Tompkins v. Curtis

3 Cow. 251

Opinion

Curia,

per Sutherland, J.

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.