Mouroe vs. The State of Georgia.

themselves, will not be a sufficient ground for setting aside the verdict either in a criminal or civil case, where the Court are satisfied that the party complaining has not, and could not hare sus tained any injury."

Mr. Justice Parker, in commenting on the positions thus laid down, thinks, and so we think, there is another principle which should also be applied in a criminal case, which is, that where there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of a presumption that the irregularity has been prejudicial to him; and that it is incumbent upon the government to show, and that beyond a reasonable doubt, that the prisoner has suffered no injury by the departure from the forms ordinarily pursued in the administration of justice. The prisoner is entitled to a compli ance with the forms provided by the law, to secure him a fair and impartial trial; and if these grounds are neglected or disregarded, he is at least entitled to require at the hands of the govern. ment, satisfactory evidence that he has not received detriment by reason of such neglect, and is not to be put to show affirmatively, that such departure from the customary mode of trial has been the probable cause of conviction.

Let us now apply these principles to the present case.

Heald, one of the bailiffs, after reminding the jury that they had been forbidden, strictly, by the Judge, to speak to any bodyleft them in charge of the other bailiff, while he went for candles. On his return, he looked out of the window of the room where they were assembled, and saw two of the jury out at the end of the house, conversing so low that he could not tell what they were talking about. One of them was captain Blake. He requested him to come in-he replied that he would presently, or something to that effect, and in a few minutes they both came in. The deponent walked backwards and forwards before the front door of the room, there being two open doors to it, one in front, on the street, and the other in the rear, opening on a corn-field; some of the jury called for water; deponent went into the room and handed out the bucket to the other bailiff in attendance, who remarked that there must be somebody talking behind the house. Deponent went to the back room, and saw two of the jury coming; Blake was one of these jurors; and when he came in, another juror remarked that he wanted to go out and consult with

Monroe rs. The State of Georgia.

him, too. They retired through the back door, out of the view of the office. Deponent then went out himself, and watched from behind a china tree, but saw nobody during the minute or two that he remained. He then walked round the house and went back to the gate opposite the front door, and sent Levining, the other bailiff, to order somebody off, once or twice. Levining states that the building in which the jury deliberated, was a private house, having two rooms, and no upper story—one front, and one back door. That during the consultation, and before the verdict was made up, the jurors, one, two, and as many as three at a time, left the room through the back door of the building, there being no shutter to the front door, and the deponent thinks to neither; that they were in the dark, and unattended by any sheriff, deputy sheriff, or bailiff, and that they were absent for some fifteen, twenty, and thirty minutes at a time. That at the commencement of their deliberations, some of the jury declared they never would find the defendant guilty, others said equally positive, they never would acquit. On one occasion during said deliberations, one of the jurors who had expressed himself decidedly in favor of the innocence of the accused, and one who had expressed himself as strongly the other way, left the jury-room and went out, where witness saw them conversing secretly, but did not hear or understand any thing they said; while they were thus holding their private consultation in the dark, which lasted some twenty or thirty minutes, another juror joined them, when one of them, and he thinks Mr. Blake, who was in favor of convicting the prisoner, told the other juror to go back, which he did; at the expiration of the time above stated, they returned and the juror who went out favorable to the defendant, agreed to sign the verdict of guilty. A part of the time they were out of sight of deponent; there were a number of persons about and around the jury-room, who were not jurors, and whom this deponent was exerting himself to keep away. Two of said ju ̈ors, so lurking about said jury-room, to wit: Alfred Kersey and William Korkadale, cursing this deponent, and swearing they were in the public street, &c. &c. He further states, that during their deliberations, all the jury were hardly ever in the room at the same time. There was less calm deliberation, and more confusion and excitement than he ever saw before in a jury-room, and especially among many or several of the jurors, some of them deporting

Monroe rs. The State of Georgia.

themselves in such a manner, as to elicit the remark from one of the bailiffs, that they resembled bees starting to swarm.

I will not comment on those affidavits which are wholly uncontradicted. The bailiffs to whose custody this jury was committed, appear to have used all diligence to keep them, as was their duty. The probability is, that they have been unable to protect the prisoner from the hostility of his enemies. That malign influences were brought to bear upon the jury, there can be no doubt. It is not certain that any one spoke to them during their deliberations, upon matters pertaining to the trial. It is difficult to resist the conviction, however, that persons "lurking" about the place, spoke in their hearing upon the subject. And this is equally as bad. But even if this were not so, if we were satisfied that no improper bias had been received from any extrinsic source, still there is another feature in this statement which claims the gravest consideration. Law, reason, and public justice require that the jury should confer together, touching the guilt or innocence of the prisoner. And it would be establishing a most dangerous precedent to allow these secret consultations, by two or more jurors at a time, in separate groups and out of the presence and hearing of their fellows, to take place. Who can tell what influences of argument, persuasion, or otherwise might not be brought to operate, under these circumstances. One overpowering mind, in this way, would soon master and subdue the timid and doubtful, who, although individually weak and wavering, might muster courage to resist when united and associated with their fellows. False motives and reasons might be thus urged, which, if submitted to the whole pannel, would be readily answered, and their influence averted. I have good ground for believing that unanimity was obtained in the rendition of a verdict, in one of the most exciting case, that was ever tried in this State, by a juror being threatened, apart from the body, with penitentiary punishment for an act, which, if an offence at all, could only have been resisted with a much slighter penalty. We should feel strongly inclined, therefore, to set aside the verdict for this reason, if it stood alone. Where life and liberty are involved, the jury should be kept together from the commencement of the trial until its final termination.

It being made fully to appear then, that there has been an irregularity in the trial of this case by the unauthorised separation

Kollock and others vs. Jackson.

of the jury, and the State having made no attempt to show that this could not have been prejudicial to the prisoner; on the contrary, it being rendered extremely probable that he has sustained injury from the misbehavior of the jury, the verdict must be set aside, and a new trial awarded. In the language of an eminent and virtuous judge, on a similar occasion, God forbid that the prisoner should be sent to pray of the mercy of the Executive, a reprieve for an offence of which he has not been legally con victed.

Judgment reversed.

No. 15.-GEORGE J. KOLLOCK, et al. plaintiffs in error, vs. JoHN JACKSON, defendant.

[1.] Possession of the property is necessary to create the factor's lien, but that may be either actual or constructive.

[2.] In Georgia, judgments bind all the property owned by the defendant, from their date, as well that subsequently acquired as that owned at the time of signing the judgment; and the lien of judgments has precedence over, and is paramount to the lien of a factor upon property in his possession. [3.] A judgment lien does not vest the legal title of the property of the defendant in the plaintiff, but it gives him a special interest in it, which may be asserted and realized by levy and sale, to the exclusion of all adverse junior liens and incumbrances, and a perfect title to the property passes to the purchaser at such sale, whether the creditor or another, through the sheriff's deed, which relates back to the date of the judgment.

In Equity, in Baker Superior Court, tried before Judge WARREN, June Term, 1848.

The facts are found in the opinion of the Court.

HINES & HINES, LYON & CLARK, and E. R. BROWN, for plaintiffs in error, cited and commented on the following authorities: 1st. As to possession. Story on Agency, 373, 374. 2 Kent, 637, 638. 1 Starkie, 330. Water vs. Birch, 6 T. R. 142. 6 Wheeler's C. L. 449. 2 Tomlin's Law Dict. 443. Kinlock vs. Craig, 3

Kollock and others vs. Jackson.

T. R. 57. Cross on Lien, Russell on Lien, 32. Montague or Lien, 22.

2d. As to factor's lien. 1 Peters, 443. 6 Ibid, 505. 12 Wheat. 506. R. M. Charlton's Rep. 72, 325. 8 T. R. 99. 3 Wheeler, Prince, 476. 1 Kelly, 266. Lambert vs. Paulding, 18 J.

450.

R. 311. 1 Stark, 123. 2 Atk. 113. 7 East, 5.

SULLIVAN, for defendant in error.

By the Court.-NISBET, J. delivering the opinion.

The complainant, John Jackson, entered into an agreement with one of the defendants, George H. Johnston, by which the latter was to consign his crop of cotton to the former, at Albany in Baker county; Jackson was to furnish goods to Johnston, and make advances in cash, and the cotton was to be held as security for both; subsequently, the agreement was so modified as to authorise the delivery of the cotton at Newton instead of Albany, and it was there delivered to a person by the name of James Johnson. Goods were furnished by Jackson to George H. Johnston, and advances made, according to the agreement. Subsequently, the cotton was levied upon by executions against George H. Johnston, and sold, and the money claimed by creditors bolding judgments older than the advances made by Jackson, and older than the judgments which brought the money into Court. This bill is filed by Jackson against George H. Johnston and his judgment creditors, to have this fund paid to him, on account of his lien as factor.

[1.] Three points are made in the case, and the first that I shall notice, arises out of the following instruction of the Court to the jury: "If the crop of cotton of 1845 was delivered at Newton, at the ware-house of James Johnson, so that the complainant could control it, then the lien thereon, if delivered in pursuance of the previous understanding, as proven, was perfect for the advances made by Jackson." This charge is to be taken in reference to the testimony. Whether the cotton was, in fact, delivered at Newton, in pursuance of the agreement between Jackson and George H. Johnston, or whether delivered there by George H. Johnston to Jan.es Johnson, as his agent, irrespective of that agreement, was a question mooted before the jury, and left somewhat in doubt by the testimony. The settlement of that question