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I believe there is not a single case to be found in the books, where the court is precluded from the exercise of a discretionary power in discharging the jury, if the prisoner should put himself upon the country in a fit of insanity—so in the case of the jury becoming intoxicated—so if one of the jurors fall down in a fit of appoplexy--so if one of the jurors be mentally diseased, or incurably prejudiced against the accused-so if the jury be separated and dispersed by an armed force,--and, so, also if the judge be incapacitated from presiding over the trial. In all these cases, I presume it will not be pretended, the prisoner would go without day. If such a doctrine be established and declared to be the law of the land, the ends of justice would be defeated, and the most abandoned and depraved villains would be virtually licenced in the commission of the most unparallelled atrocities. Every principle of public policy and expediency protests against such a state of things, and I think the corrective, must, from the very nature of things, rest in the breast of the court, in the exercise of a sound discretion, controlled by the cases cited, for the protection of the prisoner, from unreasonable and oppressive prosecutions. The defendant's counsel relied much upon the 5th Article of the amendment to the constitution of the United States, which contains the following provision:" nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb." I must confess, this amendment to the constitution of the United States, created the only doubt I have ever entertained upon this important question. It was properly admitted in argument, that this provision of the constitution was binding in the United States, as well as the state courts of the Union, for I take it, it has never been questioned, but that the constitution of the United States is the paramount law of the land, any law usage or custom of the several states to the contrary notwithstanding. What was intended by the framers of the constitution, when they declared, "nor shall any person be twice put in jeopardy of life or limb for the same offence." Chief Justice Spencer, in the case of the People vs. Goodwin, 18 Johnson, gives a very learned and able opinion upon this subject, and shews what must have been the intention of those who framed this Article? But, it is asked, why insert a provision in the constitution, for the protection of the citizen, which had been repeatedly and unequivocally recognised by the whole

current of English authorities? This question will be satisfactorily answered, by a recurrence to the history of the times, not very long after the establishment of our independence, when every state, and every individual in the community were jealous of their rights and libertiesprivileges which they had rescued at the hazard of their lives and fortunes from the throes of the revolution, and secured by a solemn recognition in the charter of their political freedom. They did not wish to leave any thing in doubt, when they looked back with horror and indignation to the judicial despotism of a Jeffries. The prisoner, it is said, was in jeopardy from the very moment the jury was empannalled to try him, but, I cannot pursuade myself that such is the fair construction to be given to the amendment. The forms prescribed the by law, to ascertain the guilt or innocence of the accused, cannot properly be considered, that kind of jeopardy contemplated by the constitutien of the U. States; but, the means used by courts of law, in attaching the jeopardy, which can never take place, until after the rendition of the verdict by the jury, charged with the deliverance of the accused. Such I conceive to be the construction, which ought to be placed upon this word. A prisoner must in all cases answer to his offence, before he can be considered in jeopardy.

And will it be contended, if any one of the facts necessary to constitute the whole of an answer be wanting, that the others will be sufficient in contemplation of law? But, we are met by this objection--suppose the court place it out of the power of the prisoner to answer by discharging the jury, then I will answer and say, if the discharge has taken place unadvisedly, the cases controlling the undue exercise of such a power, will protect him, and the court will in all such cases be compelled to consider his answer as full and perfect, upon a plea of autrefois acquit. How stands the case here? The defendant Moor, was arraigned, and he pleaded not guilty, and put himself upon the country for trial, and a jury was regularly charged with his deliverance. After hearing the evidence and counsel on both sides, the jury retired to consider of their verdict, and not being able to agree, they were discharged at the very last moment of the term, when the powers of the court and jurors ceased. Was this the exercise of a discretionary power, used for the purpose of oppressing the prisoner? Certainly not. It was a case of inevitable necessity,

The case

which grew out of the operation of the law, known to the prisoner, and over which the court could have no control. I cannot distinguish this case, of inability, in the jury to act, from those I have already mentioned, where the jury, either from intoxication, or if they be bodily or mentally diseased, are incapacitated from the discharge of their duties. of Cook & et. al, cited from Pennsylvania, does not deny the power of the Court, under imperious cases of necessity, to discharge the jury. Chief Justice Tilghman, in giving his opinion, said it was the duty of the Justices who tried the case, to receive separate verdicts, although the jury could not agree as to the other. There was no fact on the record to shew, which of the parties were entitled to the verdict, the jury were ready to give in, therefore, the learned judge correctly observed, he would not jeopardize the lives of innocent men, who had a right to claim their verdict, on the trial below, more especially as it did not appear to the court there was an absolute necessity of discharging the jury at the time they separated, He observes, when speaking of Goodwin's case, "this argument, it must be confessed reached to all cases of felony, but still he prudently confined his opinion to the case before the court, in which there was an ingredient of some weight, not found in any other case, and that was, that the time of the court setting was to expire in half and hour, and there was a moral certainty the jury would not agree in so short a time." The case decided by Mr. Justice Story, 2 Gallison 364, lays down the position, the courts have the power of discharging juries under striking circumstances of necessity.

We are of opinion the judge acted in conformity with the well established principles of law, in discharging the jury, and remanding the prisoner to take his trial at the next term.

JOHN KERR ADM'R. vs. THOS. BAKER, ADM'R.

In an action of assumpsit upon a joint and several promissory note, one of the co-obligors cannot discharge himself at law by evidence that he was a security only and had been injured by the failure or neglect of the plaintiff to prosecute his demand against the principal debtor after being requested so to do by the security.

Such a defence, if available any where, must be made in a court of equity, where the form of the security is as above stated.

OPINION OF THE COURT-BY THE HON. POWHATTAN ELLIS. The facts in this case, as they appear from an inspection of the record, are, that James M'Clelland and David Kerr on the 11th day of September 1816, jointly and severally, promised to pay Thomas Baker administrator, and Mary Brooks administratrix of the estate of John Brooks deceased, four hundred and thirty dollars for value received. Thomas Baker, the surviving representative of the estate of Brooks deceased, instituted an action of assumpsit, against John Kerr, the administrator of David Kerr deceased. The defendant pleaded non assumpsit, issue joined, and verdict returned for plaintiff.

When the cause came on to be heard at the Adams circuit court, May term, 1823, the defendant's counsel prayed the court to instruct the jury, that if they should believe from the evidence, that the defendant's intestate, was the security of James M'Clelland, in the declaration mentioned and that he or his representative had been injured by the failure or neglect of the plaintiff, to prosecute his demand against the principal, after being so requested to do, by the security, or his representative, the defendant was discharged, and that the jury should be so instructed. But the court differing in opinion from the counsel, instructed the jury, that the defendant, or the intestate, as the security, was as much bound, as the principal and could not be discharged on the ground stated by counsel, as it appeared from the note set forth, that the parties were jointly and severally bound, to which opinion of the court, the defendant by his counsel, excepted. The only point presented for the consideration of the court is, whether, in an action of assumpsit upon a joint and several note, under the plea of the general issue, the present plaintiff in error, should have been allowed in the court below, the benefit of testimony, as a security, which would have gone to exonerate him from all liability. There seems to be no doubt, from the weight of English authorities, that the laches of an obligee, in not calling upon the principal as early as he might have done, at the request of the surety, and before the insolvency of the principal, is not an estoppel at law against the surety, unless the contract has been essentially changed by the act of the obligee. This principle was ruled in the case of Wright vs. Russell, 2, W. Blackstone Reports 934, where Lord Chief Justice De Gray observes, "The law is, that the

surety shall not be bound beyond the scope of his engagement as understood at the time he entered into it." As if a person be in trade, and hire a clerk, and receive security, for the faithful discharge of his duties by accounting at regular and stated periods to his employer, and he afterwards enter into partnership with another, without the consent and privity of the guarrantee, the contract would be at an end, and the security discharged from all farther liability, at least, so far as it relates to the transactions of the partnership concerns. If then it be correct, the surety shall not be bound beyond the scope of his engagement as he understood it at the time it was made; I think it equally true, he should be made to conform to its requirements as he understood them, and that he should not be permitted, by his own act, contrary to the wish of the principal, to destroy the force and effect of his own undertakings; more especially he cannot do it in a case like the present, because the suit is instituted upon a joint and several note, when the liability of both principal and surety is irrevocably fixed by the operation of our statute. It is true, in some of the cases I have looked into, a defence of this kind has been tolerated, but they have always been regulated by statute. Such was the case of the People vs. Janson, et al, 7, Johnson, 332; where it was said, "In an action brought against a surety, on a bond, given for the faithful discharge of the duty of loan officer, under the act of Assembly, he might set up in his defence the laches of the supervisors, in not discharging and prosecuting the loan officer, for his first default." The action, in the case alluded to, was founded upon a bond of indemnity under a penalty; and which, under the New York statute, required an assignment of breaches. The defendants pleaded non est factum, and non damnificatus, and gave notice of special matter, to be offered in evidence at the trial. When the cause was heard, the defendants satisfactorily proved the negligence of the supervisors, and upon a reference of the special verdict, taken to the supreme court, and upon a full hearing, the postea was delivered to the defendants. The statute of New York, was evidently passed to lessen the rigor of the common law, which drove parties into equity for relief against the penalty of such deeds, or for a general exonereter. Suppose we were to suffer one of the joint and several obligors, in a case like the present, to come in under the plea of non assumpsit, and give evidence of facts, which

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