fense is a good plea, yet it is intendable of a lawful acquittal or conviction; for, if the acquittal or conviction is not lawful, his life was never in jeopardy; because the indictment in this case was insufficient, and for this reason he was not legitimo modo acquietatus. Since this case, its principle has never been questioned in the English courts: on the contrary, it has been recognized and acted on in a number of subsequent cases as unquestionable. Indeed, in all the subsequent cases that I have looked at, it is assumed as a certain point on which they were to rest. See the following cases: Vandercomb v. Abbot, East, Cro. Law, tit. Burglary; The King v. Emden, 9 Id. 439; 3 P. Wm. 439–499.1

The fourth proposition may be sustained without calling into question any extraordinary exercise of discretion on the part of the circuit judge. It seems to me that it was matter of indifference to the prisoner, whether the proceedings were arrested or not. If the indictment was void, all the proceedings founded on it were a nullity, and can not be sanctioned by the mere forms and ceremonies of an arraignment. The case might be considered properly as standing on a motion to quash a void indictment, or to withdraw from the jury a paper that was not in fact an indictment. If the indictment was good, the judge was wrong, and the prisoner was entitled to his discharge, because he was once in jeopardy. The exercise of the discretion of a judge in such a case, never could operate to the prejudice of the prisoner. Consider the case, however, as it actually was-and perhaps it should be so considered-that the prisoner was arraigned on a void indictment, whose defects appear palpably on its face, showing that the prisoner was charged with an impossible offense, did the circuit judge exercise an unauthorized jurisdiction in discharging the jury from the further consideration of the case? In general, when a jury is charged with a case, it can not be discharged without rendering a verdict. This general proposition is subject, however, to many exceptions, and juries may, in many cases, be discharged without giving a verdict. Mr. Justice O'Neall has pointed out many cases in his opinion above referred to. In all the cases on this point, the judges have given their opinions on the assumption that the jury had been regularly charged on a legal indictment. In none that I have examined has the question arisen on an invalid indictment. Discretion becomes dangerous in proportion as it may become despotic and mischievous; and when no valid judgment can be ren. dered, I can not see the danger of a judge exercising a discretion to

1. Rex v. Burridge.

prevent one being rendered at all. It amounts to nothing more than quashing the indictment, and ordering the prisoner to stand ▲ legal trial, and places him in no worse or better situation than if he had been convicted or acquitted. It was in the power of the prisoner to have obviated any of the consequences of such order, if he apprehended it would operate prejudicially. He could have consented that the record should have been amended. To say that it would be in the power of a prosecuting officer, either to oppress or aid a prisoner, by an irregularity in the indictment, would be but to say that a dishonest and designing officer, similarly situated, could always effect his purpose in other and more effectual modes. From the time that the defect was discovered in the indictment, was it not worse than a mockery to carry on the trial? To put it on no higher ground, it would have been an act of supererogation on the part of the court. It could have availed nothing but to let the parties witness the development of the testimony. It would have been to use the court for a purpose for which it was not constituted. I never would allow the judge to look beyond the record for any cause to arrest the trial; nor in general should he do so, but in palpable and flagrant cases of defect in the indictment. Not that the prisoner would suffer by it; for any mistake of the judge would always operate in his favor. There are many admitted occasions on which a judge must exercise his judgment to discharge a jury. If he were disposed to be corrupt, he could exercise this discretion without the power of control or correction. He must always judge of the necessity-such as his own, or the illness of others concerned in the trial. The remarks against a judge's power to discharge a jury after the arraignment of a prisoner, have been leveled at its abuse, and not its existence.

Mr. Justice Foster, in the introductory remarks of his judgment in the Case of Sir John Wedderbourn, says, as to the power of a judge to discharge juries in capital cases: "The question is a point of great difficulty and mighty import, and I take it to be one of those questions that are not capable of being determined by any general rule that hath hitherto been laid down, or possibly ever may," etc. "For I think it impossible to fix on any single rule which can be made to govern the infinite variety of cases that may come under this question, without manifest absurdity." Chief Justice Tilghman makes a similar remark in the case of The Commonwealth v. Cook et al., 6 Serg. & R., 577 [9 Am. Dec. 465], and concludes by saying that "judges have therefore thought it safest to de

cide from time to time the cases that have been brought before them, taking care not to commit themselves on general principles." So far from laying down a general rule, I have avoided it, and wish to be understood as restricting myself to the particular case under consideration. I am satisfied, under the very

peculiar and extraordinary state of the facts of this case, and the glaring defect of the indictment on its face, that the jury ought to have been discharged. I would have the indictment to present the whole case; but here it contains a charge of an impossible offense, or one that the court could not take notice of. It involves no higher power than that the judge should judge of his jurisdiction. Let it not be understood that I would allow a judge to resort to any but a conceded state of facts, for his determination, appearing on the paper itself.

It is the judgment of the court that the motion be dismissed. RICHARDSON, EVANS, and EARLE, JJ., concurred.

O'NEALL, J., was not present at the argument, but concurred in the judgment, as pronounced in the above opinion.

IMPOSSIBLE OR FUTURE DATE stated in an indictment is fatal: State v. Sexton, 14 Am Dec. 584. An indictment in which no day at all is stated as the date of the commission of the offense, will not support a judgment of conviction: State v. Roach, 2 Id. 626; State v. Beckwith, 18 Id. 46.

POWER OF COURT TO AMEND or reform indictment: Note to State v. Sexton, 14 Am. Dec. 585.

NO MAN CAN BE TWICE PUT IN JEOPARDY of his life for the same offense: Campbell v. State, 30 Am. Dec. 417; State v. Cooper, 25 Id. 490; State v. McKee, 21 Id. 499. In the note to this last case, the question of what is sufficient to constitute legal jeopardy, so as to bar another prosecution for the same offense, is considered at length.

DISMISSAL OF A JURY IMPANELED to try a criminal case does not entitle the prisoner to his release, when: Nugent v. State, 24 Am. Dec. 746; Commonwealth v. Pickering, 13 Id. 452; State v. Burket, 12 Id. 662; State v. Moor, Id. 541; State v. Woodruff, 2 Id. 122; People v. Olcott, 1 Id. 168. In State v. McKee, 21 Id. 499, the only causes for which the court may, after a jury has been once impaneled, discharge them, and remand the defendant, are stated to be: 1. Consent of the prisoner; 2. Illness of one of the jury, the prisoner, or the court; 3. Absence of one of the jurymen; 4. Impossibility of their agreeing on a verdict. Discharge of jury for reason last mentioned has been restricted to cases where the necessity of so doing is of an absolute character: Com. v. Cook, 9 Id. 465; People v. Goodwin, Id. 203.

EXECUTORS OF WARE v. MURPH.

[RICE'S LAW, 54.]

DEVISE IN WHICH TESTATOR SIMPLY DIRECTS LAND TO BE SOLD BY HIS Ex

ECUTORS, and the proceeds applied to the payment of his debts, conveys to the executors a mere power to sell, and the fee passes to the heir, to become divested, whenever the power is exercised.

DEVISE OF LAND TO AN EXECUTOR IN PERSON, with an additional direction that it be sold by him, vests the fee in the executor.

TRESPASS. Plaintiffs sued as executors of the last will and testament of Ware. Defendant moved for a nonsuit on the ground that the will gave the plaintiffs only a power to sell, and not the fee in the land. Motion overruled by the judge below. The opinion states the case.

Irby, for the motion.

Young, contra.

By Court, EVANS, J. This was an action of trespass to try title, tried before me at Laurens, fall term, 1838. The plaintiffs were the executors of Edmund Ware, and claimed to maintain the action in their own right, under certain clauses in their testator's will. The sixth clause in the will is as follows: "It is my will and desire, that all the rest and residue of landed and real estate, and of such real estate as may hereafter come to the possession of my executors, now in dispute, and to which I have a claim, be sold by my executors," etc. By the eighth clause, he directs the proceeds of the sale, with other funds, to be applied to the payment of his debts. The question arising on the construction of these clauses is, whether, by the will of Edmund Ware, the fee in the land in dispute passed to the executors, or whether the will gave them a mere power to sell? A motion was made for a nonsuit, which I refused, because I was not fully satisfied on the subject. Since the argument in this court, I have looked into the case, and have made up a clear judgment, that the motion should be granted. The distinction is, between a devise to executors to sell; as if the testator say, I devise my land to my executors to be sold-and a devise that the executors shall sell, as where the testator says, I devise, or direct, that my lands be sold by my executors. In the first case, the fee passes to the executors; in the last, the fee passes to the heir to be divested whenever the power is executed by the executors. It is supposed that the direction to pay the debts from the proceeds will vary the rule above stated, which is admitted to be the general rule. All the authorities are reviewed by

AM. DEC. VOL. XXXIII-7

Sugden, in his work on powers, page 106; and he says, "there is no authority for this distinction, except a dictum of Sir Matthew Hale;" that it had been held, that if a man devises that his land be sold for the payment of his debts, this will give an interest to the executors, as well as if he had devised his lands to his executors to be sold. The same principle has been stated in 15 Johns. 346;' but I think the question has been settled in our case of Ferguson v. King, 2 Nott & M. 588.' There, the testator devised his land to be sold by his executors for the payment of his debts; but they were directed to divide, if they should be of opinion it would be best for his estate not to sell the land. The executors neither sold nor divided; and after a lapse of many years, the heirs at law sued to recover the land. It was held they could maintain the action, and the opinion goes on the ground, that the fee vested in them, and the executors had only a power. The motion for a nonsuit is therefore granted.

GANTT, RICHARDSON, BUTLER, EARLE, and O'NEALL, JJ., concurred.

DEVISE WITH POWER OF SALE. -A devise of land to wife of testator for life, coupled with a power, in case of need, to sell all his estate both real and personal, for her comfortable support, vests in the wife a life estate only, with a power of sale depending on a contingency: Stevens v. Winship, 11 Am. Dec. 178; direction in a will that land of testator shall be sold and the proceeds distributed, creates a vested interest in the legatees, as much as if the land itself had been devised: Tazewell v. Smith, 10 Id. 533; where land is directed to be sold equity will treat it as money: Id.

POWER OF SALE GIVEN TO AN EXECUTOR in a will, although the power is implied simply, vests the title in the heir at law until a sale by the executor, when it becomes divested, and the proceeds then stand upon the same footing as a legacy of personalty: Going v. Emery, 26 Am. Dec. 645; executors acting under a power of sale, become trustees for the devisees and heirs, and the law and the devise constitute them trustees for the creditors; Bruch v. Lantz, 21 Id. 458; power given to an executor by will to sell lands, when, in his opinion, sale can be made to good advantage, accompanied with a direction to distribute the proceeds among testator's children, is a power coupled with an interest, and entitles the executor to the possession of the land: Dabney v. Manning, 17 Id. 597.

PATTON V. MAGRATH AND BROOKS.

[RICE'S LAW, 162.]

MASTER AND OWNER OF A VESSEL MAY BE SEVERALLY HELD LIABLE for loss of goods delivered for transportation, but they can not be held so jointly.

1. Jackson v. Ferris.

2. King ads. Ferguson.