
    Fitzpatrick vs. Harris.
    APPEAL FROM FLOYD CIRCUIT.
    1. To constitute a sufficient ground for a new trial, because of a juror' having served on a jury in the same suit, and found a verdict against the party, it must appear that the fact was unknown to the party when the juror was accepted, and until it was too late to make it known before the jury retired. It is the duty of the parties to look to the record of a former trial for such facts.
    2. A plaintiff collected a part of a judgment recovered for assault and battery, which judgment was reversed, When the plaintiff gave his obligation and surety to refund the amount collected in case he should not recover that amount on a second trial. On the second trial the surety was offered as a witness, and objected to— objection sustained. Plaintiff offered other surety — objected to and objection sustained. Money deposited to the extent of the liability of surety. Held that his competency was thereby restored.
    Harris brought an action for assault and battery against Fitzpatrick, and recovered a judgment for $152 in damages. Fitzpatrick brought the case to the court of appeals, and it was reversed. Whilst the case was in the court of appeals, Harris sued out execution on his judgment and sold property to the amount of $65 — part of which defendant bought on credit and had not paid. Upon the return of the case, Fitzpatrick being about to move for restitution of the amount so collected, it was agreed by the parties that Harris should give his bond, with J. M. Elliott surety, to refund the sum collected, if Harris should fail to recover that amount on the second trial. Upon the second trial Harris offered J. M. Elliott as a witness, and he was objected to because of his interest. Harris then offered other security instead of Elliott. The court refused to permit that to be done. Harris then deposited in court $40, which was ascertained to be the sum which Harris should refund in case he failed, &c. A trial was had, Elliott was admitted to testify, and Harris recovered a judgment for $200 in damages. A new trial was asked upon the ground that Elliott had been improperly admitted to testify, and that one of the jurors who sat on the last trial had also sat on the first trial, and that the court erred in its instructions to the jury given at the instance of the plaintiff. The motion for new trial being overruled, the defendant has appealed to this court.
    
      W. H. Burns for appellant—
    1. The circuit court erred in admitting the testimony of J. M. Elliott. He was interested in enhancing the recovery of Harris to an amount at least equal to the sum collected on the first judgment. — - The giving of the bond was an act of the parties; it was their agreement, which the court had no power to change, or in any way to release Elliott. It was nota judicial bond, such as is contemplated by the Revised Statutes, chap. 107. Elliott could not be released without the consent of Fitzpatrick.
    2. The sum deposited was insufficient,; $65 had been collected on the reversed judgment; only $40 was deposited. This was not sufficient.
    3. S. Salyers, who was one of the jurors on the first trial, was also a juror upon the last trial, of which the defendant was not informed, or did not remember at or during the second trial, and therefore did not challenge him. It is now, under the circumstances, good cause for a new trial. (McKinley vs. Smith, Hard., 167; Pierce vs. Bush, S Bibb, 347; Herndon vs. Bradshaw, 4 Bibb., 45; Vance vs. Haslet, lb., 191; Gain vs. Cain, 1 B. Monroe, 214.) The case of Craig vs. Elliott, 4 Bibb., 272, decides that the ground is not sufficient if the party discover it in time to avail himself of the challenge. It was not discovered in this case, as the affidavit shows.
    4. The instructions of the court are erroneous and confused, filled with abstractions, and misleading and embarrassing to the jury.
    
      1. To constitute a sufficient ground for a new trial, because of a juror having served on a jury in the same suit, and found a verdict against the party, it must appear that the fact was unknown to the party when the juror was accepted, and until it was too late to make it known before the jury retired. It is the duty of the party to look to the record of a former trial for such facts.
    
      R. Apperson and G. Pearl for appellee—
    1. There was no error in permitting Elliott to testify. If he was incompetent bjr reason of his being the surety of Harris, he could be properly released under the provision of the Rev. Stai., p. 70. But if we are in error in this, there can be no doubt that the witness was made competent when the money, for which he might have been made liable on the bond, was deposited in court. Forty dollars was the sum which the court said was the liability on the bond in any event.
    2. No distinct and tangible objection is made to the instructions given for plaintiff. It is believed they contain substantially the law of the case.
    3. The defendant has not shown the exercise of that vigilance in the selection of the jury which it was his duty to exercise, nor has he shown that the fact that Salyers served on the former jury was not known to his counsel, nor at what stage of the trial i't was discovered. The record of the former trial was there; it was his duty to consult it.
    January 11.
   Chief Justice Marshall

delivered the opinion of the Court.

The instructions in this case, though some of those given on behalf of the plaintiff are longer and more minute in detail than necessary, conform substantially to the principles of the former opinion, and seem to embody them. There was no error in giving them as asked.

Though the affidavit of the defendant states that he did not know, until after he was accepted, that Salyers, who was one of the jury on the last trial, had been one of the jury on the former trial, (when a verdict was found for the plaintiff) it is not a sufficient ground for a new trial. The objection might have been made at any time before the juror was sworn, and, as we think, at any time before the entire jury w.as sworn, and the fact should have been made known as soon as discovered, at any time before the jury retired, when it might have been in the power of the parties to cure or waive the objection'. Besides, the record of the former trial furnished to the parties and their counsel the means of knowing the names of the jurors who had then tried the case, and even if they were not personally known, the identity of name would suggest the probable identity of the person; and even without the trouble of examining the record, the fact that there had been a previous trial, authorized, and should have suggested, the question to be asked of the juror himself, whether he had been one of the former jury. With such opportunities of ascertaining the fact, the failure to disclose it until it is made the ground of asking a new trial, raises a presumption of bad faith, or of willful neglect, which can only be overcome by showing such extraordinary circumstances, if there can be any such, as will account for ignorance where the party ought to have knowledge, and excuse neglect where he is bound to be diligent. In tlris case the affidavit of Salyers proves that he and the defendant were familiar acquaintances and friends. — - And thus the circumstances strengthen instead of repelling the unfavorable presumptions in the case. And we may add, that even if the defendant himself were ignorant, it is not shown that his counsel, who conducted the defense, did not know the fact now brought forward, nor, if they were ignorant of it, is any reason shown for their neglecting the means of knowledge so easily within their power. The affidavit, therefore, makes out no ground for a new trial.

2. A plaintiff collected, a part of a judgment recovered for as sault and battery, which judgment was reversed, when the plaintiff gave bis obligation with surety, to refund the amount collected incase he should not recoverthat amount on a second trial. On the second trial the surety was offered as a witness, and object ed to; objection sustained; plain tiff offered other surety; objected to, and objection sustained.— Money deposited to the extent of the liability of surety: Held, that his competency was thereby restored.

We are of opinion, further, that no error was committed in overruling the objections to the competency of J. M. Elliott, offered as a witness for the plaintiff. It seems that upon the first judgment in this action the plaintiff had,before its reversal, caused execution to issue, on which two tracts of land and a horse had been sold for about $65, and the net proceeds of the sales had been credited on the execution. After ' the mandate of this court, directing a new trial, was entered, the defendant, instead of moving for restitution, took a bond from the plaintiff, with said Elliott, and another, as sureties, to secure such repayment as might be ordered by the court. This obligation made the sureties interested in the event of this suit, to the extent that the plaintiff might be hound to return what he had recovered under the reversed judgment. If he should recover damages beyond the amount received, he and his sureties would be under no liability on the bond. The bond having, as it seems, been the result of agreement between the parties, the court properly refused to permit the plaintiff, ¡against the consent of the defendant, to substitute it by a new ■bond with other sureties, in discharge of Elliott’s liability, and as a means of restoring his competency. But there was no error in allowing the plaintiff to deposit in conrt a sufficient sum of money in discharge of the undertaking of the plaintiff and his sureties, which seems to have been entered upon the record. The deposit of such sum would be, and was a complete discharge of the bond, and as it removed entirely the liability of the sureties, and their consequent interest in the result of the suit, it made each and either of them competent to testify on either side. The sum deposited, and to which this effect was given, was $40, which being not quite two-thirds of Avhat had been returned as made on the executions, seemed at first not to be a sufficient sum. But on examining the returns on the executions, we find that the horse was purchased by the plaintiff at the price of $30, and the two tracts of land were purchased by the defendaut himself at the price of about $35, for which he executed sale bonds. But it does not appear that any part of these bonds had been paid before the reversal of the judgment. And as the sales were made in the early part of the year 1852, and the mandate of reversal was entered in October of the same year, payment is not to be presumed in favor of the party objecting to the witness, upon whom it was incumbent to show his interest and incompetency. In this aspect of the case the sum of $40 seems to be sufficient to cover any liability which the plaintiff and his sureties might incur under the bond or recognizance above stated, even if the plaintiff were defeated in the present action. And if the defendant’s liability on his sale bond might be affected by that event, the plaintiff’s sureties have no interest in that matter. There was no error, therefore, in admitting Elliott as a witness after the deposit of $40 in lieu of the bond in which he was surety. But that sum, being in place of the bond, should not have been allowed to be withdrawn by the defendant, and especially after a second judgment had been obtained against him, and a new trial refused, and an appeal prayed. In that state of the case he would not have been entitled to restitution if there had been no bond, but the question of restitution, on which the right to this $40, or any part of it, depends, would have been suspended until the decis- ■ ion of the case in this court. To place the parties in their proper position in case of an affirmance, if the sale bonds of defendant have not been paid, the credits on the previous executions should be stricken out, and the defendant ordered to restore to the plaintiff any excess of the sum of $40 above the sum bid by him for the horse, with the interest from the time it was due according to the terms of sale. But if the plaintiff received on the executions a sum which, with its interest, exceeds the sum of $40, the excess should be credited on the present judgment, which, as there is no error in the proceedings prejudicial to the defendant, is therefore affirmed.  