text:
    ROWAN VS WALLACE, JUDGE, &C.

    The return of a sheriff, by endorsing on the process, that service was acknowledged by defendant, is sufficient.
    Error to the Circuit court of Madison county.
    Debt on administration bond. In this case, a question arose, upon one of the grounds stated in the bill of exceptions, to wit:
    That the court below erred, in rendering judgment without a return of the sheriff, that the writ had been executed, and without proof that the plaintiff in error had acknowledged the service of the writ.
    The return of the sheriff, endorsed on the writ, was as follows:
    “Service acknowledged, 15th August, 1836.
    “M. M. Rowan.”
    “Received, 15th August, 1836.
    “ D. B. Turner, sheriff.”
    “ Service acknowledged by defendant.

      “D. B. Turner, sheriff.” '

      Hopkins & Parsons, for the plaintiff in error.

      McGlung, contra.
   COLLIER, C. J.

— All the points made in this case, have been decided against the plaintiff in error, by the opinion delivered at the present term, in Searcy & Fearn vs Thompson, judge, &c., except that which relates to the insufficiency of the service of process upon the plaintiff. On the original process, the record informs us, were the following endorsements:

“ Service acknowledged, 15th August, 1836.
“ M. M. Rowan.”
“ Received, ,15th August, 1836.
“D. B. Turner, sheriff.”
And “ Service acknowledged by defendant.
“ D. B. Turner, sheriff.”

Whether the acknowledgment of service certified by the sheriff, be that to which the name of the plaintiff is subscribed, or whether it relate to some verbal acknowledgment made thereafter, we are not informed, but will intend it to have been made to the sheriff, at a time when the> writ was in his hands for service. The statute, in regard to the execution of original process, is as follows :

“ It shall not be necessary, that any declaration, or copy thereof, accompany such writ of process, but a copy of such writ shall be left with the defendant at the time of serving, and by the officer serving the same, &c.” — Aik. Dig. 278.

This act, it is argued for the plaintiff in error, excludes every other mode of executing original process that it expressly provides for, that it may be likened to the law which authorises a judge to take the acknowledgment or probate of deeds, and must be interpreted according to its letter. It is true, that this court decided that the statute upon the latter subject, did not authorise a court acting judicially, to take the acknowledgment of a deed, though its judge or clerk had authority, as an independent ministerial act, to take such acknowledgment—Munn & Griffin vs Lewis, (2 Porter’s R. 24.)

The analogy between that case and the one before us, in our opinion, will not hold good. In regard to the acknowledgment or probate of deeds, the judge and clerk derive their entire authority over the subject, from a legislative act, and according to a well settled rule applying to such cases, the mode which the statute prescribes for the execution of the power it confers, must be followed. But the sheriff is an officer known to the common law, possessing extensive authority, and held to a strict accountability for its abuse. He was required to execute process according to its mandate, — the same duty is enjoined on him here; unless the law has pointed' out a different manner of execution. This has been done in regard to the capias ad respondendum, (which is the original process usually employed with us,) though it directs the caption and detention of defendant’s body, yet it is regarded by the law, merely as a summons, unless by an endorsement thereon, bail is required. The object of the statute, in directing the sheriff to furnish the defendant with a copy of the writ, was doubtless to advise him of the complaint to which he was required to answer, and being intended for his benefit only, it was surely competent for him to dispense with it.

If the sheriff makes a false return, he is always liable to the action of the party aggrieved, and the difficulty of falsifying his return, would be no greater, where he returns “service acknowledged,” than where he returns “ executed, by leaving a copy with the defendant.” In either case, it would be great, unless it could be shewn that the defendant was not in the county at the time the process was in the sheriff’s hands.

Considering the common law powers possessed by a sheriff at the time the act we have cited, was enacted, the manner it provides for serving process does not, in our opinion, exclude every other mode of execution, as agreeable to the defendant, and as beneficial to the plaintiff. The return of the sheriff must be accredited, and the plaintiff in error be taken to have had due notice of the pendency of the action against him—Welch vs Walker, et ux, (4 Porter’s R. 120.)

The judgment is therefore affirmed.


source: Caselaw Access Project

author: COLLIER, C. J.

license: Public Domain

text:
    KENNON VS M’REA.
    1. The release of an endorser does not operate a discharge of any previous party to a promissory note; — every endorsement of a paper being a new and substantive contract, and the liability of each endorser, as it respects the holder, being separate and distinct from the others.
    2. It is competent for the holder of a paper endorsed in blank, to insert the name of an endorsee; and the striking out or alteration of an endorsement, does not divest the holder of his right to maintain an action, against any previous party to the note.
    3. If a promise or acknowledgment, to charge the endorser of a promissory noté, be made under a misapprehension of facts, to wit, under an impression that a demand had been made of the maker of a note, or that notice had been regularly sent through the post office, and the endorser promised payment or acknowledged his liability, — -the consequence of the laches is not waived.
    4. And such a promise or acknowledgment will entirely dispense with proof of presentment or notice, and will throw on defendant the double burthen of proving laches, and that he was ignorant of it.
    5. And such a promise must shew that the endorser assumes a liability, or admits it to be continuing: and if the promise be conditional, the performance of the terms of the condition must be proved, before the promise or acknowledgment becomes absolute.
    6. And it makes no difference that such a promise or acknowledgment is made .under a misapprehension of law.
    7. If a plaintiff shew a sufficient promise or acknowledgment, he cannot be deprived of its benefit because made after suit brought.
    8. And if such a promise or acknowledgment be made to the holder oí endorsed paper, any party to it who afterwards takes it up, may avail himself oí it, and maintain action against the party making it.
    9. The fact that a note was over due when negotiated, does not dispense with demand and notice.
    10. Facts that excuse a demand and notice, may be proved, under a declaration in the usual form.
    Error to the County court of Tuskaloosa county.
    Assumpsit on a promissory note by endorsee against an endorser! The bill of exceptions stated, that on the trial of the case, plaintiff submitted in evidence, a promissory note, of which the following is a copy, to wit;
    “ Ten days after date, I promise to pay Alexander Shaw, or bearer, the sum of 1575 00 dollars, for value received, this 4th May, 1825.

      “ Hannah Longmire.”
    On which note were the following endorsements:
    1. “ I endorse the within note to William Kennon, for value received, this 6th May, 1825.
    “ Alexander Shaw.”
    In which endorsement the words. “ to William Kennon,” were interlined in a different hand writing, and with different ink from the body of said endorsement.
    2. “ I assign the within note to E. Fuller, for value received. “ William Kennon.”
    3. “ I assign the within note to Kora Mcltea, without recourse. December 7, 1829. “ Ezekiel Fuller.”
    In the last endorsement, the Words “without recourse,” appeared with the mark of a pen run through them, as above.
    The plaintiff, then offered as a witness on his behalf, 033 Faekiel Fuller, one of the endorsers on said note as shewn above, lo pro re defendant’s liability, by reason of a promise to pay the contents of said note, notwithstanding an omission on the part of the holder to demand payment, and give notice of the refusal in due time,— to whom defendant objected; whereupon, the plaintiff released the said Fuller from liability to him, plaintiff, as on 'orser of said note, to plaintiff as aforesaid. The defendant still'objected to the witness, as incompetent to prove the promise as aforesaid, notwithstanding the release. But the court overruled the objection, and defendant excepted. ■ ' •
    The plaintiff proved by Fuller, that Kennon endorsed the note to Fuller, in the fall or winter 'of eighteen hundred and twenty-live, in consideration of a horse, sold by Fuller to Ksnnon’s son, and that Fuller traded the note to ZvicKea in eighteen hundred and twenty-six. In eighteen hundred and twenty-nine;- witness held a conversation with Kennon, and told him, that Mrs. Longmire, the makár, was about to fail, and recourse would be had against the endorsers, — when Kennon requested witness to inform Shaw, the other endorser, of the same. -That’ witness had another conversation with defendant after this suit was brought, when he, defendant, said he considered himself bound, and good for the' amount of the note, — and that afterwards, in another conversation with defendant, her. again. said, that he was good for the amount. Plaintiff also proved by one McMillan, that lie knew Mrs. Longmire for many years — that she had several slaves in her possession, — that she owed him a considerable sum of money which he was never able to collect. Defendant proved that at the time l:e endorsed the note, and at the time of Mrs. Longmire’s -death, she was in possession, and absolute owner of'suflleient property to pay the amount of said note. Defendant also proved by one Jones, that in the year eighteen hundred and twenty-five, he purchased a slave of said Mrs. l.ong-inirc, and afterwards loaned her money in eighteen hundred and twenty five or eighteen hundred and twenty-six, which she paid him. The foregoing comprehended all the evidence offered or introduced on said trial by cither party.
    The defendant moved the court for the following instructions to the jury, to wit: First, that the release of Fuller, the third endorser, by the plaintiff, operated a discharge of the liabihty of Kennon to McKea, and therefore plaintiff could not recover.
    Second — That if the jury believed from the evidence, that a material alteration was-made in the endorsement of Shaw, by the plaintiff, or by his authority, it operated a discharge of the defendant.
    Thirdly — That if the'jury helived a material alteration was made in the endorsement of Fuller to Mcllea, by the plaintiff, or by his authority, it invalidated that endorsement, and therefore plaintiff was not entitled to recover.
    Fourthly — That the endorsement of the note by Ken-non, being after the note became due, <&i«Lnot do away with, the necessity of a demand of payment of the maker, and notice of refusal to pay, to defendant, in order to fix his liability.
    Fifthly — That if the jury believed that defendant made any acknowledgments, from which they could infer a waiver of the want of demand of payment of the maker of the note, and notice of refusal to the defendant, but that such aeknowle Igments were made after the suit was commenced; that plaintiff on that ground was not entitled to recover.
    The court charged the jury, as to the first point made by defendant., that the release of Fuller, the third endorser, would not operate as a discharge of Kennon to Mcltca. As to the second and third points, the .court decided, that if there was a material alteration 'made in the endorsements by the plaintiff, it would be fatal but the facts were submitted to the jury, to decide whether there was a material alteration or not. The court charged the jury, on the fourth and fifth points, made by defendant, that as the parties all lived in the neighborhood, and knew the situation of the maker of the note, and as the assignment of the note was made some time after it was due, — a promise to pay the note either before or after the suit was brought, would bind the party. To all of which, defendant excepted.
    The plaintiff in error assigned as follows:
    1. That the court below should not have permitted the witness, Fuller, to testify:
    2. That the evidence offered, was not relevant to the cause of action laid in the declaration;
    3. That the court should have instructed the jury, as requested by defendant;
    4. That the court erred in instructing the jury as it did;
    5. That the court erred in rendering judgment, &c.

      Orabb, for plaintiff in error.

      Peck, contra.
   COLLIER, C. J.

— 1. The release of Fuller, the endor-ccr of the defendant in error, did not operate a discharge of any previous party to the note. Every endorsement of a paper is a new and substantive contract, and the liability of each endorser, as it respects the holder, is separate and distinct from the others. Hence, a prior endorser, who has paid a note, cannot call upon a suf sequent party for contribution, but can only look to those whose names are previous to his own. Fuller, then, being in r,o event liable to the plaintiff in error, it must be immaterial to the plaintiff, whether the defendant re'ease him or not. The cases of a release from a joint and several liability, or of a prior endorser, rest upon entirely different grounds, and consequently, do net conflict with the position we have laid down.

2. It is certainly the duty of the judge, to determine all questions of law which may arise in the progress of a trial, and if, instead of determining himself, a point raised, he refers it to the jury, it is error, — if the party complaining-, could be injured by such reference. Here, it is'true, the judge of the county court submitted it to the jury to decide whether there was a material alteration in two of the endorsements on the note, when ho should have determined the question of materiality himself, and'only have submitted it to them to ascertain whether the alteration was made. In regard to the first alteration alleged, to wit, the insertion of these words, “ to William Kennon,” in an endorsement originally as foi-lows: I endorse the within note, for value received ; .this 6th of May, 1825.” Signed — “ Alexander Shaw it can only be regarded as the filling up of a blank endorsement. And it is clearly competent for the holder of paper endorsed in blank, to insert the name of an endorsee—Snee vs Prescott, 1 Atk. 249; Ord vs Portal, 3 Camp. 240; Chitty on Bills, 134, 5, 6; Byles on Bills, 85, 6; Smith’s Mer. Law, 128; Bank of Utica vs Smith, 18 Johns. R. 230; Josselin vs Ames, 3 Mass. R. 274; Tyler vs Binney, 7 ibid, 479; Hungerford vs Thompson, Kirby’s R. 393; Snyder vs Satterlee, et al, Penn. R. 89; Lovell vs Everton, 11 Johns. R. 52; see also 1 Caine’s R.. 271. In respect to' the second alteration insisted on, in striking from Fuller’s endorsement to the defendant, the words without recourse,” whatever influence it may have upon the liability of Fuller, cannot divest the defendant of the right to maintain an action against any previous party to the note. While a material alteration would destroy the cndorsei’s undertaking to pay, yet as the endorsement shews that the legal title has been transferred, the endorsee stands in the place of his endorser, and may sue all persons who were chargable to him. Now, although the judge of the county court should have decided upon the legal effect of the alterations, the plaintiff cannot assign his refusal to do so, for error; because the alterations were perfectly unimportant., and consequently, the plaintiff could not have been prejudiced, but might be benefited ; as the charge could not have induced the jury to find against him, hut might cause them to And in his favor. But had the defendant have been unsuccessful below, it would have been competent for him to insist upon the refusal of the judge to instruct the jury, that the alterations were such as did not prejudice his right to recover; for the reason, that the jury, under the influence of such a charge as'was given, might have found their verdict against him.

3. The charge of the judge, upon the fourth and fifth ii stsuct.ons, asked for by the plaintiff in error, it is believed, dees not harmonise with the law. The charge is as follows: That' as the parties all lived in the neighborhood, and lenew the situation of the maker of the note, and the assignment was made sometime after the note was clue, that a promise to pay before or after the suit was brought, would bind the party, if the jury should believe from the evidence, the promise was made.” This direction, we think calculated to embarrass, and probably to mislead the jury, by assuming the contiguity of the residence of the parties to the paper to each other, and their acquaintance with the situation.of the maker of the note, and laying a stress on these facts, as exerting an influence over their rights. Cut we need not consider it in that light; .for it is dearly objectionable in combining both law and fai t, and thus forestalling the inquiries of the jury upon the evidence, instead of referring it to them (o ascertain the facts proved.

It is true, that the consequences of a neglect to make a demand of the maker or drawer of a note or bill, and give notice to an endorser or drawer, may be waived by the. person authorised to take advantage of it, by a promise to pay, or an acknowledgment of a liability to pay—Vaughan vs Fuller, 2 Strange, 1246; Horford vs Wilson, 1 Taunt. 12; Lundie vs Robertson, 7 East, 231; Brett vs Levett, 13 East, 213; Wood vs Brown, 1 Starkie, 217; Hopes vs Alder, 6 East, 16; Whitaker vs Morris, 1 Esp. N. P. 60; Rogers vs Stephens, 2 T. R. 713; Dixon vs Ellison, 5 C. & P. 437; Margetson vs Aitken, 3 C. & P. 333; Gibbon vs Coggon, 2 Camp. 188; Greenway vs Hindley, 4 Camp. 52; Hodge vs Fillis, 3 Camp. 463; Potter vs Rayworth, 13 East, 417; Wilks vs Jacks, Peake, 202; Walker vs Laverty, 6 Munf. R. 487; Hall vs Freeman, 2 Nott & McC. 479; Fortheringham vs Price’s ex’or, 1 Bay’s R. 291; Laurence vs Ralston, 3 Bibb’s P. 102; Ladd vs Kenney, 2 N. Hamp. R. 340; Hopkins vs Liswell, 12 Mass. R. 52; May vs Coffin, 4 Mass. R. 341; Duryee vs Dennison, 5 Johns. R. 248; Miller vs Hackley, 5 Johns. R. 375.

In Jones & Mann vs Savage, 6 Wend. R. 658, it. was determined, “ That a subsequent promise to pay is a waiver of the want of notice, in cases only where the promiso was made with a full knowledge of the fact, that due notice had not been given, and that knowledge is not to he inferred from the promise itself, but it must affirmatively appear, that the party knew be had not received regular notice; otherwise, the presumption'is, that the promise was made under a belief that regular notice was given, inasmuch as such notice need not be personal”-See also Trimble vs Thorn, 16 Johns. R. 154. This decision, not only holds it to be 'necessary for a plaintiff to prove the promise, but requires him to go farther, and shew that it was made under such circumstances as make it effectual in law. To that extent, wo think the case cannot be sustained. The rule, we understand to be this; If a promise or acknowledgment be made under a misapprehension of fact; as — if under an' impression, that a demand was made of the maker of a note, or that a notice was regularly sent through the post office, — an endorser promise payment or acknowledge his liability, the consequence of laches is not waived—Goodall vs Dolley, 1 T. R. 712; Blessard vs Hurst, 5 Burr’s R. 2672; Williams vs Bartholomew, 1 Bos. & Pul. 236; Stevens vs Lynch, 2 Camp. 333; and Pickin vs Graham, 1 Cr. & Mee. 728. But a promise or acknowledgment will entirely dispense with proof of presentment or notice, and will throw on the defendant the double burthen of proving laches, and that he was ignorant of it-Taylor vs Jones, 2 Camp. 105; Stevens vs Lynch, 12 East, 38; Nash vs Harrington, 1 Aik. R. 39. So, the promise or acknowledgment must be such as shews that the endorser assumes a liability, or admits it to bo continuing. If conditional, the performance of the terms of the condition must be proved, before the promise or acknowledgment becomes absolute—Dennis vs Morris, 3 Esp. N. P. 158; Cumming vs French, 2 Camp. 106, n.; Standage vs Creighton, 5 C. & P. 406; Bonodaile vs Lowe, 4 Taunt. 93. And it will make no difference that a promise or acknowledgment were made under a misapprehension of the law, for every man must be taken to know the law; otherwise, a premium is held out to ignorance, and there is no telling to what extent this excuso might be carried—Bilbie vs Lumley, 2 East, 469.

The fact, that the note was over-due when negotiated, did not dispense with a demand and notice. It is the duty of an endorsee to demand payment of the maker, within a reasonable time after the transfer to him of paper, ancl if refused, to give notice of non-payment to the endorser. The undertaking of the endorser is made upon these conditions, and unless they are performed, it cannot become absolute, so as to entitle the holder to his action against him; — and, in this respect, there is no difference between paper endorsed before, and after it is due—Ecfertvs De Coudres, 1 Rep. Cons. Ct. 69; Rugely vs Davidson, 2 Rep. Cons. Ct. 33; Poole vs Tolleson, 1 McC. R. 199; Course vs Shackleford, 2 Nott & McC. 283; Aldis, et al, vs Johnson, 1 Vermont R. 136; Dwight vs Emerson, 2 N. Hamp. R. 159; Bishop vs Dexter, 2 Conn. R. 419; Berry vs Robinson, 9 Johns. R. 121.

If the plaintiff show a sufficient promise or acknowledgment, he cannot be deprived of its benefit, because it may appear to have been made after suit brought; for the reason, that it is supposed the plaintiff had a good cause of action, of which the promise or acknowledgment furnishes but evidence; or if there was no cause of action, when it was commenced, the defendant, for proper reasons, has admitted it, by waiving his defence—Hopley vs Dufresne, 15 East R. 275.

Whether the facts that excuse demand and notice, can be proved under a declaration, in the usual form, against an endorser, has been sometimes questioned. But the practice of declaring, in such cases, with an occasional decision approving it, and maintaining the waiver to be equivalent to a demand and notice, in our opinion, affords sufficient authority to warrant the admission of these facts in evidence under such a declaration, without putting the plaintiff to declare specially upon the promise — ' See Smith’s Mer. Law, note m, 149; Norton vs Lewis, 2 Conn. R. 478.

It was not -objected in the County court, that a promise or acknowledgment made to Fuller, would not inure to the defendant in error ; yet, as it is possible the question may be made upon another trial, it may be proper to remark, that if a promise or acknowledgment is made to the holder of endorsed paper, — any party to it, who afterwards takes it up, may avail himself of such promise or acknowledgment, and maintain an action against the party making it—Potter vs Rayworth, 13 East, 417; Brahan & Atwood vs Ragland, et al, 3 Stew. R. 247. And this,upon the ground that by the payment of anote by an endorser, he is remitted to all the rights of the holder against the previous parties. So, the holder, it would seem, stands in the same situation as an endorser, and is entitled to the remedies upon the endorsements which he would have, were he to take up the paper.

Instead of stating the law to be, that a promise to pay would bind the plaintiff in error, the judge of the County court should have instructed the jury, that they must be satisfied, from the evidence, that he either promised to pay, or acknowledged that he was liable to pay the note endorsed by7 him, with a knowledge of the facts, as they really existed. The jury were authorised to determine from the circumstances under which the conversation took place between Fuller and the plaintiff, and the language employed, not only whether there was a promise, but whether it was made under a misapprehension of fact. But their inquiries were restricted to the promise alone, and a consideration of the circumstances under which it was made, entirely exclu-dai. In thus limiting the duty of the jury, the charge of the judge is erroneous. The judgment of the County court is consequently reversed, and the cause remanded.


author: GOLDTHWAITE, J.

text:
    NED, A SLAVE, VS THE STATE.
    1. It is good canso of challenge to a juror, that be has formed and expressed an opinion of tho innocence or gui’t of a prisoner, from conversations ho’d with juror®, who had been previously charged with the trial of the prisoner.
    2. Tiro Circuit, is prohibited from referring to the Supreme, court, any question of law arising in acrimina1, case, except it sha I be novel and diffbu’t, — Taerófora, no matter can be brought to tho view of the Supremo couil in such a case, by bill of exceptions;
    3. Nor can the decision of tho Circuit court bo reviewed on any point dehors the record.
    4. But the Supreme court will not beparticu’ar as to the form of roferoncoof mafrors for revision, if it clearly appear from tho record, that a reference was intended.
    5. It seems, that a bill of exceptions was unknown to tho common law, and that the right exists in civil cases, only by virtue of the statute.
    G. Whether the decision of tho Circuit court on a challenge, may not bo placed on the record, without a bill of exceptions, Qtierc.

      7. The discharge of a jury, for no better canse than that tho jury wore not agreed, is irregular, and unwarranted by law.

      8. Secus, where the jury nave been discharged, in conseqnor.co oí the expiration of the term of the eomt.
    P. It seems, that the provision of the dcc'arntion of rights, which provides that no person sha!!, for the same offence. Le twice put in jeopardy cf life or :iinb, is a very ancient maxim of the common law, but has never, in Erg and, been decided to extend further than to cases of acquittal and cornietion.
    10. Whether the provisions cf the declaration cf rights extends to slaves,— Quere.

    11. Where, by a reversal of judgment, the prisoner can be placed in the same position which ho occupied when the error was committed_it seems, it might be considered that his.life was never in danger, and that he might le subjected to a new trial: —aliter, where he ^annet be .placed in such position.

      12. The unwarrantable discharge .of a jury, after the evidence is closed, in a capita! case, is equivalent to a a acquittal.

    On a writ of error, awarded to the Circuit court of Clarke county..
    In this case, the plaintiff in error, as" the property of Mrs. Winifred W. Creagh, and her husb&od, Thomas B. Creagh, was indicted at the October term of the Cir-. cuit court of Clarke county, eighteen hundred and thirty-six, for the murder of Lorenzo Johnston, alias Renzy ■ Johnston.
    Wednesday, the thirteenth of October, having been set apart for his trial, the plaintiff in error appeared in his proper person, and having plead not guilty, declared himself ready for trial. The following extract from the record, shews the disposition of the case at that term:
    “ The jurors elected, tried and sworn, to speak the truth upon the traverse at issue, &c, on their oaths say, that they cannot, by Any reasonable probability, agree upon a verdict, — and the jury having been impanncled for forty-eight hours, and having been out considering of their verdict for about thirty-six hours, and it appearing to the satisfaction of the court, that they cannot agree: It is ordered by the court, that the said jury be discharged. It is further ordered by the court, that the prisoner be remanded to jail, for trial at the next term of the court.”
    At the Spring term of the court, eighteen hundred and thirty-seven, the court ordered the sheriff to summon fifteen lallsmen, to be and appear on Thursday, the twenty-third instant; which number, together with those in attendance on the original pannel, were for the trial of the prisoner. The plaintiff in error appeared, and a list of thirty-six jurors were furnished to him. The jury came into court by order of the presiding judge, a few minutes before mid-night, and declared in open court, that they could not agree upon a verdict. They were, therefore, because of the expiration of the term of the court, discharged'.
    At October term, eighteen hundred and thirty-seven, of the same court, Thursday was set apart for the trial of the prisoner, and the sheriff was directed to summon forty-seven good and lawful men, &c. and a list of tile same was furnised to the counsel for the prisoner, two entire days before the trial. On the trial, the jury returned a verdict of guilty, and his value was assessed at eight hundred dollars. The prisoner was sentenced to be executed on the last Friday in January, eighteen hundred and thirty-eight, and the case was brought to this court, on the following bill of exceptions:
    “ Be it remembered, -that on this day, to wit, on Thursday, the fourth day of the term aforesaid, this cause came on to be tried, and in cmpanncling the jury, one Richard Pace was sworn to answer questions, and being asked whether he had former! and expressed an- opinion of the guilt or innocence of the prisoner, answered he had; being further asked, whether that opinion was formed upon rumor, or a knowledge of the facts, he replied, that his opinion was formed by conversing with one of the jurors, who had previously tried the prisoner, to wit, at the last term of this court; whereupon, the counsel for the prisoner moved that the juror stand aside for cause, but the court would not sustain the motion, tut put the juror aforesaid upon the prisoner, to which the prisoner, by his counsel, exeepied. After this, Amos C. Wilson, James Cleveland anti Stephen Williamson, were in like manner sworn to answer questions, made like answers to Pace, and were severally put upon t,he prisoner, although exceptions were in like manner made. After the prisoner had exhausted his challenges, John Gillus and Archibald Campbell were called as jurors, and also sworn to answer questions, and answered they had formed and expressed opinions, which opinions were formed, by conversing with jurors who had tried the prisoner at the last term of this court: whereupon, the prisoner moved that said jurors be set aside for ■cause, but the court overruled the motion, and the said jurors were put upon the prisoner, and were sworn of the jury, to which the prisoner excepted, &c.
    “This is signed as a bill of exceptions strictly, and that the defendant may use, in case he has a right, to a writ uf error, which is suggested, but it is not intended as a reservation of points under the statute.”

      The following- was the assignment of errors:
    1. That no sufficient, caption or other entry, appeared in said record, shewing that an indictment was duly-preferred and found against the prisoner, or that he was ever arraigned for trial ;
    2. No entire list of the jury was served upon the prisoner below, as required by law, at any time, previous to said prisoner’s being put upon his trial;
    3. That two mistrials were awarded against the prisoner, and two several juries empanneled and sworn in said cause; were discharged by the court, without proper cause, and against the consent of the prisoner ;
    4. That the court erred, as slated in the bill of exceptions.
    ' For these, and other errors apparent In the record, the said plaintiff, by his counsel, prayed a reversal, and discharge of the prisoner.

      Porter, for the prisoner,
    argued —
    1. That the question, whether the prisoner could have the advantage of a bill of exceptions, depended not only upon a construction of our statutes relating to writs of error; but also upon the peculiar structure of that enactment, authorising .a bill of exceptions.
    This court .(Lyncs vs the State, 5 Porter, 236,) had determined, that a writ of error lien in a criminal case; and had drawn a distinction as to the manner by which, one should have the advantage of the writ. The court, in that case, ruled, that in criminal cases, the writ must issue from this court, ex gratia.

    The power, which this court possesses to control inferior jurisdictions, is derivable under the constitution, which authorises the Supreme court to issue such remedial and original writs, as may be necessary, to give it a general superintendence and control of inferior jurisdictions. — If this provision means any thing, it means that in all cases, all writs, necessary to this purpose, to wit, the control of an inferior jurisdiction, may be issued— Bell vs Payne, ct al, 2 Stew. 413. If the power thus defined had been left here, . this court, in exercising it, might well look to the common law, for the rules and regulations by which to give effect to the power. But the statute of eighteen hundred and fourteen, (Aik,in’s Digest, 237, s. 4,) which seems to have been intended to carry out the constitutional provision, prescribes that the Supreme court shall have power to issue forth writs of error, &c. to remove any judgment ■ or decree either at common law, or in chancery. This statute contains a remarkable clause, (remarkable, because bearing very directly upon the ex gratia power of issuing- writs in felony,) — to Wit, — -but no causo shall be removed until after final judgment, except the judge doubts; when he may respite final judgment, and refer the question to the Supreme court. '
    This statute, it appears to me, clearly establishes tho intention of the Legislature, to extend the principles of the common law, by giving a remedy controlling inferior jurisdictions before final judgment in a cause. And it is easy to account for this' innovation upon principles regulating the removal of cases from an inferior to a superior tribunal. Tho writ of error was a common law writ — It only lay, after final judgment, but to provide for cases of doubt in law, arising before final judgment, the law was enacted. Two distinctions are to be kept in view — 1. That the remedy bringing a case into this court, by a reservation of a question, when the judge below doubts, only arrests, or in the language of the statute, only respites judgment — while a writ of error or appeal, arrests or respites execution. And 2. That a statute, not the common law, is to be looked to, in this State, as the source of the writ of error — the first being looked to, for the grant of the writ, the latter for its form. If these distinctions are kept in view, it will, I think, be seen to follow, that the difference between ex gratia writs of error, and those, of course, depends entirely upon the grant of the writ, at common law: and, if so, the right to a bill of exceptions follows in the train of the same principle.
    . A bill of exceptions, is, in meet cases, an accompaniment of a writ of error -. for it can only bo used in error, and where error does not lie, a bill of exceptions cannot. —Buller’s N. P. 316; Phil. Svid. £15. For what would be the utility of a writ of error, except for mere errors of law, arising on the pleadings, if a party’s right to a bill of exceptions, by which he could only show error of the court, in rejecting testimony or otherwise, were restricted by the will of the judge ? Tfhere the necessity or benefit of our statute, enforcing a judge to sign and seal a bill of exceptions ?
    It is clear, then, to me, that a bill of exceptions, in a criminal case, must follow the issuance of a writ of error : and this latter, is a matter depending entirely, as I believe,upon the words of the statute, where one obtains, or, upon the common law, where there is none.
    At common law, a writ of error could only be brought, for error of law, apparent upon the record. Where, in such case, an objection was made, ore tarns, and overruled by the judge, no redress remained. To remedy this matter, the statute (13 Edward, 1, s. 31,) required the judges, where one was impleaded before them, and made exception, to sign it; and if one would not, another should.
    Now, this statute being the crigin of bills of exception, all power of signing them, and all rights under them, must have depended upon the construction of the statute. This construction, in reference to the allowance of a bill of exceptions in criminal cases, has never seriously received, so far as my research goes, the solemn adjudication of the English courts. It has been hinted at, made the dicta of judges, but as an abstract question, has not, I believe, had the deliberate action of the English judges. Lord Coke, in his definition of the statute of Edward, says, exceptions extend to all actions, real, personal and mixed: but he is silent as to criminal cases.
    The most early and prominent case, where the question was considered, and then, only as an incident, was Sir Harry Fane’s case, on a trial for Treason. There, the court refused to sign a bill of exceptions; and why, —because, say they, civil cases, between party and party, are only within the statute. It is upon this authority alone, I am prepared to say, that elementary writers, have set it down as law, that bills of exception are not allowable in criminal casca. r!awl: the authority of this case, that lulls tie w u eabou aim fc-ony — _._c: u. 1?. lit) 3 only infers, on of exception do not . C. B. 2, ch. 4G, s. 210.
    But Lord Hardwick says the point is not settled — Rex vs Inhab. Preston, Hop. Tem. Ilardw. 251.
    The fact, then, that a judie, in order to protect himself, under a refusal to sign exceptions in a cuse of treason, may have declared that the statute extended only to civil cases, is not stare decisis. Lord Hardwick, to be sure, says, (Rep. 251,) that it has never been determined, that exceptions did lay upon criminal causes, save in the Exchequer — but he does net soy, that it had been determined they absolutely did not.
    It occurs to me, that the judges who construed this statute, must have been guided in their construction, by the principles of the common law, respecting writs of error, —and as they saw that at common law, writs of error issued only ex gratia, in treason and felony, and of course, in civil eases; so, it would be inconsistent with this distinction, to allow exceptions, of right, in all cases, whether criminal or civil. This is the more apparent, from the fact, that the ex gratia power of the superior judges, to issue writs of error, would be nugatory, without the power of enforcing a bill of exceptions. To what end might the party, complaining of a most positive and tyranical breach of the law, take his writ of error, if the spreading upon the record the circumstances of the case, could be arbitrarily withheld ? Why, the writ of error would bo a mockery: and judges, shielding themselves behind tins power, might break down every projection, securing to the citizen the enjoyment of his liberty or his life. I am led, then, to the conclusion, that as the statute of Edward, was only extended by construction, to civil cases, — the signing of exceptions, in criminal cases, as was the issuance of writs of error, —was not, of course, but ex gratia: and the same power which might be exercised by the superior judges, to compel an attorney general to consent to the issuance of a writ, could compel the inferior court to sign and certify exceptions which might have been taken, — a power which was always exercised by mandamus.
    Now, 1 cannot be met by the assertion, that this matter has been adjudicated in the American courts, because the only cases of note, are those of the New York tribunals ; and it will be sufficient to remark in reference to these, that the statute of New York, respecting the signing of exceptions, is identically the English statute, in almost its very words. And I maintain that the conclusions to which I arrive, are sanctioned by the fact, that the New York courts, while they have decided that writs of error are graniablc only ex gratia in felony, have also decided, that mandamus will lay to compel the signing of a bill of exceptions. A decision which would never have been necessary, if in England and New York, statutes had, like ours, given a cumulative remedy, in eases where the judge might refuse to sign exceptions —2 John. C. 118; 1 Caine’s B. 521; 6 John. 279 ; 2 Caine’s R. 373. That such a statute in England or New York prevails, I cannot discover.
    Admitting, then, the English and New York statutes to extend only to civil cases, will this court cay, that our statute extends in like manner only to civil causes ? Can any reason be imagined why a judge could be forced to sign exceptions, where the sum of twenty dollars was at stake, and not where the life of the party was involved? Or what would be the use of this court extending Its grace in the issuance of a writ of error, when the same grace could not force a judge who had triedthe case, to certify the exception? Suppose a cruise to occur, where a packed jury had tried one, and the fact that this jury appeared on challenge to the array, to have expressed a determination to hang the prisoner,, and after conviction, the court should refuse to certify the exception, and refuse to suffer the answers of the jury to appear upon the record, or to reserve the point— can it be intimated, that in a case of this kind, the party would have no remedy ? Can it be possible that our law is so defective, that while around the liberty and life of the accused, the constitution has erected so many barriers and safeguards, — merely through a common law technicality, a man cannot, in the most important trial to which he can be subjected, have the revising adjudication of this court ? I cannot believe it. The necessity of the case alone, furnishes the best-argument that can be adduced, that the writ of error, by the statute of this State, whatever it might be at common law, is one of right, issuable of course; and that the exception on which alone it can, in most cases, be founded, must follow as an incident. Eut if this court should adhere to the opinion expressed in Lynes vs the State, that a writ of error is one allowable cx gralia, on application to this court — then, even the power to issue the writ, would be of no avail, if not followed by the power to bars the, exception certified, and the error placed upon the record : a power, whether enforced by mandamus or under the statute, to me dourly • IVwalde in either civil or criminal cases.
    We have seen that the reason why the statute of Fid-ward was enacted, was that if judges refused to allow an objection made ora ic/nis, there was no remedy. What mischief could accrue in civil cases, which could not obtain to a tenfold extent in criminal? Or could judges be allowed to reject law in a criminal case, which, in a plea of debt, might avail the defendant? It is said by some of the judges — if bills of exception were allowed in treason and felony, they would be taken upon every trial. This shews, that if taken at all. It should be upon the grace of the superior court, only where the merits of the case might require a writ of error.
    Any other construction of our statute, would make the reservation of a novel and difficult point, the only means by which a criminal could have tiro benefit of this court. Is this congenial to the spirit of our institutions ? Or does it carry out the beautiful provisions of the constitution ?
    It will be observed, that I do not attempt to test the correctness of my positions, by the common law rules, or by the construction of the English statute. The common law of England, — that venerated source of some of the most excellent provisions of our statute law, Las been only adopted in this country, so far as is consistent with the spirit of our institutions — and it seems to me, that it is inconsistent v/ith these institutions, to thus trommel la crinh.ml ec. wu n,j:a of fiscal. So far itts la.' ouitacc law oí .Angh ' = j. n\ cur ov/u State are concerned, I told there io a m.Ceñid distinction.
    2.In reference to the mistrials which have occurred in this case, I assume the positions—
    1. That a juror may be v/ithdrawa under some cirCa'moLcUiceo — os the illness oí a juror — of a witness — of the prisoner, — and, as ruled in Nugent’s case, in the event of the illness of the judge — 4 Stewart & Porter, 72; 3 Ld. Eaym. 21; II liar. Ct&ic Trials, 275; 4 Taunt. 309; 2 Leach C, 0. TOG ; lb. 0i8. Also to let the prisoner into a defence — Foster's C. L. 3!.
    2. Dut without the consent of the prisoner, it cannot he douo — i'osier's O. L. 17 ; lh. G!.; 2 Stra. 984, 985; Hawk. b. 2, c. 47, o. 1: Com. Dig. 701, indictment M. ; Foster's C. L. 30; 2 Dale, £34.
    3. The courts will never permit this consent to prejudice the prisoner — Foster’s C. L. 31.
    4. The test of the power of cum is to authorise the withdrawal of a irro" iVpouds ou the fait, whether it would o-jsnxte favorably, or 'r.viffercnlhj to the prisoner— wherever this does not appear, the effect of a mistrial, is an acquittal — 1 Chitty’s O. L. G31; 2 Caine's R. 304; 18 Johns. JR. 187.
    The Attorney General, for the State,
    made the following points:
    1, Court cannot lool: to bill of exceptions in this case.
    Or.r statute says, “ If. in the trial of any cause, either the 'plaintiff or defendant,” <fcc. — Alii. Dig. 254.
    The English statute says, “ Then one that is implea-ded before any of the justices, doth allege an exception,” &c. — See 1 Starkie’s Ev. 431. They are very similar. If there is any difference, our statute more manifestly relates to civil causes alone, than the English statute-13 Ed. 1.
    It has been repeatedly held, that the English statute does not allow a bill of exceptions, in a criminal case— .Sir H. Vane’s case, Eel. 15; Ld. Grey’s case, 1 Vernon, 175; Buffer’s N. P. 316; Willis, 538; Rex vs Barkshead, T. Raymond, 486; Chit. G. L. 623, margin; 1 Saunders’ PI. & Ev. 318; McNally’s Ev. 325, 329-
    The New York statute is precisely similar to the English. The doctrine appears to have been considered so well settled, that there are few cases touching the point. In People vs Holbrook, 13 John. R. the court treat it as a matter no longer open for argument; — on the force of the English decisions, I presume.
    That prisoner may be tried again, where the jury have been discharged by the court, after they cannot agree— See 2 Hale, 295; United States vs Goolidge, 2 Gall. 364; Com. vs Bowden, 9 Mass. 494; The People vs Godwin is a leading case, 18 John. Rep. 200, 207; — 9 Pickering, Com. vs Knapp, 515, the same thing was done apparently without objection. See also People vs Green, 13 Wendell, 55.
   GOLDTHWAITE, J.

— If the bill of exceptions, found in the record of this cause, can be considered by the court, it will be evident, when we recur to the decision of this court, in the case of the State vs Quesenberry, (3 Stewart & Porter, 308,) that the Circuit court ought to have sustained the prisoner’s challenge to the jurors. In the case cited, the juror stated that he derived the information on which his opinion was founded, from a man in whose veracity he had implicit confidence, who said he received his information from one of the witnesses: an opinion, formed on such information, and expressed, was determined by this court, a cause ^sufficient to exclude a juror, if challenged. In this case: the juror challenged, had formed his opinion from conversations held with a juror, who had been empanneled on one of the juries, previously charged with the trial of the prisoner ; the information was consequently derived through the medium of witnesses, and the only distinction between the grade of information, is, that in the one case, the witnesses were sworn; in the other, they were not.

But the prisoner, can derive no benefit, before this court, from this opinion ; because we have no authority to review the decision of the Circuit court, or any point dehors the record; and no matter can be brought to our view by a bill of exceptions. The general assembly has prohibited the Circuit courts, from referring to the Supreme court, any question of law, arising in a criminal case, except it shall be novel and difficult — Aik. Dig. 257. The statute does not prescribe the manner in which a reference shall be made; but in the case of the State vs Prince, (3 Stewart & Porter, 253,) it was held, that this court ought not to be particular as to the mode, if it clearly appear by the record, that a reference was intended. The contrary, is made directly to appear, as\ the judge states, in the exception, that he has signed it as a bill of exceptions, and does not intend it as a reservation of points under the statute. It is clear, that a bill of exceptions was unknown to the common law, and it is alone by virtue of the statute, that the right exists in civil cases. Our statute is not materially different from the English act of parliament, or from the statutes of our sister States, and it is unnecessary to go into an examination of a question which has so often been settled—Rex vs Sir HarryVane (1 Levins, 68;) Rex vs Inhabitants of Preston, (cases Temp. Hard. 251, S. C.) 2 Strange, 1040; Bacon's Ab. vol. 1, 528; 2 Hawk. P. C. ch. 46, s. 128; United States vs Gibert, et al, (2 Sumner,) 19; People vs Holbrook, (13 John. R. 90.)

We must not, however, he understood as deciding, that the decision of the Circuit court, on a challenge, may not be places! on the record, without a hill of exceptions. £g is stated in Bacon's Abr. 766, that if a challenge is demurred to and overruled, it is entered on the original record: and if at nisi prius, it appears on the postea what the judge has done. Whether this method is the proper course to he pursued, is not a question now before us. A very important subject of consideration is presented by those assignments of error, which question the existence of any authority in the Circuit court to discharge a jury under the circumstances disclosed hy this record. If the discharge of either jury was irregular, and not warranted by law, we are then called on to declare what are the consequences which must ensue, so far as the prisoner is concerned.

( The ancient authorities on criminal law, announce the general rule, “ that a jury once sworn and charged in a case affecting life or member, cannot he discharged without giving a verdict.” f

( Lord Coke says, in his third institute, (pp. 110,) “ To speak it here, once for all, if any person be indicted of treason, or of felony or larceny, and plead not guilty, and thereupon a jury is returned and sworn, their verdict must he heard, and they cannot he discharged.” Again, in the first institute, (pp. 227, h.) he observes, “ a jury sworñ and charged in case of life or member, cannot be discharged by the court or any other, but they ought to give a verdict.

In Ero. Abr. (tit. verdict pi. 49,) it is said, “ a verdict de Xi ou le xii, ne vdpi agree esi void verdict: et per curiam, les justices duissot aver eux carry in carles eve eux icmq. ils sera agree”

In Rex vs Ledingham, (1 Tent. 97,) it was determined, “ that in cases of life and member, if the jury cannot agree before the judges depart, they are to be carried in carts after them, so they may give their verdict out of the county.” / The rule, as stated by Lord Coke, has frequently been questioned by the English courts, on account of its apparent exclusion of cases of consent and necessity ; but its soundness, as a general rule, has always been admitted by them. Many exceptions have been established by adjudication, some of which will he hereafter noticed. ^ Hawkins, whose excellence as a compiler, has never been questioned, says, “ it seems to have# been anciently an uncontrovcrted rule, and hath bcenf allowed even by those of a contrary opinion, to have been the general tradition of the law, that a jury once sworn and charged in a capital case, cannot be discharged (without the prisoner’s consent,) till they have given a verdict. And notwithstanding some authorities to the contrary, in the reign of King Charles the Second, this hath been holden for clear law, both in the reign of King James the Second, and since the revolution — 2 Hawk. P. C. ch. 47, s. 1. At a much later period, and. when we might reasonably suppose this subject must have been repeatedly discussed and settled by the courts, we find Blackstone thus stating the rule: £ When the evidence on both sides is closed, and indeed when any evidence hath been given, the fury cannot be discharged (unless in cases of evident necessity,) till they have given in their verdict” — 4 Black. Com. 360. J

Lord Hale does not state any general rule, but he adverts to the custom of carrying juries who did not agree, around the circuit, and says, this must be done—(2 Hale’s P. C. 297.) A practice wholly inconsistent with the' existence of a discretionary power to discharge a jury. We are not to suppose that jurors were transported from county to county in a cart, as a mark of -ignominy and disgrace, or as a punishment for their contumacy in refusing to agree, it is highly inconsistent, to imagine that a people, who, under all changes of government, during a period of near one thousand years of authentic history, have clung to the trial by jury, as the great ( means of preserving their liberties ijrom the oppression of those in power, would ever acgui-s^íTin a practice, well calculated to bring the institution itself into contempt ; but, on the contrary, we are, I think, compelled to arrive at the conclusión, that this custom arose from a jealous regard for the- preservation of the right of trial by jury ; and from'a defect of power in the courts to abridge this right, or to lay down any new rules as to its exercise. The custom, as •well as the reason of it, is adverted to in a late case by Mr. Justice Gaselee, and stated in a note by the reporter—Morris vs Davies, et ux, (3 Carr. & Payne, 427.) On the English circuits, the judges have but one commission of assize, and of oyer and terminer, for the whole circuit, although their commission of goal delivery, is special, for each county. The jurisdiction, therefore, of the judges, as a court of trial, only terminates with the circuit. As the court has no power to discharge the jury, and as its functions cease at the end of the circuit, the jury are kept in attendance, and when the judges depart from the bounds of the last county, the duties of the jury necessarily end with the existence of the court to which it is attached.

As none of the elementary writers, before quoted, have given any reasons for the existence of the rule stated by them, many subsequent judges have supposed it to be a mere tradition of the common law, having no adjudicated case to support it. That this idea is unfounded, the case of Rex vs Ledingham, (the case cited from Bro. Ab.) and the concurrent testimony of Lord Hale and Blackstone, tend to show—(2 Hale’s P. C. 297; 3 Black. Com. 376.) Lord Hale cites two adjudications in support of his text—19 Assiz. 6, and 41 Assiz. 11.

It is scarcely possible, that in the course of the centu— ries, during which the trial by jury has been preserved g in England, that cases should not have occurred, in which juries have not agreed; yet we no where find any cases, except those in the reign of Charles the Second, in which judges have claimed the discretionary power to discharge juries. If we examine the cases, we shall fitid, that so far from claiming this power, it is in all, except those before stated, expressly, or by implication, denied. MansePs case, reported in 1 Anderson, 103, is not before us, but from the statement of it by Mr. Justice Foster — (Foster, 31,) — 1 info;;, that some verdict which the court ought to have received, was, in point of fact, agreed on by the jury; and that they would agree on no other: this being the case, the judges induced the prisoner, who, according to the custom of the times, was unaided by counsel, to agree, that a juror might be withdrawn, and with his consent, thus induced, a mistrial was ordered. Mr. Justice Foster reprobates this conduct of the judges, saying, the jury not being agreed on any verdict at ail, nothing remained to be done by the court, but to send them hack, and to keep them until they should agree to such, a verdict as the court could have received and recorded, if the want of agreement on a verdict, furnished of itself, a sufficient reason to discharge the jury, why was the consent of the prisoner required, and why 'does the case call for the reprobation heaped on it by the eminent judge, whose opinion I have just quoted? In the cases of Whitehread and Fen week, (the two which occurred in the reign of Charles the Second.) juries were discharged after evidence given and closed ; because it was not sufficient to convict, and in order that the crown might be better prepared on another trial. These cases are never mentioned but to be reprobated, and nearly ail the judges of England condemned them as cruel and illegal, and Mr. Justice Foster hopes they may never be drawn into example, y I am free to confess, that I can perceive no sound distinction, between a dis-crctic.n exercised, in discharging a, jury after the evidence is hueve!, and the same diseroiicn exercised because a jury cannot agree. In both canoe, the; .uy is discharged, because the evidence is not sufficient to convict; bat, in the one cere, the opinion :.e loaned by the judge, and on the other, by a portion of the jury. The result to the prisoner is the same, in each case: he is tried again, and the State may be better prepared on the second trial. In the case of the Iiinloch’s, (Foster, 17 to 40,) the whole subject underwent the deliberate consideration of ten of the Knglish. judges: it was made a question in this case, whether a prisoner could consent to a discharge of a jury, even when he was thereby let in to claim an advantage, which he might otherwise have lost; and it was determined by nine judges against one, that he could. I understand all the judges; as admitting the general rule to be a good one, which is laid down by Lord Coke, but that it is not universally binding; nor is it easy to lay down, any rule which will be so. Foster says ‘ the general question’ (touching the power of the court to discharge jurors sworn and charged in capital cases,) ‘ is a point of great difficulty, and of mighty importance, and I take it to be one of those questions, which are not capable of being determined by any general rule, that hath hitherto been laid down, or possibly ever may be.’ And again, after stating many cases in which the rule has no application, he says: ‘These instances, therefore, must be considered as so many exceptions to the general rule; though I confess, they do not come up to the case of discharging one Jury., and bringing the prisoner to his trial by another.’ And again: “ Upon the whole, my opinion is, that all general rules, touching the administration of justice, must he so understood, as to he made consistent ■with the fundamental principles of justice: and consequently, all cases, where a strict adherence to the rule would clash with fundamental principles, are to he considered as so many exceptions to it.”

The cases of exceptions are principally the following. Where a juror wilfully departed from the jury, and went out of town — 2 Hale, 297 : Where the prisoner was suddenly taken ill, and ohUccd to be removed from the presence of the court—Meadow’s case, (Foster, 76;) Streek’s case, (2 Carr. & Payne, 413;) Stevenson’s case, (Leach C. C. 618:) Where one of the jurors was suddenly taken ill, so as to he unable to proceed in the hearing of the case; Rex vs Edwards, (4 Taunt. 309;) Salcbert’s case, (Leach C. C. 706;) Rex vs Edwards, (Russ. & R. C. C. R. 224;) (1 Hale P. C. 35.) Another class of exceptions may also he noticed, without our being understood as assenting or dissenting to their principles. These are those where a jury has been discharged, in order to the preferring a new indictment, better suited to the nature of the case; where, through the ignorance or collusion of the officer, or the mistake of the prosecutor, the fact laid differs from the real fact, or comes short of it in point of guilt—(Kelynge, 26, 52; Comb, 401:) or, where undue practices appear to have been used to keep material witnesses out of the way —(1 Vent. 69; 2 Hale, 295:) or, where the jurors have been tampered with—)Hillary T. Henry 7, Rel. 3, cited Foster, 27; Salk. 646.) The only English authority in which (so far as I can ascertain) the power is claimed for a court to discharge a jury, because they cannot or will not agree, is the Doctor and Student — Dial. 2 ch. s. 2: where it is asserted, “ that if the jury will not agree, the justices may take such order as may seem to them, in their discretion, to stand with reason and conscience, by awarding a new inquest or otherwise, as they shall think best — like as they may do, if one of the jurors die before verdict.” This is entirely an approved authority, but not more so than Lord Coke, Mr. Justice Blackstone, or Sergeant Hawkins; and the opinion of St.G-srmain cannot prevail against those names,supported, as they are, by the decisions adverted to.

Such are the English authorities; and they seem, in the main, consistent with each other; but when we come to an examination of the American cases, we find them so variant, and, in some cases, contradictory, that we are at a loss to deduce any general rule from them. In the United States vs Coolidge, (2 Gallison, 364,) a witness refused to be sworn, and Judge Story held, that courts possessed the discretionary power to discharge juries, whenever, in their opinion, the demands of justice required it. This opinion seems to be founded on an impression, that it was so ruled in Kinlock’s case, though I think the extract before given, of Foster’s judgment, shows that no such idea was entertained by the judges who determined it.

In the United States vs Perez, (9 Wheat. 579,) the same doctrine is held by the Supreme court of the United States, but they do not enter into an examination of the question.

In the People vs Olcott, (2 John. Cases, 301,) Chancellor Kent goes into a very full investigation of the subject, and arrives at the conclusion, that courts have the power to discharge juries, whenever, in their discretion, they think it becomes necessary for the advancement of justice; and that an exercise of this discretion ought not to be revised, (in that particular case,) where a jury was discharged because they could not agree. This eminent jurist, after reviewing most of the authorities and cases before quoted, mainly founds his opinion, that there is no alternative between a denial of the power in all cases whatever, and ait unlimited discretion, — on the reason,that whenever the exception of necessity, is once admitted, the court must necessarily judge the fact, and ascertain if it exists, and thus the matter is, in all cases, made an exercise of discretion.

Now, it seems to me, that such a conclusion does not properly follow. The judge must determine the existence of the facts, but when they are ascertained, the law determines whether they constitute a case of necessity. Thus, the judge ascertains the death or sudden illness of a juror, — the law pronounces this a case of necessity, that the jury shall be discharged. The court ascertains and determines that the evidence is not sufficient to convict — It even goes further: it ascertains the existence of other testimony, which, if adduced, would, or ought to convict — The law determines, that this cause is not sufficient to discharge a jury, and thus place the prisoner in jeopardy a second time. Again, the existence of cases, in which the jury must be discharged, as the death of a juror or the judge, shows, that power is not always discretionary.

The Supreme court of New’York, in the case of the People vs Barrett & Ward, (2 Caine’s, 305,) determined that a court did not possess the authority to discharge a jury, for want of sufficient evidence to convict, although such evidence was shown to o/dst, an.’ to be in the possession of the defendants, and ,he judgment was arrested, because the first jury had been irregularly discharged.

In the subsequent case of the People vs Goodwin, (18 John. 187,) Chief Justice Gpencer quotes this decision with approbation, and thus states his conclusion, as to the power of the courts: “ Upon full consideration, I am of opinion, that although the power o" discharging a jury, is a delicate and highly important trust, yet, that it does exist in cases of extreme and absolute necessity, and that it may be exercised without operating as an acquittal of the defendant: that it extends as well to felonies as to cases of misdemeanors, and. may discreetly be exercised in cases, where a jury, from the length of time they have been considering a cause, and their inahiiity to agree, may be fairly presumed as never likely to agree, unless compelled so to do from the pressing calls of famine or bodily exhaustion. And, in the present case, considering the great length of time the jury had been out, that the period for which the court could legally sit, was nearly terminated, and that it was morally certain, that the jury could not agree, before the court must adjourn, I think the exercise of the power was discreet and legal.”

It should he noticed, that in this case, the jury declared only half an hour before the expiration of the term of the court, that there was not the least possibility of their agreeing. Whether this was sufficient to induce the con-elusion, that a moral certainty existed, that within that time they would not agree, is a point which we will not determine; hut in all similar cases, it would certainly he better to continue to the last moment, than to present a question exceedingly difficult of solution in principle. If we were disposed to acquiesce in the general correctness of the rule, as declared in the People vs Goodwin, we should yet be behind the New York decisions, — as in the late case of the People vs Green, (13 Wend. 55,) the court overleaped all barriers, and decided that the discharge of a jury is, in all cases, a matter of discretion with the judge trying the cause, and that its exercise cannot be reviewed.

In Pennsylvania—Commonwealth vs Cook, (6 Serg. & Rawl. 577,) it was decided, after great consideration, and a review of all the cases, ancient and modern, that a jury could not be discharged because they were unable to agree. And, in North Carolina, the doctrine has been carried to the extent of declaring, that when the jury did not agree within the time during which the court was authorised to continue, that the omission to return a verdict, was equivalent to an acquittal, and that the prisoner was entitled to be discharged, as he could never be legally tried by another jury—Ex parte Spear, (1 Dever. 491;) the State vs Garriques, (2 Hayw. 241.)

Although the American cases are thus variant, their attentive examination will aid very much in arriving at the true understanding of the subject, as it is very thoroughly discussed in many of them, and we cannot arise from the perusal of them, without being satisfied that each decision has much appearance of reason to support it, however adverse it may he to others, The prominent reason which has led to the adoption of the discretionary rule, seems to he the certainty that jurors will not always agree, and the apparent inconsistency of forcing them to agree hy hodily exhaustion and confinement. This is assuming what should he proved. In no case ought a juror ever to be forced to any opinion whatever ; hut how can it he ascertained that they will never agree? Men may, and do frequently, honestly differ in opinion, and think that they shall ever continue thus to differ; yet experience demonstrates, that conviction often takes place, when the subject or the facts are again examined. The law declares, that every one shall he entitled to the benefit of a trial hy jury, and as long as they continue in health, and capable of reasoning on his case, he is entitled to the exercise of these powers. Whenever from exhaustion or any other cause, a juror becomes unable to exercise these functions, and the fact is shown to the court to he such as much continue, then, a case of necessity has occurred, and the jury ought to he discharged.

As we are, in a great degree,1 thrown back on the English cases and authorities, for the determination of this case, I think we may deduce from them, certain general positions, which seem to he fully sustained.

1. That courts have not, in capital cases, a discretionary authority to discharge a jury, after evidence given;

2. That a jury is, ipso facto, discharged, hy the termination of the authority of the court to which it is attached ;

3. That a court does possess the power to discharge a jury, In any case of pressing necessity, and should exercise it whenever such a case is made to appear ;

4. That sudden illness of a juror, or of the prisoner, so that the trial cannot proceed, are ascertained cases of necessity, and that many others exist, which can only he defined when partiular cases arise;

5. That a court does not possess the power, in a eap-ital case, to discharge a jury, because it cannot, or will not agree.

When we test, by these rules, the proceeding had in this case, we find that the discharge of the first jury, having been for no other cause than the jury were not agreed, we are compelled to say it was irregular, and unwarranted 'by law : the second jury having been discharged in consequence of the expiration of the term, was, in itself, regular.

The effect, of this irregularity, only remains to be considered. It is not very important, at this time, to determine the meaning which is to be given to the thirteenth section of the declaration of rights, which provides that no person shall, for the same offence, be twice put in jeopardy of life or limb, as it is clear that such is the unquestionable doctrine of the common law; and we certainly have no statute which has introduced a different rule, as to the trials of that class of individuals, to which the prisoner belongs. It has been made a question, whether any of the provisions of the declaration of rights extends to slaves; therefore, it is desirable that this case shall be decided independent of the constitutional question, unless the same is necessarily involved.

Judge Story, in the case of the United States vs Gibert, et al, (2 Sumner, 19,) had occasion to examine a similar provision in the constitution of the United States, and found the authorities clear to sustain his view, that the privilege thus secured, is nothing more than a constitutional recognition of a very ancient and well established maxim of the common law. But notwithstanding the existence of this maxim, it has never, in England, been decided to extend further than the cases of acquittal and conviction.

In those cases, in which judgment has been arrested for any defect in the indictment, or if an acquittal has been had on an insufficient indictment—Staundford P. C. lib 2,106—Lord Hale and Sergeant Hawkins recognizes the same doctrine, which is thus stated by the latter: “ I take it to be settled at this day, that wherever the indictment or appeal, whereon a man is acquitted, is so far erroneous (either for want of substance in setting out the crime, or of authority in the judge before whom it was taken,) that no good judgment could have been given on it against the defendant, — the acquittal can be no bar of a subsequent indictment or appeal; because in judgment in law, the defendant was never in danger of his life from the first; for the law will presume, •prim,a facie, that the judges would not have given a judgment which would have been liable to have been reversed. But if there be no error in the indictment or appeal, but only in the process, it seems agreed that the acquittal will be a good bar of a subsequent prosecution, notwithstanding such error ; the best reason for which seems to be this, that such error has been solved by process”—2 Hawk. ch. 35, s. 8; 2 Hale’s P. C. 181, 220, 249, 250.

In accordance with this doctrine, this court refused to discharge a prisoner, oil reversing the judgment of the Circuit court for an error committed in empanneling the jury ; though it was urged that this was extending the rule beyond any previous case—The State vs Coleman Williams, (3 Stew. 454.)

If by a reversal of the judgment, the prisoner could be placed in the same position which he occupied when the error was committed, we might say, in accordance with the adjudicated cases, that his life had never been at hazard; but in the present case, we never can return the prisoner to that stage of the case, at which the error intervened.

We cannot judicially know how many jurors were convinced, that he was innocent of the crime charged; nor can we know, but that an acquittal might have been had, if the jury had not been retained. On principle, then, it seems clear, that we cannot place the prisoner in a worse situation than he was, when the error was committed ; and as it is certain that some of the jurors were not convinced of his guilt, when they were discharged, and as this may never be the result of another trial, it follows, that the unwarranted discharge of the jury after evidence closed in a capital case, is equivalent to an acquittal. Such was expressly admitted by Chief Justice Spencer, to be the effect of an unauthorised discharged—People vs Goodwin, (18 John. 187;)and was so declared in the Commonwealth vs Cook, (6 Serg. & Rawle, 577;) and the State vs Garriquez, (1 Hayw. 241.)

Such must have been the opinion also of the English judges, who sat in the case of the Kinlock’s, (Foster, 17 to 40,) as they entertained the motion in arrest of judgment, a matter which would not have been permitted, unless the position, if sustained, would have effected the discharge of the prisoners.

We may also claim the support of Judge Story, who has carried the rule so far as to deny the authority of a court to grant a new (rial, in a capital case, at the request of the prisoner. Without yielding our acqu escence to this extension of the rule, we may say, it is clear, from his exposition of the cases, that an unauthorised discharge of a jury is equally fatal, to any subsequent trial, as an acquittal or conviction.

Our conclusion is, that the judgment of the Circuit court must be reversed, and the prisoner discharged.

[The writ of error in this case was applied for and awarded, at January term, 1S38, but the Anal decision upon the merits, was not made until June term following. — Not being in possession of the opinion until January, 183!), the case has been, casually, inserted in an earlier part of this volume, than was strictly proper.]

The Reporter.