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estates of the respective obligors, and, on a bill to account, it was sufficient to make them the parties, regardless of the heirs. If the administrators have the decree to pay, they may be able to coerce the heirs to refund if they had any thing by descent. The naines of the heirs were disclosed, but their places of residence were not, and could not be ascertained without such difficulty as these wards should not be required to encounter.
The decree of the Circuit Court is affirmed, this being the only point made.
EUGENE RUSSELL et al.
44 508 187 1259
THE PEOPLE OF THE STATE OF ILLINOIS.
TRIAL — separation of the jury. If a jury, in a capital case, during the progress of the trial, separate without the authority of the court, their verdict will be set aside, where it appears, that, in consequence of such separation, they were exposed to improper influences, which might have operated to the prejudice of the accused in such manner as to affect their verdict.
WRIT OF ERROR to the Circuit Court of Effingham county ; the Hon. Hiram B. Decius, Judge, presiding.
This case is sufficiently stated in the opinion.
Messrs. COOPER & Wood, for the plaintiffs in error.
Mr. JUSTICE LAWRENCE delivered the opinion of the Court:
This was an indictment for murder, on the trial of which the plaintiffs in error were found guilty and sentenced to be hung. There was a motion for a new trial, which was overruled. On the hearing of this motion, it was clearly shown, that, during the progress of the trial, one of the jurors separated from the other jurymen, and went about the streets and railroad station in the company of other persons withont being
Opinion of the Court.
in charge of an officer; that another went to his residence unattended by an officer, and remained there more than an hour in the company of other persons; that another went unattended to a public debate ; that another went to the house of an acquaintance, and conversed with him about the case and the evidence, no officer being present. It is difficult to understand how the officer in charge of the jury can have been so remiss in his duties. It is not claimed that this separation was by authority of the court. The affidavits of the jurors were taken to show that while thus separated they neither heard nor saw any thing that influenced their verdict, but one of them admits he had conversed about the case and the evidence with the person whose affidavit had been taken. He thinks he heard nothing prejudicial to the prisoners. The rule laid down in McKinney v. The People, 2 Gilm. 553, and Jumpertz v. The People, 21 Ill. 411, is, that the court must grant a new trial if the jury separate, “unless such separation was the result of misapprehension, accident or mistake on the part of the jury, and under circumstances to show that such separation could by no possibility have resulted to the prejudice of the prisoner.” This is not shown in the present instance, and the case is a far stronger one for a new trial than was that of Jumpertz. The jurors may have honestly believed they heard nothing outside of the jury-box which influenced their verdict, yet they were greatly exposed to external influences, and these influences might have operated insensibly to themselves, especially in regard to the juror who had the conversation with a third person.
Under the authority of the cases above quoted we must reverse the judginent and remand the case for a new trial.
DELIVERY to one member of a firm - effect of. Where a firm composed of two members entered into an agreement to purchase a steamboat, and a third party guaranteed the payment of the notes given therefor, and the boat was afterward transferred by bill of sale and delivered to only one member of the firm, and on the trial the evidence tended to show that the transfer and delivery was in accordance with, and in fulfillment of, the original contract of purchase, it was held, that this was a transfer and delivery to the firm and not to the individual, and the guarantor was liable.
WRIT OF ERROR to the Court of Common Pleas of the city of Cairo; the Hon. John H. MULKEY, Judge, presiding.
This was an action of assumpsit brought in the Court of Common Pleas of the city of Cairo, at the January Term, 1867, by Thomas Gaff, James W. Gaff and George W. Cochran, composing the firm of Gaff, Cochran & Co., and against Joel S. Byington, upon the following note, given in part payment for the steamboat “Ella" by the firm of Musson and Culley and guaranteed by Byington: “$2,500.
CAIRO, June 23, 1865. Seven months after date, for value received, we or either of us promise to pay Messrs. Gaff, Cochran & Co., or order, the sum of twenty-five hundred dollars, payable at the First National bank at Cairo, with interest at six per cent until due, and if not paid at maturity ten per cent to be paid thereafter. Two 50 cent and one 25 cent)
R. C. CULLEY,
J. W. MUSSON." Indorsed :
"For value received, I guaranty the payment of the sum of money and interest in the within note specified, and agree to pay the same according to the tenor and effect of said note if the same is not paid by the said Rodney C. Culley and James W. Musson.
J. S. BYINGTON."
Statement of the case.
Defendant's second amended plea is similar to the third amended plea, except that it alleges that the transfer of the boat to Rodney C. Culley was without defendant's knowledge or consent, and in fraud of his rights as guarantor, by reason of which he was released and wholly discharged.
In his third amended plea defendant alleges actio non, because he says that the note and guaranty sued on in plaintiffs' declaration were given for part of the consideration of the purchase money of the steamboat "Ella,” her fixtures and furniture, an American vessel of over twenty tons burden, to wit, to the amount of $2,500, to be sold and delivered as hereinafter mentioned, and for no other or different consideration or purpose whatever; and that the said defendant only as guarantor and exclusively for the accommodation of the firm of Musson & Culley (a firm composed of J. W. Musson and R. C. Culley) hereinafter mentioned, and without any interest in the consideration of said note whatever, he, the said defendant, executed and delivered the same as guarantor, of all which the said plaintiffs then and there had notice. And the said defendant avers, that, although the said note is signed by the individual names of the said Musson and Culley, yet, in fact, the said note sued on was, at the time it was made and guaranteed as aforesaid, the partnership note of the said firm of Musson & Culley, and was made and delivered to said plaintiffs as one of the notes for the purchase of the aforesaid steamboat, her fixtures and furniture, on the 23d day of June, A. D. 1865, at, etc., aforesaid, then and there bargained to be sold by the said plaintiffs to the said firm of Musson & Culley, by their contract in writing of that date, to wit:
'For and in consideration hereinafter mentioned, we have this day bargained and sold to J. W. Musson and R. C. Culley, the steamboat . Ella,' her fixtures and furniture, now lying at this port; price of said boat, fixtures, etc., is seven thousand dollars, to be paid as follows:
“Two thousand dollars in three months; twenty-five hundred dollars in five months, and the balance of twenty-five
Statement of the case.
hundred dollars in seven months from this date. Notes for the above amounts to be given bearing six per cent interest with approved security, and payable at the First National bank at Cairo.
“The said J. W. Musson and R. C. Culley, party of the first part, hereby bind themselves to execute the above named notes as herein set forth. [Int. Bere Stamp.] Witness our hands and seals, this 23d day of
June, 1865, at the city of Cairo.
Per GREEN. (BRAL)
By R. C. CULLEY.” (SZAL.] And the said defendant further avers, that, relying upon the said contract for a sale of said boat, her fixtures and furniture, to the said firm of Musson & Culley, and that in pursuance thereof the said boat, her fixtures and furniture, would be transferred and conveyed, as an American vessel, to the said firm of Musson & Culley, and that when so conveyed and transferred would become the partnership property of the said firm of Musson & Culley, he, the said defendant, was induced, relying upon the good faith and execution of said contract by said plaintiffs, by the transfer and conveyance of said boat to the said Musson & Culley according to the tenor and effect of the aforesaid agreement for a sale of said steamboat to said firm of Musson & Culley, to guarantee said note for the said last mentioned firin. And the said defendant avers, that, after the said note was guaranteed by the said defendant as aforesaid, and delivered to said plaintiffs, and before the said plaintiffs had transferred and conveyed said boat, her fixtures and furniture, or either or any part thereof, to the said firm of Musson & Culley, the said plaintiffs, well knowing the premises, afterward, to wit, at St. Louis, Missouri, on the day of October, A. D. 1865, did abandon said contract of bargain for the sale of said boat, her fixtures, etc., to said firm of Musson & Culley (and never did, in whole or in part, in any manner, convey the same to said Musson & Culley), but, on the contrary