Deming v. Hurlbut
2 D. Chip. 45
Vt.
1824
Check Treatment
Williams J.

delivered the opinion of the Court.

In this cause the plaintiffs move for a new trial on certain exceptions to the charge of the Court to the Jury, and also for that one of the Jurors formed and expressed an opinion, as to the merits of the cause previous to the trial.

It will be unnecessary to decide upon the exceptions to the charge, as the Court are clear that on the last ground a new trial must be granted. I should be unwilling to disturb the verdict in this case, as the facts were very fully investigated, did I not consider the law as fully settled. It is in proof that the Juror, previous.to the trial, declared that it was his opinion that the defendant ought to prevail, and that he was sometimes on the Jury, and if he should be thereafter, when this cause should come on to be tried, he could not give a verdict against the defendant. It is admitted that this was a good cause of challenge ; and it is laid down in Swift’s Digest, 775, that where the party when the Jury was empanelled was ignorant of a principal challenge to a Juror, and discover it after verdict, this may be a ground to set aside the verdict. It is not necessary to go this length in deciding the present question ; and, indeed, a decision, the 4th Dallas, Hollingsworth v. Duane, seems to be at variance with it. Without, therefore, giving any opinion whether the discovery of a principal challenge to a Juror after the trial, which the party, in the use of due diligence, might *49have been apprised of before the Jury were empannelled, or the discovery of the want of qualification of a Juror, which does not affect his integrity or ability, would be a sufficient reason for set. ting aside a verdict, the Court are clearly of opinion, in the case under consideration, from an examination of all the authorities that the Juror having declared that he could not give a verdict against the party who prevailed, is a sufficient reason for setting aside the verdict. The cause cannot be said to have had a trial by a disinterested and impartial Jury, when one of them had before the hearing of the cause made this declaration, which must have been known to the defendants, of which the plaintiffs had no knowledge. 2 Salk. 645, Dent v. the Hundred of Hertford. 1 Strange 640, Parker v. Thornton. Plow. 118. 3 Dallas, 515, United States v. Ives, are strong authorities in favor of the motion. The verdict must therefore be set aside, and a

New trial granted.

[The Chief Justice did not sit in this cause. Judge Aikens was not present at the hearing, but he assented to the opinion.]