ment. As far as relates to the former abortive trial nothing which took place could be ground of error on the second trial on the same indictment, unless it would have been a bar by way of plea to a new indictment for the same offence. All the authorities are concurrent to this effect, with the single exception of Conway and Lynch, 7 Ir. L. R., 149; and we have before given our opinion on that case.”

These cases show that even an improper discharge of the jury was not, by the common law, equivalent to an acquittal by verdict, and could not be set up as a defence by plea; and it is important to observe that the same authority holds that it could not therefore be alleged as error. It was simply not matter of defence, and did not show a second trial to be unlawful. The application of this conclusion is immediate. If a discharge of the jury could not in any case be counted as a first trial, with consequent acquittal, in the sense of the common law rule which prohibited a second trial for the same offence, there is no ground for holding such a discharge to be a trial and acquittal in the sense of the same rule when it is incorporated in our Constitution. In short, the alleged rule as to the discharge of a jury, with its alleged consequences, is not in any sense a part of our constitutional rule. At common law the rule that a person should not be tried twice for the same offence, and the rule concerning the discharge of a jury, whatever it may have been, were separate and distinct, and even a disregard of the one was not a violation of the other. The first was put into our Constitution; the other was not. Precisely this point was recognized by Mr. Justice Washington in Haskell's Case, 4 Wash. C. C. Rep., 410. He there said: "We are, in short, of opinion, that the moment it is admitted that in cases of necessity the court is authorized to discharge the jury, the whole argument for applying this article of the Constitution to a discharge of the jury before conviction and judgment is abandoned, because the exception is not to be found in any part of the Constitution. * * We admit the exception, but we do it because that article does not apply to a jeopardy short of conviction." This statement is in effect a distinct denial

that the constitutional rule applies to any case of abortive trial. We are aware that the learned judge seemed to admit afterwards that an improper discharge of the jury might, nevertheless, be reached as matter of error at common law; but we concur in the contrary position of Erle, C. J., in Winsor's Case, and we think that Mr. Justice Washington's intimation was not supported by the decision of the Supreme Court in Perez's Case, 9 Wheaton, 579. The court there said: We think that in all cases of this nature, the law has invested courts of justice with authority to discharge a jury from giving a verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances and for very plain and obvious reasons; and, in capital cases especially, courts should be extremely careful how they interfere with any chances of life in favor of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound and conscientious exercise of this discretion rests, in this as in other cases, upon the responsibility of the judges, under their oaths of office."

It was claimed, in the argument, that when the court said that the law had invested courts of justice with authority to discharge the jury "in all cases of this nature," they referred only to cases where the jury were unable to agree; but Mr. Justice Curtis said, in United States vs. Morris, 1 Curt. C. C., 36, that they were speaking of capital cases; and several expressions in the passage we have just quoted show that they intended to state a rule applicable to all The "circumstances" and "causes," to which courts. should look, were not intended to be restricted to the circumstances of non-agreement. The point, however, to which we refer is, that the Supreme Court must be understood to have held that this matter of the discharge of the jury was

cases.

not controlled by the Constitution. And they plainly intimated that the exercise of the power to discharge was matter of discretion and not matter of error, when they said that "the security which the public have for the faithful, sound and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the judges, under their oaths of office." It was with a distinct reference to this case, that Mr. Justice Curtis said, in United States vs. Morris, that, "in all cases within the jurisdiction of the district court, it is in the power of that court, as it is in the power of the circuit court, even in capital cases, to take the case from a jury impanelled to try it, whenever, in the opinion of the court, it is necessary, or required by the interests of justice to do so;" and, in a later passage, that, "the finding of a cause for withdrawing a juror, or taking a case from a jury, is a judicial act; the authority to do it is entrusted to that court, and no other court can revise its decision."

In accordance with these decisions, we hold that no rule touching the discharge of the jury has, by implication, been incorporated in or referred to by the constitutional rule to which the defendant appeals; that the courts of the United States are invested with power to determine conclusively, in the trial of a criminal cause, when the interests of public justice require that the jury shall be discharged, and that, consequently, such a discharge is not in any case equivalent to a verdict of acquittal, or a defence against a further trial upen the same or a new indictment. Whenever this power shall appear to be dangerous in the hands of the judges, it can be restricted or regulated by Congress; for the whole subject, not being an implied term of the constitutional provision, is subject to legislative control. That it has yet proved to be dangerous, or that it is likely to be so, we do not conceive to be a matter worthy of discussion.

It will be understood, of course, that we do not regard the power to discharge a jury without a verdict as containing the slightest element of arbitrary choice. The discretion. to apply it is one which the trial justice must use under a

solemn obligation to satisfy his judgment that such a course is required by the interests of justice; and even as to this there are well established limitations which he is not at liberty to disregard. It would be inexcusable, for example, to discharge a jury, with a view to a further trial, because the Government is not prepared to go on with the prosecution; and it would be in the power, and would be the duty of the same judge, or of another judge who might be called upon to try the prisoner, after such a discharge, to enter a nolle. As to the discharge in the case before us, we may remark that the bill of exceptions, in which the circumstances are set forth, does not show that it was ordered merely for purposes of convenience. The true purpose and ground of the discharge are disclosed by the order made immediately afterwards, and before the reswearing of the jury, by which the consolidation of the fourteen indictments was dissolved. It is apparent that the judge who tried the cause decided that the interests of justice required such separation of the indictments, and to that end a discharge of the jury. Inasmuch as the prisoner was tried by the very jurors whom he had just accepted, and before his witnesses were allowed to disperse, the only practical change in his position was, that he was tried on one selected indictment, instead of being tried upon that and other indictments consolidated. One of the indictments thus excluded was found under a statute which allowed a longer imprisonment than is provided by the statute under which he was actually tried. Judgment affirmed.

JOHN A. HAMILTON ET AL. vs. RICHARD H. CLARKE ET AL.

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EQUITY. NO. 9063.

Decided February 2, 1885.

The CHIEF JUSTICE and Justices MAC ARTHUR and JAMES sitting. Where a sale of realty is directed to be made after the death of tenant for life, who is one of two executors, and there is no specific mention as to by whom the sale is to be made, there is no power of sale in the surviving executor; but the court will, on application of the parties interested, appoint a trustee to sell.

STATEMENT OF THE CASE.

John B. Boone died July 17, 1859, testate, seized of two lots of ground in the city of Washington, both improved, and worth about $10,000. His will, dated June 17, is as follows:

"First. It is my will, and I do order that all my just debts and funeral expenses be duly paid and satisfied, as soon as conveniently can be after my decease, out of the first moneys that shall come into the hands of my executors from so much of my personal estate as may be necessary to meet and fully discharge the same.

"Item. I give and bequeath to my beloved wife, Jane E. Boone, in addition to her right of dower at common law, all my personal property of every kind and description whatsoever and wheresoever situated, after the payment of my just debts and funeral expenses, during her natural life, to use, enjoy and dispose of the same, and at her death to dispose of the same, as she may deem fit and proper.

"Item. I give and devise to my said loving wife, Jane E. Boone, all my real estate, being part of lot numbered 15, in square 347, with the buildings thereon; and also the brick house and lot in square No. 348, all being and lying in the city of Washington, D. C., for and during her natural life, to have, use and enjoy the same; and at her death it is my will that the sum of three hundred dollars ($300) shall be paid to my beloved nephew, Alexander Hamilton, out of the proceeds of the sale of my real estate aforesaid.

"Item. It is my will, and I direct, that at the death of