Pierce v. Bush

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.