
    M’KINLEY vs. SMITH.
    It >» a general ^v'eVwould^ea g00d caufe of challenge to a .'J be caufé f»r granting a "ewt,'a1, lin°J after verdia.
    if it be dif]ate ⅛/the party to avail himS'n °í fame advantage °r ñ as if dif. cov!r»d after
    
      January 20th.
    
    
      February 10th.
    
    AN action was commenced by M’Kinley against Smith, in Henry circuit court, for slander. On the trial, a verdict was given for the defendant. The plaintiff moved for a new trial, because one of the jurors, before the trial, and on the day it was had, was heard to say, “ T he plaintiff Ought not to have a verdict; and that he was on the jury, he would find against himand that he, the plaintiff, did not know of this declaration Df the juror, before the jury retired to consider of their ver-diet. Evidence was offered of these facts. The court refused to hear the evidence, being of opinion, that if they were proven, they would not be sufficient to set aside the verdict; and overruled the motion. M’Kin-ley prosecuted a writ of error.
    
      Blair, attorney-general, for the plaintiff.
    — Whatever is a good ground of challenge to a juror, is a good ground for a new trial, if the fact were not known to the party until after the verdict — Cowper 116, 5 Bac. ab. (old Ed.) 245 
      , 2 Bur. 863. In this instance, the fact was not known until it was too late for us to avail ourselves of the knowledge of it. We are in the same situation as if we had not known it until after verdict.
    
      Allen, for the defendant.
    — The rule contended for by the attorney-general, is certainly not as broad as he lays it down . Some cases may be found, where a new trial has been granted, because of the discovery of a fact that would have been a cause of challenge. The case of Duncan vs. Finnyhorn and wife, in this court, spring, term 1803,Pr.dec. 309, shews that the ruléis not universal. The declaration of the juror, was such as might have been made by half the people in the court-yard, without any real prejudice against the plaintiff; and if the juror were not prejudiced against him, there can be no pre-tence for granting a new trial. In actions of slander, it is not unusual to hear of the neighbors expressing opinions on the case, without their taking sides in the controversy ; and when they would in fact be the men best qualified to do impartial justice between the parties.
    This is, therefore, a case in which the inferior court acted properly in refusing a new trial.
    
      
      , . Gw¡1 e<J 0f Bacon, 6 voú 66l> 7 Mod. 54'
    
    
      
      
        W ® ®ac- , v^t.^oSty. ioo, 129/
    
   The Court, after stating the motion for á new trial, and the grounds thereof, delivered the following opinion :

This would certainly have been a good Cause oí challenge, if it had been discovered intime. It seems to be laid down in the books as a general rule, that whatever would be a good cause of challenge, if discovered iri time, will be cause for granting á new trial, if not discovered before verdict.

This court are áware there are exceptions to this rule; but they cannot suppose that an exception would be made to the general rule, in any cáse where the objection or cause of challenge is founded upon direct partiality ih the jurors,or any of them,as in the present case . It is true . the objection in this case was discovered before the verdict, but after the jyry retired to consider of their verdict. By our law, the jury, after retiring to consider of their verdict, is beyond the control of the parties. Nor could the plaintiff have suffered a nonsuit, to have avoided the effect of partiality in the jury . There cannot, therefore, be any difference principle, between this case and the case where the objection is discovered after verdict.

judgment reversed, with costs; cr.lise remanded, and court below to grant plaintiff á new trial, on his paying the costs of the former trial. 
      
      6 Bac- . M (Gwil. ed„) ¿68, Salk. 645.
     
      
      
        H) A«s of 1796-7, p.»5, trjl’ * Brad"
     
      
       This expreiJion mu ft be undcrftood (i beyond the control of cither party?*
      
     