Follin v. Foucher

Martin, X, delivered the opinion of the court. In this case, after the trial had proceeded before the jury, and part of the evidence had been received, a juror was discharged and another, one substituted and sworn in his place. The plaintiff’s counsel insisted on opening the case , again, but the court refused to permit him to do so, and a bill of exception was taken. We are clearly of opinion that the court should have suffered the counsel to open the case. What had preceded the swearing in of the last juror was a mis-trial. As soon as he was sworn the trial 'began de novo and ought to have been commenced by the plaintiff’s counsel opening his case •to the jury. Code of Practice, 476, 546. It is, therefore, ordered, adjudged and decreed,' that the judgment of the Parish Court be annulled, avoided and reversed, the verdict of the jury set aside, and the case remanded for further proceedings according to law; the defendants and appellees paying the costs of the appeal.