Pierce v. Bush

May 26, 1814
Reporters:
, ,
Before:
Owsley

OPINION of the Court, by

Judge Owsley.

— This writ of error is brought to a judgment obtained by Bush in an action of trespass prosecuted against ‍‌​‌‌‌‌​‌‌​​​​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​​‌‌​​​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​‌‌‍him in the court below by Pierce. A motion was made in that court for a new trial, on the grounds that one of the jurors, before the trial, had observed his mind was made up against Pierce ; and the plaintiff made oath he knew nothing of the juror having formed ‍‌​‌‌‌‌​‌‌​​​​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​​‌‌​​​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​‌‌‍an opinion before the trial, and produced the affidavit of Joab Watson, proving the declarations of the juror. . The court below rejected the affidavit of Watson, and overruled the plaintiff’s motion for a new trial. And the question made for the decision of this court, is whether or ‍‌​‌‌‌‌​‌‌​​​​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​​‌‌​​​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​‌‌‍not a new trial should have been granted ?

We are of opinion it should. It is clear the groupcjs upon which the new trial was asked, furnish a good cause of challenge against the juror ; but as it appears from the plaintiff’s affidavit he was ignorant of the ‍‌​‌‌‌‌​‌‌​​​​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​​‌‌​​​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​‌‌‍cause of challenge when the jury was sworn, according to the case of M‘Kinly vs. Smith, in this court, Hard. Rep. 167, he should have been relieved by a new trial. The court below erred, therefore, in not admitting the affidavit of Watson to prove the declarations of the juror, and inf ‍‌​‌‌‌‌​‌‌​​​​‌​‌‌​​‌‌‌​‌​‌​​​‌​​‌​‌‌‌‌​‌​‌‌‌‌‌​​​​​​‌‌​​​​​‌​‌‌​​​‌‌‌‌​​‌​‌‌‌‌‌​​​‌‌​‌‌​‌‌‌‌‌​‌‌‍not granting a new trial.

The judgment of that court must be reversed with costs, and the cause remanded to that court for a new trial.