
    Benjamin Hilton vs. Joseph Southwick.
    A promise to pay upon the performance of an act by which the party is injured, becomes binding when the act is performed.
    If the payee of a negotiable note give his assent by his signature to an assignment, wherein provision is made for the payment of tile note, or of a part of it, tliis does not destroy the negotiable character of the note, or destroy a contract made in contemplation of a sale of it, and it may be afterwards legally transferred, although the effect may be to make the signature to the assignment ineffectual, unless adopted by the indorsee.
    If there appears the least attempt on the part of the prevailing party to seek and influence a juror who tries the cause, the verdict will be sot aside.
    Where the jury were dismissed from Saturday evening until Monday morning during a trial, and the prevailing party conveyed a juror, living on the road passed by the party, home in his wagon several miles on Saturday evening, and where no conversation relative to the cause took place; it was held, that although the conduct was indiscreet and incorrect, and if persisted in after a knowledge of its impropriety, would afford sufficient cause for a new trial, yet that the verdict in this case might bo regarded as having been found by a jury free from improper influences, and that judgment might be rendered thereon.
    Assumpsit on an agreement, of which a copy follows. “ July 16, 1829. Whereas Benj. Milton is about transferring a note he has against me for $2524,34, I hereby agree that in case I obtain a discount on said note in the payment, that I will account and pay to said Milton the amount which I get discounted thereon.
    
      “ Joseph Southwiclc.”
    
    It appeared at the trial before Shjcpley J. that the plaintiff, in April, 1829, bad sold to the defendant a quantity of logs, and had taken his note for $2524,34, payable half in June, and half in September, in payment therefor. Before the first payment fell due, the defendant became embarrassed and assigned the logs thus purchased, with a large quantity purchased of others, to assignees in trust to pay or apply each lot of logs to the payment of the note or notes given for them, either by returning the logs and taking up the notes, or by manufacturing them and applying the proceeds, less the expenses, in payment of the notes. The plaintiff was named in the assignment. Before bo had given his assent to it by signing it, on July 16, 1829, the contract declared on was made. On the following day, July 17, the plaintiff sold the note at a discount of 33& per cent., and on that day signed the assignment. Whether that sale was made to the defendant through the agency of Homans and Brown, the assignees; or to them on their own accountor to Homans alone for his sole account; was a subject of controversy between the parties, and much testimony was introduced on each side, which was submitted to the jury. It was also contended that if Homans, or Homans and Brown, purchased the note on their own account, the defendant obtained a discount in paying it, and this was denied, and the evidence on this question was submitted to the jury.
    The counsel for the defendant contended at the trial: —
    1. That the plaintiff could not recover because the contract was not binding for want of a consideration. This objection was overruled, and the proof in relation to the facts admitted.
    2. That if the defendant himself purchased the note by the agency of others, he did not thereby obtain a discount within the meaning and terms of the contract, and the plaintiff could not recover. This objection was overruled.
    3. The plaintiff by signing the assignment on July 17 repudiated and annulled the contract of July 16, declared on, and could not recover. This objection was also overruled; and the jury were instructed, that if in other respects the plaintiff had proved his case, he might recover, notwithstanding these objections. The verdict for the plaintiff was to be set aside, if the ruling or instuctions were erroneous.
    After the verdict, at the same term, the defendant filed a motion to set aside the verdict, because it was against evidence, and because “the said Hilton discharged a passenger whom he had agreed to carry home on Saturday evening, while this cause was on trial, it having been commenced on Saturday in the afternoon, and terminated the Tuesday next following, and that said Hilton after discharging said passenger took into his wagon, and carried home to Madison, one of the jurors who tried said cause. And also that Samuel H. Hilton, who was a son of the plaintiff and a witness in said cause, was seen walking arm in arm with another of the jurors after the cause was opened for trial, and before its termination, and did converse with the juror while so walking.”
    
      The juror testified in substance, that he came down t'o Court with his own horse, and sent it home, and it had not come back'; that on Saturday evening he wishéd to return home, and inquired if there was any way of his getting home, and Hilton’s son said his father, the plaintiff, would carry him, and that" he did ride home with Hilton, and that he lived on Hilton’s road home, and within about two miles of him. The juror stated, that he could recollect no conversation whatever with Hilton at that time, but that if any thing had been said about the casé on trial, he thought he must have recollected it, as he remembered that the Judge cautioned them against conversing, or hearing conversation, on 'the subject. It also appeared, that the same juror, before the cause came on for trial, during the term, went home with the son of the plaintiff, who was a witness, and staid over night with him.
    
      Wells and H. A. Smith, for the defendant,
    argued in support of the objections made at the trial, and cited 4 Johns. R. 84; 12-' Johns. R. 190; 3 Johns. R, 534 ; M’ Culloch v. Eagle Ins. Co. 1 Pick. 278; 3 T. R. 684. On the argument in support of their motion for' a new trial, they cited Cottle v. Cottle, 6 Greenl.' 140; Benson v. Fish, 6 Greenl. 141; Sárgent v. Roberts, 1 Pick. 337.
    
      Boutelle and Tenney argued for the plaintiff,
    and cited 12' Johns. R. 190, 397; 1 Caines, 584; Train v. Gold, 5 Pick. 380 ; Robertson v. Gardner, 11 Pick. 150; New-England Bank v. Léwis, 8 Pick. 113; Kemjdon v. Coffin, 12 Pick. 129; Williams College v. Danforth, 12 Pick. 541; 1 Sound. 211, note 2; 2 Sound. 137; 1 Com. on Con. 16.
   The opinion of the Court was drawn up by

Sherley J.

The contract recites, that the plaintiff was about' transferring the note, and the defendant promises to account to him for what he should get discounted in the payment of it. That it Operated to induce the plaintiff to sell, and that it was so designed,' there can be little doubt. The plaintiff on. the following day sold' the nóte at a large discount.

A prómise to pay upon the performance of an act, by which' the party is injured, becomes binding, when the act is performed/ Train v. Gold, 5 Pick. 385 ; Kempton v. Coffin, 12 Pick. 129. The contract in substance provides, that if the defendant was not obliged to pay all that should be due, he would pay sufficient to the plaintiff to make up the whole amount. It does not provide, that the discount should be obtained in any particular mode W make it obligatory on the defendant to pay it to the plaintiff. By" signing the assignment the plaintiff did not destroy the negotiable character of the note, which might afterward be legally transferred. The effect might be to make his signature to the assignment ineffectual unless, adopted by the indorsee, but not to destroy a contract made in contemplation of a sale.

There is a motion for a new trial arising out of the alleged improper conduct of the plaintiff in his attentions to one of the jurors. In the case of Cottle v. Cottle, 6 Greenl. 140, where the party conveyed a juror to the house of his friend and entertained him, it appears to have been done not as an act of ordinary and neighborly kindness, while in this case, although under the circumstances indiscreet and incorrect, it does appear to have been of that character. In that case, it appears from the remarks of the Judge in delivering the opinion, that the party had conversed with the juror respecting the suit, for it is said, “he sought his society, and attempted to impress his mind with the justice of his claim.” And that the party sought the juror in an unusual manner. These considerations were justly regarded as sufficient to require the verdict to be set aside. In this case the juror must be understood in his testimony as denying that he had any conversation with the plaintiff about the action, and as stating that the occasion of his riding home with the plaintiff was, that he had ordered his horse to be sent to him, that it had not arrived when the jury was discharged for that day, that he inquired for' a passage and was- informed by the plaintiff’s son, that his father could carry him home-. Although this took place while the action was on trial, the plaintiff dees not appear to have sought for the juror, or to have conversed with him respecting it; and he did not go out of his own way to accommodate the juror. And yet the exercise of these acts of kindness under sueh circumstances are suited to produce suspicion that the juror had been influenced by improper motives and the Court must feel a want of perfect confidence as much to be deplored by it, as by the losing party. It has however come to the conclusion, not without doubt and hesitation, that the verdict may be regarded as found by a jury free from improper influences. But if such practices are continued, either directly or through the intervention of relatives or agents, they will afford just reason for the conclusion, that there may be an undiscovered influence which must require verdicts found under such circumstances to be set aside. If there appeared the least attempt on the part of the plaintiff to seek and influence the juror, the verdict would be set aside. But without any such attempt, there does not appear to be sufficient cause for it.

Judgment on the verdict.  