charged cannot be discharged before they give a verdict, unless with the consent of the prisoner and where it is for his benefit, or in cases of extreme necessity, and if a jury is otherwise discharged it clearly amounts to an acquittal of the prisoner."

The correctness of the law as declared in Commonwealth v. Cook was affirmed in Commonwealth v. Clue, supra, in an opinion by Mr. Chief Justice GIBSON. In discussing the justice and reason of the rule he says: "Why it should be thought that the citizen has no other assurance than the arbitrary discretion of the magistrate, for the enforcement of the constitutional principle which protects him from being twice put in jeopardy of life or member for the same offense, I am at a loss to imagine. If discretion is to be called in, there can be no remedy for that most palpable abuse of it; but an interposition of the power to pardon, which is obnoxious to the very same objection. Surely every right secured by the Constitution is guarded by sanctions more imperative." In that case the first jury had been discharged, without the consent of the prisoner, by reason of the sickness of two of the jurors. This court, thinking the illness was produced by reason of the jurors being kept without food or refreshment, and believing if the same had been furnished the health of the jurors would have been sufficiently restored, held there was no sufficient cause for their discharge, and that it was a bar to a second trial for the same offense.

McFadden v. Commonwealth, supra, was also a capital case. In the opinion of the court by Mr. Chief Justice BLACK, he says: “A discharge of the jury in a capital case, after the trial has begun, is not a continuance of the cause. It is the end of it. And for all purposes of future protection it is the same to the prisoner as an acquittal, unless it was done with his own consent, or demanded by some overwhelming necessity, such, for instance, as the sickness or death of a juror."

In Peiffer v. Commonwealth, supra, Mr. Chief Justice GIBSON declared that: "Even the forms and usages of the law conduce to justice."

The people of this Commonwealth, in all of its organic laws, and with great tenacity, have applied this rule to trials by jury. Thus the Constitution of 1776, framed by the convention over which Benjamin Franklin presided, declared "trials shall be by jury as heretofore."

As if to emphasize the thought, and make the right more secure, the Constitution of 1790 changed the language and declared: "That trial by jury shall be as heretofore, and the right thereof remain inviolate." These precise words were retained in the Constitution of 1838, and are repeated in the Constitution of 1874.

The question is, was it error to overrule the prisoner's plea of former jeopardy, when he was called before the second jury? It may be conceded that a person on trial for a capital offense ought not to be asked to consent to a separation of the jury. Peiffer v. Commonwealth, supra.

To this conclusion the court came, on the next day, after per

mitting them to separate. The prisoner had not withdrawn his consent to that separation. He had not, and did not, interpose an objection to the continuance of his trial before that jury. If it had gone on before them, and he had been convicted of murder in the first degree, non constat, that he would have assigned that separation to avoid the effect of the verdict. The Commonwealth could not.

Under the indictment it was within the power of the jury to acquit the prisoner of murder, and to find him guilty of voluntary manslaughter only. If such were the verdict and the prisoner assigned for error to the judgment, the separation of the jury, we would apply the same rule that should be applied in case he had been indicted and tried for manslaughter only. Moss v. Commonwealth, 15 Pittsburgh Legal Journal, 107. It is neither proven nor alleged that the jurors were subjected to any improper influence during their separation. If the conviction had been for the lesser grade the separation, of itself alone, would not have been a fatal error.

We are not able to understand how the consent of the prisoner to the separation of the jury from evening until morning justified their subsequent discharge. If his consent gave any validity to the separation, it remained in full force. He had not in any manner attempted to supersede or impair its effect. If his consent was of no validity, then the error in permitting the separation was that of the court, and the prisoner was not responsible therefor.

The discharge of the jury was not caused by any improper conduct of the prisoner during the trial. He did not consent to it. It was the action of the court alone, and to retrieve what the court thought was its previous error. If the right to discharge the jury for an error made by the court existed at that stage of the trial, we cannot see why the same right might not again be invoked, if a similar error had been committed near the close of the trial. If the right to so discharge be conceded to exist, then a person may, for the same offense, be put in jeopardy of life for an indefinite number of times.

The great safeguard which the organic law has thrown around the prisoner cannot thus be set at nought, to correct any error committed by the judge during the trial of the cause. Under all the facts in this case, we cannot concede any discretionary power in the court to thus strike down the constitutional right of every person on trial for a capital offense. It is better that one guilty man escape, than to disregard the mandate of the Constitution and establish a precedent which might result in many unjust convictions in the future."

The language of the Constitution is imperative. The ablest judicial minds which have administered the law in this Commonwealth have emphasized its protecting power. Yielding then to the clear covenant of the former, and adopting the construction put upon it by our predecessors on this bench, we do not find that the first jury was discharged under such extreme and overwhelming necessity, as to subject the prisoner to be again put in jeopardy of his life for the same offense. It was clear error not to sustain the plea of former jeopardy, and also in putting the prisoner on trial before another jury for the same offense. He should have been discharged from the indictment.

The conclusion at which we have arrived makes it unnecessary to consider the other specifications of error.

Judgment reversed, and it is further ordered that the record be remanded with this opinion setting forth causes of reversal, to the court of oyer and terminer of the county of Mercer, for further proceedings. GORDON, J., dissents.

DECREE IN EQUITY - PROCEEDINGS ESTOPPING RECOV - DUTY OF VENDEE COMPENSATION.

ERY BY ACTION AT LAW June 2, 1881, A. contracted with B. to convey him, by deed, a piece of land, on or before June 15, 1881. A. refused to perfect the contract with B., and exe cuted a deed for the premises to C., whereupon B. instituted proceedings in equity to compel a cancellation of the deed to C., and also compel specific performance of the contract, which was decreed. Pending the equity proceedings C. mined and carried away coal and cut and carried away timber from the land. After the determination of the equity proceedings and the specific performance had been completed, B. proceeded by action at law to recover the value of the coal and timber taken. The lower court held, that the decree in the equity proceedings estopped B. from recovering in his action at law. Held to be correct.

If the remedy of specific performance is possible at the commencement of a suit by the vendee, and whilst the action is pending the vendor in any way renders the remedy impracticable, the court will not compel the plaintiff to bring a second action at law, but will do full justice by decreeing a recovery in damages. The duty, however, of knowing the condition of the property and of seeing that he is fully protected in the decree devolves upon the vendee.

A court of equity will ordinarily effect a complete adjudication of the whole matter in issue, will not allow any proceedings at law without its leave in respect of the same subject-matter, and will, at any time, before the completion of the transaction by the execution of the conveyance and payment of the purchasemoney, enforce compensation in respect of any proper subject of compensation arising before that time.

Error to the court of common pleas, No. 1, of Allegheny county. The facts are fully set forth in the syllabus and the opinion.

D. T. Watson, for plaintiff in error. John S. Ferguson, for defendants in error.

case:

CLARK, J. There is but a single question for our determination in this "Is the plaintiff estopped, by the decree in the equity suit for specific performance, from maintaining an action at law for an injury to the property, which was the subject of the equity suit, committed during the pendency of the equity litigation?"

It must be conceded, we think, upon the bill for specific performance the court of common pleas of Allegheny county, sitting as a court of equity, had full jurisdiction to award the damages to the plaintiff, for the coal carried away and for the timber cut on the land, which was the subject of the bill, up to the date of the decree. The prayer of the bill was for specific relief, purely equitable in its character, the granting of which was distinctly within the exclusive jurisdiction of equity, and to this relief at the filing of the bill the plaintiff was admittedly entitled.

During the pendency of the proceedings on the bill, the property was deteriorated by the defendant, specific performance as contem

plated in the contract was to this extent rendered impracticable, and the plaintiff was, without doubt, entitled to the only alternative possible, viz., compensation for the injury in damages.

The rule is well settled, that if the remedy of specific performance is possible at the commencement of a suit by the vendee, and whilst the action is pending the vendor, in any way, renders the remedy impracticable, the court will not compel the plaintiff to bring a second action at law, but will do full justice by decreeing a recovery in damages. Morss v. Elmendorf, 11 Paige, 277; Woodcock v. Bennet, 1 Cow. 711; Milkman v. Ordway, 106 Mass. 232-53; Pomeroy Eq. 237.

A court of equity, in such a case, will ordinarily effect a complete adjudication of the whole matter in issue; will not allow any proceedings at law, without its leave, in respect of the same subject-matter, and will, at any time before the completion of the transaction, by the execution of the conveyance and payment of the purchase-money, enforce compensation, in respect of any proper subject of compensation, arising before that time. Fry Spec. Perf. 819.

If this action at law had been brought at any time prior to the perfecting of the decree in the equity case by the delivery of the deed and the payment of the purchase-money, we think it cannot be doubted that the plaintiff might have been restrained in the prosecution of it, and the ascertainment and assessment of damages would without doubt, in that event, have been remitted to the equity jurisdiction. In Nelson v. Bridges, 2 Beav. 239, a decree had been entered for the specific performance of an agreement, granting the right to raise the stone under a certain plot of ground. During the pendency of the proceedings, and whilst the defendants were resisting the performance, they removed a portion of the very subject-matter of the suit, and the plaintiff under the decree was thereby deprived of the full benefit of his contract. This had not, either in the pleadings or proofs under the bill, been brought to the attention of the court; but after the decree a supplemental bill was filed, to obtain compensation for the loss. It was argued that compensation might have been had at law, on perfecting the decree for specific performance. The master of the rolls, however, was of opinion, that if the matter had been before the court at the first hearing, the claim for compensation would have been put in a proper train of investigation; and that as equity once entertained jurisdiction in the case, it was not necessary to resort to the circuitous remedy offered by the law; that, therefore, the plaintiff was entitled to relief upon a supplemental bill.

In Prothero v. Phelps, 25 L. J. (N. S.) 105, Phelps, upon a bill in equity, obtained against Prothero a decree for specific performance of an agreement. Phelps, then complaining that he had been greatly injured through a breach of the agreement after the filing of the bill, and during the pendency of the proceedings thereon, proceeded by law against Prothero for recovery of the alleged damage. The argument of the plaintiff was, that Phelps, having elected to submit his rights to the judgment of a court of equity, that court had full competency, on a decree for specific performance, to award, beyond the immediate

relief prayed for, compensation for the damages claimed, and that he was not at liberty to proceed at law for his alleged damages, but should be remitted to the vice chancellor, to have an assessment made, if any were in fact, sustained.

On the other hand it was contended that Phelps had a clear right to a decree for specific performance, in equity; also, to recover dainages for his loss at law; and that the damages of which he complained, occurring after the commencement of the suit in equity, was not brought in issue in that proceeding. The lords justices held, that the court having jurisdiction of the subject-matter, the plaintiff at law could not proceed without the permission of the court; that he ought to have submitted his claim for damages to the court of equity which was competent to ascertain them; and they, therefore, directed an inquiry as to such damages, and restrained the action at law. "It seems to be well settled that a court of equity having once had jurisdiction in a suit over the subject-matter of it, will not, except by its permission, allow resort to any other forum in respect of that subject-matter, either when the proceedings are pending in the court or after decree, except in cases where the right to sue at law arises on instruments executed under the decree. But where the decree has been entirely executed and the cause thus out of court, any relief sought in equity can only be granted on a new bill." Fry Spec. Perf. 338.

In Reynolds v. Nelson, 6 Mad. 290, on the general principle stated, the court, after a decree of specific performance, restrained the prosecution of an action for damages in respect of the non-completion of the contract within the time specified; and in Frank v. Basnett, 2 Myl. & K. 618, the plaintiff having obtained a decree for specific perform. ance the case was referred to a master to settle a conveyance; pending the proceedings, the defendant brought an action for the nonerection of a bridge, which the plaintiff was to erect across a stream; the plaintiff filed a supplemental bill and the action was restrained.

In the case at bar, however, the decree for specific performance had been entered, and the decree had been perfected by the delivery of a deed and payment of the purchase-money, before the action at law was instituted, and we are now brought to consider, whether or not that decree will operate as an estoppel to the plaintiff's recovery. It is cer tainly true, as stated in Tams v. Lewis, 42 Penn. St. 410, that a former judgment is not conclusive of any thing which was not directly decided by it, or was not material to the decision; before such effect can be given to it in another suit, it should appear either from the record, or aliunde, that it must have rested on the precise question, which it is sought again to agitate. Whether this is so or not may appear the record itself, or it may be shown by evidence not inconsistent with the record. See, also, Duchess of Kingston's case, 11 State Trials, 261; Hibshman v. Dulleban, 4 Watts, 183.

from

in

The specific performance of the contract of 2d June, 1881, was the subject-matter of the suit in equity, and that subject-matter, was, its nature, and by the terms of the contract, entire, and was, as we have said, within the peculiar and exclusive jurisdiction of equity. The contract covered the conveyance of the land as it existed at the