Tompkins v. Curtis — 3 Cow. 251

Majority

p. 251

Tompkins against Curtis.

Headnote

Error from the Common Pleas of Onondaga county. Curtis sued Tompkins before a Justice of that county arid recov ered judgment. Tompkins thereupon appealed to (he Common Pleas, and Nathaniel Tompkins, one of the witnesses before the Justice, became security for the appellant, and signed the bond to prosecute the appeal, &c. On the trial in the Common Pleas, the appellant wishing to have Nathaniel Tompkins sworn for him. moved the Court to have him dis- r ‘ charged from his bond, which had been duly returned by the Justice and filed with the Clerk, that other security might be substituted; and that N. T. might then be sworn as a witness; but the Court overruled the motion, and gave judgment for the appellee; and this point, among several others, came here upon a bill of exceptions.

fThe court piea3) on mo. ’ are bound to discharge a proseeudon^f un appeal, and er competent ; „s<> that the first may be a wit-appellant. ^

(?. Lawrence, for the plaintiff in error, cited Irwin v. Car- yell, ( 3 John. 407 .)

J. R. Lawrence, contra.

Curia,

The Court erred in refusing to permit another surety to be substituted. There cannot be a doubt that the person so substituted would be liable upon the bond, so that no possible injury could result from the change. The power of the Court to grant the application is clear. They were fully possessed of the cause. The bond, with the other papers and proceedings, had been returned and filed with the Clerk. The surety was in the nature of bail, whom it is the established practice of the Courts to discharge upon other bail being substituted, when the first is a material witness for his principal. The case cited of Irwin v. Caryell is in point. The judgment must be reversed and a venire de novo, go from the Common Pleas.

Judgment reversed.