2. OFFICER-contempt of court. The 190th section declares, that, if any such officer shall knowingly violate his oath, he shall be punished for a contempt of court by fine or imprisonment. These provisions were adopted to secure a fair and impartial trial to the accused, as he not unfrequently is in prison at the time, and is unable to guard his rights. It is the duty of courts to strictly guard human life and liberty from being sacrificed by public prejudice or excitement. Outside influences should be kept from the jury trying such These provisions of the statute are clear, explicit and peremptory, and cannot be omitted, and when refused it is error.

causes.

WRIT OF ERROR to the Circuit Court of Clay county; the Hon. AARON SHAW, Judge, presiding.

At the October Term, 1865, of the Clay Circuit Court, the grand jury presented an indictment against George Lewis and others, for stealing one mare of the value of $150, and one colt of the value of $50. A capias was issued, and defendant was arrested.

The cause was tried at the May Term, 1867. After hearing the evidence, the jury returned a verdict of guilty, and found the property stolen to be of the value of $200, and fixed the term of defendant's confinement at four years in the penitentiary.

Defendant entered a motion for a new trial, for the reason, among others, that the officer taking charge of the jury was not sworn as required by the statute. This ground was supported by affidavit of its truth.

The court overruled the motion and rendered judgment on the verdict, and sentenced defendant to be confined in the penitentiary for the term found in the verdict, to reverse which defendant prosecutes this writ of error, and relies upon the overruling of his motion for a new trial for a reversal.

Mr. SILAS L. BRYAN, for the plaintiff in error.

Mr. JUSTICE WALKER delivered the opinion of the Court:

In this case plaintiff was indicted for stealing a mare and colt. A trial was subsequently had in the Circuit Court, resulting in a verdict of "guilty," and that he be confined in

Opinion of the Court.

the penitentiary for the term of four years. A motion was entered for a new trial, upon the ground, among others, that the jury, when trying the case, after hearing the evidence, retired to consider of their verdict, in charge of an officer who was not sworn in the mode prescribed by the statute. The motion was overruled and a judgment rendered on the verdict. The record discloses the fact, that the officer in whose charge the jury were placed while deliberating on their verdict was not sworn, and this is the only error relied upon for a reversal.

The 189th section of the Criminal Code, R. S. 186, declares, that, "When the jury shall retire to consider of their verdict, in any criminal case, a constable or other officer shall be sworn or affirmed to attend the jury to some private and convenient place, and, to the best of his ability, keep them together without meat or drink (water excepted), unless by leave of the court, until they shall have agreed upon their verdict, nor suffer others to speak to them, and that when they shall have agreed upon their verdict he will return them into court."

But it declares, that, in any cases of misdemeanor only, if the prosecutor for the people and the accused shall by himself or counsel agree, which agreement shall be entered upon the minutes of the court, they may dispense with the attendance of an officer upon the jury.

The next section declares, that, if any officer sworn to attend upon a jury shall knowingly violate his oath or affirmation, or shall so negligently perform his duties that the jury shall separate without leave of the court, or obtain food or drink (except water), or if any person not belonging to the jury shall hold conversation with any of the jury, every person and officer so offending shall be punished for a contempt of court by fine or imprisonment, or both, in the discretion of the court. These provisions show the great care and solicitude of the general assembly to secure to every person a fair and impartial trial; and it is eminently proper, as in many cases the accused is imprisoned, and it is not in his power to protect his rights from being prejudiced by undue influences. It should ever be the care of courts of justice to guard human life and

Syllabus.

liberty against being sacrificed by public prejudice or excite

ment.

The jury should be entirely free from all outside influences from the time they are impaneled until they return their verdict, and it is accepted and they discharged; and the legisla ture have determined that the provisions of this statute are necessary to accomplish the object. It is a provision easily complied with, and one member of the court, at least, has never in practice seen it dispensed with, except in cases of misdemeanor. The provisions of the statute are clear, explicit and peremptory. We know of no power short of its repeal, to dispense with this requirement. In the case of McIntyre v. The People, 38 Ill. 514, it was held to be error in a case of felony to omit to swear the officer having charge of the jury. For this error the judgment of the court below must be reversed and the cause remanded.

Judgment reversed.

ELIZABETH MCFARLAND et al.

v.

EMILY J. CONLEE et al.

1. TRUST AND TRUSTEES-resulting trust. A cestui que trust has no preferable equity above any others in premises purchased by a trustee, where it appears that no part of the trust funds were invested in such purchase.

2. SAME. A invested trust funds in the purchase of certain premises, but only acquired an equitable title thereto, and afterward his widow, with her own funds, acquired the legal title to the same, and exchanged them for other premises. Held, in a suit brought by the cestui que trust, to subject these premises to the payment of her claim, that the equities of the parties were equal. That the one holding the legal title could pay off the claim of the other, which, if she refused to do, and the premises were not susceptible of division, they should be sold, and the party holding the legal title be first satisfied.

WRIT OF ERROR to the Circuit Court of Washington county; the Hon. SILAS L. BRYAN, Judge, presiding.

The facts in this case are fully stated in the opinion.

Opinion of the Court.

Mr. J. M. DURHAM, for the plaintiffs in error.

Messrs. HAY & HOSMER, for the defendants in error.

Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:

This was a bill in chancery in the Washington Circuit Court, exhibited by Emily J. Conlee, and Andrew J. Conlee, her husband, against Elizabeth McFarland and William McFarland, her husband, to subject certain real estate in the town of Richview, in that county, held in the name of William McFarland, to the claim of complainants, on the allegation that the same was purchased and improved in part with moneys belonging to the complainant, which defendant Elizabeth's first husband, Gilbert S. Hinds, while guardian of complainant Emily, invested in such real estate.

The defendants answered, denying the most material allegations of the bill, and, on replication filed and proofs taken, the court granted the prayer of the bill, and found $316 had been received by Gilbert S. Hinds, while guardian of complainant Emily, and declared, if the same was not paid in ninety days, the premises should be sold at public vendue, to raise the money. The cause is brought here by writ of error, and various errors are assigned.

In the first place, it nowhere appears from the decree, that this money received by Hinds was invested by Hinds in these premises, and, if not, the complainant Emily had no equitable rights therein. The decree shows simply, that Hinds, as her guardian, had received of complainant's money the amount found due, which is far from sufficient to clothe her with a preferable equity, to the exclusion of all others, in the premises in question. The testimony goes to show most clearly, that, although Hinds in his life-time contracted for these premises, or for other premises for which these were received in exchange, and erected a dwelling house thereon before his death, yet he had made no payment on the lots, and his widow, now Elizabeth McFarland, paid the purchase money therefor out of her

Opinion of the Court.

own funds, and took the deed therefor in her own name, he, Hinds, having only a title bond for the premises, which had become forfeited, and Lowe, the holder, was offering to sell the lots to any one who would pay the purchase money, being $200, which was paid by his widow, who afterward intermarried with William McFarland, having before that exchanged the premises bought of Lowe with one Shepley, for other premises which this bill seeks to subject to the payment of this claim, and which complainant had conveyed by a proper deed to her husband, William McFarland, on the 14th of August, 1865.

But, admitting this money was invested by Hinds in these premises, it is very apparent from the testimony the money of defendant Elizabeth was also, and she has the legal title. Her equity is equal to that of complainant, and she has the legal title; therefore, it seems just that defendants should have the preference, and right to relieve the premises from this claim of complainants by paying the amount due to Emily. Should defendants decline so to do, then, if the property is not susceptible of division, it should be ordered to be sold, and the money advanced by defendant Elizabeth, to procure the legal title, with interest, be first paid to her. The claim of defendant Emily should then be paid with interest, and the overplus, if any, paid over to Elizabeth McFarland, the defendant. A reference ought to be had to the master, to ascertain the amount of interest due on each claim, stating that of Elizabeth McFarland at $200 as paid to Lowe, and when paid receive proof, as the record fails to show it. The claim of defendant Emily will be stated at $316, and interest computed from the date of the decree.

The finding of the court of the amount due Emily was doubtless based on the testimony of Fingal Hinds, the brother of Gilbert Hinds, the guardian, and we have become much impressed by that testimony. He states, his brother told him in his sickness, and when he did not expect to live, that there was about $300 of Emily's money invested in the house in which he was then living. He said, as soon as he got well he would