
    FOLLIN vs. FOUCHER ET AL.
    APPEAL FROM THE PARISH COURT, FOR THE PARISH AND CITY NEW-ORLEANS.
    Where a juror is discharged and another one substituted and sworn in his place, after the trial has commenced and part of the evidence introduced, the plaintiif is entitled to open his case again to the jury and the trial to proceed de novo.
    
    This is an action instituted by the plaintiif against the defendants A. • Foucher and M. Andry, as endorsers on the following promissory note: ■
    “ Le quinze Mai prochain je payerai it Vordre de Mr. ¿2. Foucher, it. la Banque Consolidée, cinq mille piastres, valeur regue.”
    
    
      “Nouvelle-Orléans, le 2 Novembre 1833.”
    “A. FOUCHER, Jr.
    Endorsed. “A. Foucher,” Manuel Andry,1 Ch. Follin.”
    The defendants Foucher and Andry severed in ' their answers, but both of them disavowed their signatures on the back of the note, and averred they were forged and counterfeited.
    The plaintiif filed a supplemental petition, alleging that' the endorsement of M. Andry is genuine, but even if proved1 not to be genuine, said Andry is liable, because he well knew that Antoine Foucher, Jr., was in the habit of forging endorsements in his (Andry’s) name on notes drawn by him, and that he, the said Andry, permitted this use to be made of his name.
    Upon these pleadings thé parties went to trial. The cause was put before a jury and after it had proceeded and a portion of the testimony introduced, one of the jurors was discharged by order of the court for cause shown on record, and another' substituted in 'his place and sworn. The plaintiff’s counsel insisted on opening the case de novo. The court refused, and ordered the testimony which had been taken down to be read to the jury; allowing, however, if preferred by the parties, the witnesses who were still in court, to be re-examined viva voce by the party who introduced them. The plaintiff’s counsel excepted to the opinion and decision the court. The trial proceeded to its close, when the jury . returned a verdict for the defendants. • From judgment rendered thereon, the plaintiff appealed.
    
      J. Slidell, for plaintiff and appellant.
    1. The judge erred in discharging the juror under the circumstances stated in the bill of exceptions. Having been sworn without objection, examination or challenge, he could not be discharged without the consent of both parties. Code of Practice, article 499, 507,509 514, 515. 3 Bacon's Jlbr. 764. 7 Cranch, 290. 4 Blackstone's Commentaries, 346, 2 Bay's Rep., 150.
    
      2. The judge erred in compelling- plaintiff to submit the testimony which had been taken before the juror was withdrawn; he should have been permitted to commence his cause de novo. A jury is in its nature one and indivisible. Any change in its constitution by the substitution of a different individual for a juryman withdrawn, renders it a new jury. • ,
    3. The testimony shows conclusively, that the defendant knew that his endorsement had been forged by Foucher, at a period anterior to that at which plaintiff became possessed of the note sued on, and that when applied to for the purpose of discounting it, he gave no intimation of the fraud. His silence under these circumstances was a fraud, which renders him responsible for the debt. Louisiana Code, article 2294-5, 2307. 11 Toullier, page 157, 214, 259., 9 Ibid., 270-1. 6 Ibid., 90-1.
    
      JDe ,8rmas and Soulé, contra.
    
    
      Where a juror is discliarged, and another one substituted and sworn in. his place, after the trial has commenced, and part of Ijie evidence introduced, the plaintiff „ is entitled to open his case again to the jury, and the trial to proceed de novo.
   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.  