OPINION of the Court, by
There appears to have been one new trial “granted, in this case at the instance of Herndon, and after a second verdict was found against him-, he again applied for a new trial, on the grounds of his having discovered, since the finding of the verdict, that one of the former jury composed part of the latter ; hut the court refused his application; and the only question for the decision of this court is as to the correctness of the opinion ofrhat court.
There is no doubt hut what the j uror was incompetent, and might have been challenged before he was sworn: and as that cause of challenge was not known to the at-torftey of Herndon, until after the finding, of the verdict, (Herndon himself not being present) according to- the ease of M’Kinley vs. Smith, Hard. Rep. Í67, and Pierce vs. Bush, (vol. 3, 347) it furnished a good cause for a new trial. The court, therefore, upon the affidavit of the attorney proving the discovery, should have awarded a new trial.
The judgment "must be reversed with costs, and the cause remanded to the court below for a new trial.