#### Richard H. McGoon, plaintiff in error, v. Ephraim Little et al., defendants in error.

Error to Jo Eaviess.

The defendant in a cause in the Circuit Court filed his petition, verified by affi-. davit, in which it was 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 which, he believed, existed in the mind of the presiding Judge; and that he believed those prejudices so great against him, that he would be unsafe in submitting to a trial before him. Upon this petition, a motion for a change of venue was based, but the motion was denied: Held,, that the defendant had brought himself within the provisions of the statute, and that the Court erred in denying the motion.

This cause came onto be heard in the Jo Daviess Circuit-Court, at the May term 1840, before the Hon. Thomas C. Browne, when a petition, the substance of which is set forth in the Opinion of the Court, was filed, and a motion made for a change of venue. The motion was denied.

At the June term 1841, of the same Court, the cause was submitted to a jury, who returned a verdict in favor of the plaintiffs below for $306-28.

The case was submitted in this Court without argument.*

T. Campbell, for the plaintiff in error.

J. Young Scammon, for the defendants in error.'.

*

There were sundry proceedings in this cause in the nature of a mandamus, but the Reporter was unable to find the papers containing the facts, ydiich dr-, cumstance will account for this imperfect report..

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 ac*43count 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.