The Opinion of the Court was delivered by
Soates, J.At the May term 1840, the plaintiffs filed their declaration. At the same term, the defendant,,McGoon, filed his petition verified by affidavit, in which he stated that he entertained serious and well grounded fears, that he would not receive a fair and impartial trial in that Court, on account of the prejudices, that he believed existed in the mind of the presiding Judge of the Court, then on the bench; and, that he believed those prejudices so great against him, that he would be unsafe in submitting to a trial before him. He thereupon moved for a change of venue out of the circuit.
This motion was refused, which is assigned for error.
By the Act in relation to venue, (Gale’s Stat. 682, § 1,) either party may, by petition, verified by affidavit, stating that the presiding Judge is prejudiced against him, obtain a change of venue out of the circuit.
The defendant in this case brought himself within the provisions of the statute, and the Court erred in refusing the znotion. 1 Scam. 117.
As the subsequent orders, and judgments of the Court,'in this case, are avoided by the reversal of this judgment, upon this ground, it is unnecessary to decide any other point presented by the assignment of errors.
Judgment reversed with costs, and cause remanded for fui\ther proceedings.
Judgment reversed.