution of the original jndg-· ment-pronouncing no other; and under the new, that court is required to send the record to the court from which it came, that that court may appoint the time for the infliction of the penalty. People agt. Ferris. The prior statute was as follows: "If the supreme court shall affirm such judgment, it shall direct the sentence pronounced to be executed, and the same shall be duly executed accordingly," &c (3 R. S. p. 1035, § 26). It is submitted, with great deference and respect, that the supreme court, both in passing this sentence and also in fixing the day for the execution of the prisoner upon any sentence (as will be shown under the next objection), has exceeded its power, and, therefore, confers no authority on the sheriff to hang the convict by virtue of his present warrant. If the 17th of August is named for the execution of the judgment pronounced by the supreme court, and that judgment is void, then no day has been lawfully fixed upon which the prisoner can be legally hanged, as none has been appointed for the enforcement of the first and only lawful judgment that has or can be pronounced in the case. My second objection is, as before stated, that the supreme court had no authority to fix a day for the execution of any judgment against this prisoner-the sole power to do that being in the court in which he was tried, convicted and originally sentenced. Formerly the Revised Statutes provided, as before stated, that "if the supreme court shall affirm the judgment, it shall direct the sentence pronounced to be executed, and the same shall be executed accordingly." This law was strictly observed by the supreme court, in all cases where, by reason of an appeal, the day fixed for execution by the trial court was passed, until that statute was substituted by the act of 1859, above recited. This act, as is seen by referring to it, provides that "whenever after conviction upon any indictment, the record thereof shall be returned into the supreme court for the purpose of revision, the supreme court shall, upon affirming or reversing the judgment or other proceedings, remit the record to the court from which the same was removed, and the court to which the same shall be so remitted, shall have power to proceed thereon, according to the decision and direction of the supreme court." Ever since the passage of this law, the supreme court has ceased to fix People agt Ferris. the day for enforcing the judgment of the court in which the appellant was tried, but in every case throughout the state, so far as I can learn (the case of Willis, 32 N. Y. forms no exception), the supreme court has, on affirming the judgment, remitted the record to the court from which it came, that the court might appoint another day for the infliction of the penalty This act of 1859, embraces the entire subject comprised by the Revised Statutes, and is in conflict with it, and thus by implication repeals the statute as completely as if the act contained a clear repealing clause. See authorities: (Broom's Leg. Max. 2d ed. p. 23; Com. agt. Cramby, 1 Ashmead, 179 ; Dugan agt. Gittings, 3 Gall. 138; Button agt. Com. 1 Cushing, 502; State agt. Miskimmons, 2 Coit [Indiana], 440; Com. agt. Canby, 10 Pick. 37; Towle agt. Merrit, 3 Greenleaf, 22; Goodman agt. Buttrick, 7 Mass. 140; Bartlett agt. King, 12 Mass. 537-545; State agt. Wentworth, 8 Porter, 434; Smith agt. State, 1 Steward, 506; Case of Ashby, 4 Pick. 21-23; Mason agt. Waite, 1 Id. 452. Ellis agt. Page, Id. 43-45; Jennings agt. Com. 19 Id. 168; Lighton agt. Walker, 9 N. H. 59; Bryan agt. Lundberger, 5 Texas, 418; Caldwell agt. St. Louis Ins. Co. 1 Low, 85.) Two statutes relating to the same subject may exist together, provided they are not repugnant. But where, as in this case, a particular power and duty is expressly conferred and devolved upon one court by an express provision of law (as upon the supreme court by the Revised Statutes), and afterward, that court is by an equally expressive statute commanded (shall remit, &c.) to remit the record (the subject for an exercise of that power and duty) to a second court, and that second court is required to exercise the power and duty before conferred and devolved upon the first (as by the act of 1859); when that is the case, as it is in this instance, the two statutes cannot equally exist at the same time, and be equally operative on the same subject. This statute of 1859, is in effect, that the court shall not exercise the power and perform the duty of naming the day for the execution; for it declares that that court shall remit the case to the trial |