Permitting a juror to be withdrawn is a matter within the discretion of the Court. (Graham's Practice, 291, 2d edit.; 8 Cow. 127; Gallison, 364.) The Court, under our practice, " in furtherance of justice," allowed the withdrawal and continued the case. The defendant was not prejudicedby the new complaint, as his answer was filed on the day of trial. The power of Court to impose terms, by way of remittitur, is fully settled. (2 Rich. S.C. 507, 512; Sandf. 20; Dibber v. Murphy, 1 How. Miss. 19; 17 Pick. 453.)
JUDGES: Mr. Justice Heydenfeldt delivered the opinion of the Court. Mr. Ch. J. Murray concurred.
OPINION
HEYDENFELDT, Judge
1. The withdrawal of the juror was made to operate as a continuance by the Court. Such must, then, have been the design of it, and otherwise unexplained, it must be presumed to have been done by consent, or without objection. Under any circumstances, it is no ground for reversal.
2. The substitution of papers is always within the discretion of the Court, and no notice of the motion to apply for it need be given, when the notice can be of no use. The principal paper substituted here, was the declaration, to which the defendant had the opportunity afterwards to plead or demur. The only thing the defendant could have shown, if he had had notice on the motion to substitute, was that the paper offered was in some respects different from the one lost. But this difference, if it was material, could afterwards as well be adopted by motion to amend.
3. There was no error in refusing the new trial. In requiring a remittitur of a portion of the judgment as terms for refusing the motion, the Court used a sound and admitted discretion. It is only saying that, although the verdict is excessive, yet had it been so much less it would not be excessive. By the reduction, the action of both Court and jury is made to coincide pro tanto against the defendant, and where that is the case, the result of the coincidence ought to be the measure of the judgment.
Judgment affirmed, with ten per cent. damages.