John Hays v. Andrew Barnett, 1 Sneed 290

The fourth error states that the jury was sworn to try the issue joined, when the plea of the defendant and the joinder of the plaintiff were not filed. Whereas, it appears from the record, the issue (if it may be called one) was made up before the declaration was filed. This error, therefore, being very imperfectly and improperly stated, it is doxxbtful whether any notice ought to be taken of it. All the other errors, except the last, are unimportant.

On this it may be proper to observe, that as it is of great coixsequence to society that the trial by jury should be preserved in the highest possible degree of purity, and that evexy act which seems only to have a tendency to corrupt it ought t<b be carefully guarded against, the court, on the authority of the cases cited from 2 Morgan’s Essays, erred in rejecting the defendant’s application for a new trial on the second ground stated in the bill of exceptions.

Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the Mercer circuit cpurt for new proceedings to be had therein, to commence at suing out the writ, and that the plaintiff recover of the defendant his costs in this behalf expended, which is ordered to be certified to the said court.