Oldham, &c. v. Hill, Rockcastle, 1832

Oldham, &c. vs. Hill.

COURT OF APPEALS OF KENTUCKY

28 Ky. 300; 1832 Ky. LEXIS 2; 5 J.J. Marsh. 300

January 8, 1832, Decided

PRIOR HISTORY:  [**1]  Error to the Rockcastle Circuit; JOSEPH EVE, Judge.

DISPOSITION: Reversed and remanded for a new trial.

COUNSEL: Triplett, for plaintiffs; Haggin, for defendant.

JUDGES: Chief Justice ROBERTSON.

OPINION BY: ROBERTSON

OPINION

 [*300]  Chief Justice ROBERTSON, delivered the opinion of the court.

IT seems to the court, that the judgment is erroneous. It appears, that on a writ of enquiry, only nine jurors were sworn. As there is no waiver on the record, express or implied, of objection to the number, the judgment must be reversed. It would be prudent on the return of the case for the defendant in error to amend his declaration, by averring his readiness on the day and at the place designated to do what might be necessary on his part, and also to aver the non-delivery of any wagon, without regard to the price. Judgment reversed, and cause remanded for a new trial.