Walker v. Kennison , 34 N.H. 257 ( 1856 )

Eastman, J.

The court erred in not permitting the bail to be changed so that the person originally taken as bail could testify as a witness in the cause. In Kendall v. Fitts, 2 Foster 1, it was decided to be the practice in this State, to allow securities required by statute as preliminary to the service of writs, to be changed in the progress of the litigation, where no injury can be done to the parties, and substantial justice requires it. And in that case, which was replevin, it was held that a new bond to the sheriff might be given, so as to enable the surety on the original bond to be used as a witness.

Where, in the progress of litigation, an indemnity is given by a party under the order of the court as security for costs, or on account of some laches on the part of the person upon whom the order is made, the security becomes the private property of the party indemnified, and the court will not interfere to change it. But where the security or indemnity is such as is required by statute, it is under the direction of the court; and it is the uniform practice to permit a party to change that security, if, by so doing, no rights are to be prejudiced.

This case is the same in principle as that of Kendall v. Fitts. A replevin bond is an indemnity, not only for the costs that the defendant in replevin may recover, but for damages to the value of the property replevined. The liability of bail is no greater, for in no event is he chai'geable beyond the debt and costs, and may often relieve himself by a surrender of his principal. Both stand upon the same ground; that of indemnities prescribed by statute, and the court may exercise a control over both; and so long as they can see that the security is in no way impaired, the design of the law is not defeated by permitting the change.

In the haste of doing business it is no uncommon thing for the very witness, upon whose testimony a party’s action may chiefly depend, to endorse a writ, sign a bond, or become bail; and not to permit a change in such cases would oftentimes work great injury.

Care is always taken that the new sureties shall be equally good with the former, and it appears here that no objection was taken to the responsibility of the bail that was offered. The court, however, decided that they had no discretion to grant the motion; and therein we think they were wrong, and the verdict must be set aside on that account. By this error the defendant was deprived of the testimony of the witness.

With this view in regard to the first question presented in the case, it becomes unnecessary to consider the others. It is, however, well settled that the affidavits of jurors are not admissible to show the consultation that took place in the jury-room, and the motives, inducements, or principles, upon which a jury founded or joined in a verdict. Tyler v. Stevens, 4 N. H. 116; Hannum v. Belehertown, 19 Pick. 311; Brownell v. McEwen, 5 Denio 367; Jackson v. Williamson, 2 T. R. 281; Folsom v. Brown, 5 Foster 114.

In our practice, also, the formation of the jury that is to try the cause is under the direction and within the discretion of the presiding judge; and any changes that he may think proper to make in such formation will be no cause of setting aside the verdict, so long as it shall appear that the jury by whom the cause was decided was fair and impartial. This matter was recently considered in Strafford county, in Austin v. Walker, and the question was there settled as stated.

If any imposition should be practised upon the court in the formation of a jury, it might be good cause for inflicting summary punishment upon the guilty party, and perhaps for setting aside a verdict otherwise unexceptionable.

The further consideration of these questions, however, becomes unnecessary, inasmuch as the verdict must be set aside upon the first ground stated.

Verdict set aside.