E. Edgar Galbreth, for plaintiff in error. John R. Large, for defendant in error.

GORDON, J. This was an action of ejectment brought by Adeline Clark, plaintiff below, against James H. Bell and Mrs. L. Coulter, defendants.

The plaintiff's title is founded on certain articles of agreement, dated July 1, 1870, by which the said James H. Bell covenanted, on payment of the sum of $732.48, within two years from the date of the said agreement, to convey by a good and sufficient deed, to Adeline Clark, the premises therein described, and in the meantime she was to have the possession thereof.

This possession she seems to have maintained, by her tenants, until about four years before the bringing of this suit. Whether she received any rent is doubtful, certain it is she paid no purchase-money, nor, so far as we can gather from the evidence, did she provide for the taxes, insurance, or repairs, all these were paid by Bell.

Thus matters stood until about five years ago, when the defendant finding the premises vacant rented them to Mrs. Coulter, who has continued to occupy them until this present time. Under these circumstances, it cannot be said that in thus resuming dominion over the property the vendor was guilty of either a fraudulent or unlawful act. Some eight years after the purchase-money was due, he quietly, and without protest or obstruction on part of the plaintiff, re-possessed himself of those premises, and now, some twelve years after the time when she, the plaintiff, covenanted to pay that purchase-money, and without either payment or tender thereof, she brings this her action of ejectment, and is allowed in the court below to recover an unconditional verdict against her vendor.

This was altogether inequitable, and should not have been permitted. Had the defendant obtained possession by force or fraud, doubtless, as was held in D'Arras v. Keyser, 26 Penn. St. 249, Mrs. Clark might have recovered in ejectment, and that without a tender of the purchasemoney. But as the case stands, the doctrine stated does not apply. Bell having, in a peaceable manner, assumed possession of the property when neglected, and apparently abandoned by his vendee, had a right to retain that possession until a tender was made of the purchasemoney with its accrued interest. The principle here stated is an equitable one, and was adopted by this court as early as the case of Minsker v. Morrison, 2 Yeates, 344, and has been steadily adhered to through Gore v. Kinney, 10 Watts, 139, and many other cases, down to the present time. The rule may be stated thus: Where the possession of the vendor is lawful, his vendee cannot maintain ejectment against him without proof of a previous tender of the purchase-money, and he must also maintain that tender by producing that money in court. Until he has thus put his vendor in default, he has no cause of action, nor can he demand a verdict conditioned on his subsequent payment of the purchase-money, for that would enable him, by a refusal to comply with such verdict, to harass the owner of the legal title to no purpose, and to escape the result of his own experiment.

We do not by this mean to say that there are not cases of the kind mentioned, where a conditional verdict may be had, because equity does not willingly adopt unbending rules, and circumstances may make such a verdict necessary in order properly to adjust the rights of the parties.

The case in hand, however, does not seem to us to be one of this character.

The purchase-money is all due and unpaid, and even the rent received by the vendor seems to have been consumed by taxes and repairs; as a consequence he cannot be called upon to account for such rent as an offset against any part of the purchase-money, hence, she is not entitled to a verdict of any kind.

The judgment is reversed.

HILANDS v. COMMONWEALTH.

January 4, 1886.

CRIMINAL LAW-FORMER JEOPARDY-COURT ALLOWING JURY TO SEPARATE-COURT DISCHARGING JUDGES OF LAW AND FACTS.

The

A prisoner was indicted for murder. After the jury had been impaneled and sworn, the court, with the consent of the Commonwealth and also the prisoner, permitted them to separate; upon the following day, the court without the consent of the prisoner, and because it believed the permitting of the jury to separate was irregular, discharged the jury and ordered the calling of another. prisoner objected to the selecting of a second jury, and pleaded former jeopardy, which plea was not sustained, aud the trial was proceeded with; the prisoner was convicted of murder in the first degree. Held, that as the discharging of the jury was not under such extreme and overwhelming necessity as to subject the prisoner to be again put in jeopardy of his life for the same offense, therefore it was error in not sustaining the plea of former jeopardy.

The step in a prosecution at which a person is put in jeopardy, to which he shall not be subjected a second time for the same offense, begins as soon as the jurors are duly impaneled and sworn. *

* See 21 Am. Dec. 505-508; 33 id. 96; 14 Am. Rep. 748 note; 13 North Western Rep. 633; 4 Crim. Law Mag. 487; 17 Am. L. Rev. (N. S.) 735.

If a juror has fraudulently procured himself to be put on the jury, to acquit the prisoner of murder, the judge may direct the withdrawal of a juror, even if the pris oner was innocent of the fraud, and this constitutes no jeopardy. State v. 45 Am. Rep. 700; S. C., 89 N. C. 535.

Washington,

On the trial of several jointly indicted for assault and battery, they pleaded that on a former trial the judge discharged the jury pending the trial, without defendant's consent, because one of the jurors was discovered to be a surety upon recognizance in the cause entered into by one of the defendants before the trial. Held, bad. monwealth v. McCormick, 29 Am. Rep. 423; S. C., 130 Mass. 61.

Com

The discharge of a jury in a criminal case, after the commencement of the trial, on account of the sickness of one of the jurors, does not avail the prisoner as a de fense on a subsequent trial on the same indictment, although under a statute the presiding judge was authorized to summon another juror in the place of the one so discharged and commence the trial anew, and being requested by the prisoner's counsel, refused so to do. Mixon v. State, 28 Am. Rep. 695; S. C., 55 Ala. 129.

Where it is discovered, after the commencement of a trial, that the prisoner has not been arraigned nor asked to plead to the indictment, and thereupon he is ar raigned and pleads not guilty, and he objecting to further proceedings on the indict ment, the jury is discharged, such partial trial does not constitute legal jeopardy, empting him from the further prosecution of the same indictment.

er.

It seems that if, after he had been arraigned and pleaded to a valid indictment, a witness had been sworn and given evidence, and then, without his consent, a juror had been withdrawn or the jury discharged, it would have constituted legal jeopardy. King v. People, 5 Hun, 297.

In charges of murder the jury are not only the judges of the facts but also of the law, and should they find the prisoner not guilty, although in clear mistake of the law, no court can review the correctness of that verdict and again put him in jeopardy for the same offense.

Error to the court of oyer and terminer of Mercer county.

Hilands was indicted for murder, pleading, when arraigned, "not guilty." A jury was impaneled and sworn and the prisoner was placed in their charge. As it was a late hour in the evening one of the jurors asked the court's permission to go home for the night, a member of his family being ill. The court asked if there was any objection to the separation of the jury "until the meeting of the court in the morning, the case not having being opened before them." Counsel for the prisoner said: "I suppose that is one of the safeguards which the law has thrown around the defendant, but we will waive that. It would be a hardship for this jury, in case they have to be out another night, to be compelled to go out to-night." The district attorney said: "We have no objection." The court then said: "Gentlemen, we will allow you to disperse and go to your respective homes or boarding places. You will come, however, to-morrow morning at nine o'clock with the expectation of remaining together until after your duty shall have been ended." On the following morning the court said: "Gentlemen of the jury, I discover that it was irregular to allow you to separate last night, although the case was not opened before you. It was an irregularity to which the defendant is not permitted under the law to consent. I will, therefore, have to ask you to withdraw from the jury," and to counsel: "You will have to select a jury anew;" to the jury: "You will withdraw from the jury-box, but you will not leave the courtroom." Before the new jury was entirely called the following plea was presented to the court in writing: March 13, 1885. A jury having been selected and sworn in this case and having been discharged without the consent of the defendant, the defendant objects to the selection of another jury and pleads former jeopardy." Upon which the court made this order: "March 13, 1885. This plea pre

sented. The questions raised by it have been occasioned by the discharge of the jury on account of a separation of its members with consent of defendant and Commonwealth. The defendant cannot on that account plead former jeopardy, and, therefore, this plea is not sustained."

When eleven jurors had been selected the prisoner's counsel offered the following in writing: "A jury having been selected and sworn in this case and discharged without the consent of the defendant, the defendant objects to his trial by another jury selected from the same panel. And secondly, the defendant objects to his trial by a jury composed in part of the jury that had been formerly sworn and discharged in this case."

To these objections the court ordered: "And now, March 13, 1885. These objections having been filed after all the jurors complained of had been sworn and the prisoner not having challenged any of the jurors called on the ground that they or any of them had been sworn on the former jury, and every opportunity having been given to

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examine the jurors as to their qualifications, the second ground is not sustained. As to the other ground, the jury was discharged because a separation had been permitted with the consent of prisoner, as appears on record by minutes made by the court. Such discharge was, therefore, necessary under the law, and as the prisoner consented to the separation, he cannot now take advantage of his own act. Therefore objections not sustained."

The prisoner was convicted of murder in the first degree and sentenced to be hung.

J. G. White, Stranahan & Bowser, for plaintiff in error. G. E. Patterson, district attorney, with whom were Stewart & Cochran, for defendant in error.

MERCUR, Ch. J. The main contention in this case arises under the first specification of error. After a jury had been selected and sworn in the case, and had been discharged without the consent of the defendant, he objected to the selection of another jury, and plead former jeopardy. The court refused to sustain the plea.

Article V of the amendment to the Constitution of the United States, inter alia, declares: "Nor shall any person be subject for the same offense, to be twice put in jeopardy of life or limb." Article 1, section 10, of the declaration of rights in the Constitution of Pe nnsylvania declares: "No person shall, for the same offense, be twice put in jeopardy of life or limb." This declaration of individual pro tection is not new to the people of this Commonwealth. The identical language was in the Constitution of 1790. It was retained in the amended one of 1838, and is repeated in the present Constitution. It will be observed that the constitutional prohibition does not declare that a person shall not be twice tried for the same offense, which involves his life or limb; but that he shall not be twice put in jeopardy.

At what step in the prosecution is a person put in jeopardy, to which he shall not be subjected the second time for the same offense? Undoubtedly when the trial begins, in which he is charged with a capital offense. That begins when the jury is charged with the pris oner. It is so charged as soon as the twelve jurors are duly impaneled and sworn. They are sworn well and truly to try and true deliverance make between the Commonwealth and the prisoner whom they have in charge. The trial has then begun. The prisoner stands before them as his judges, with his life in their hands. Commonwealth v. Cook, 6 S. & R. 578; Same v. Clue, 3 Rawle, 498; Peiffer v. Commonwealth, 15 Penn. St. 468; McFadden v. Same, 23 id. 12; Alexander V. Same, 105 id. 1.

but

The jury are not only the judges of the facts in such a case, also of the law. If they find the prisoner not guilty, although in clear mistake of the law, no court can review the correctness of that verdict and again put him in jeopardy for the same offense. Whether the verdict be on the Commonwealth declining to give any evidence, or whether it be after a protracted trial and the testimony of many witnesses, the judgment thereon is equally conclusive. In the case the court, of its own will and action, discharged the jury, after

present

it had been duly sworn, impaneled and charged with the prisoner. His consent thereto was neither given nor asked for. This action of the judge was induced by the fact that, after the jury had been so duly charged, he had, on the previous evening, permitted it to separate by consent of the prisoner and of the Commonwealth.

The question now is, did that separation authorize the court to discharge that jury, and put the prisoner on trial before another jury on the same indictment?

When the second jury was about to be called and the prisoner informed of his right of challenge, his counsel filed a plea of former jeopardy. The court overruled the plea, holding that inasmuch as the discharge of the jury was by reason of its separation with the consent of the prisoner and the Commonwealth, he could not on that account plead former jeopardy, and therefore refused to sustain the plea.

No complaint is now made that the jury was permitted to separate; but the claim is that the separation did not impair the conclusive effect of their discharge. In other words, that the discharge from the first jeopardy was not under such an extreme and overwhelming necessity as to justify an entire disregard of the constitutional protection guaranteed to every person.

The decisions of the different States are not in entire harmony as to the power of the court to discharge a jury after it is sworn in a criminal case. In some of them no clearly defined distinction appears to have been made between capital offenses and those of lesser grade. It is not necessary to cite them. In our own State we have a line of cases applicable to the discharge of a jury in capital offenses which control this case.

We will refer to some, and to the opinions of the able judges in deciding them. Commonwealth v. Cook, supra, was a capital case, in which the court, without the consent of the prisoner, had discharged the jury by reason of their inability to agree on a verdict. The opinion is by Mr. Chief Justice TILGMAN. He reviews the English decisions prior to the Revolution, and the American cases since, which relate to the power of the court to discharge a jury after they are all sworn in a capital case, and then says: "I grant that in case of necessity they may be discharged; but if there be any thing short of absolute necessity, how can the court, without violating the Constitution, take from the prisoner his right to have the jury kept together until they have agreed, so that he may not be put in jeopardy a second time?"

He further adds: "I think myself safe in asserting that there is no evidence of any instance since William Penn obtained his charter from Charles II, in which a jury was discharged without the consent of the prisoner, in a capital case." He closes his opinion by saying: "For my own part, thinking that their blood would be upon us if they were convicted of murder in the first degree on a second trial in this court, I am of opinion that they should be discharged from this indictment."

Mr. Justice DUNCAN also filed an opinion entirely concurring with the chief justice, and adds: "There is at this day a settled and uncontroverted rule, that in case of life or member, a jury sworn and