On Rehearing.
Morgan, J.In our former judgment we ordered the case to be remanded to be tried de novo. This was wrong.
Plaintiff in the court below moved for a new trial on the ground that the jury had been improperly influenced. On the trial of his motion he offered to prove the fact alleged by witnesses. The court refused to hear them, and he reserved his bill. The district judge ■erred. Plaintiff should have been heard. As the case now stands before us, we can only pass upon the correctness of the ruling of the judge with regard to his refusal to hear testimony as to the improper ■conduct of the jury.
It is therefore ordered, adjudged and decreed that our former judgment be set aside; and it is further ordered, adjudged and decreed that the judgment of the district court be avoided, annulled and reversed and the case remanded, and that the district judge be instructed to hear the testimony offered by plaintiff on his motion for a new trial, the costs of appeal to be paid by defendant.