
    * JEREMIAH BENEDICT, Respondent, v. W. M. COZZENS et al. Appellants.
    Trial, Continuamcie. — Under any circumstances, the withdrawal of a juror, and the continuance of a case thereby, is no ground for reversing a judgment subsequently obtained.
    
       Substitution of Papers. — The substitution of papers (or pleadings in a case), 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.
    New Trial, Terms map be Imposed. — The Court may impose terms in granting or refusing a new trial. In requiring a remittitur of a portion of the judgment, as terms for refusing the motion for a new trial, the Court used a sound and admitted discretion.
    Appeal from the Sixth Judicial District.
    This was an action to recover damages from the defendants for a malicious prosecution, and the damages were laid at $10,000.
    At the October term, 1852, on the first trial, after the plaintiff had made some progress in the cause, he offered certain depositions in evidence, which on objection by the defendants, were rejected by the Court, and thereupon the Court, a ithe instance of the plaintiff, withdrew a juror. On the 28th of December, 1852, on motion of plaintiff’s attorney, and it appearing to the satisfaction of the Court, that the papers in the case had been destroyed by fire, it was ordered by the Court that the plaintiff have leave to file a new complaint. On the 16th of June, 1853, the case was tried and the jury rendered a verdict for plaintiff, and assessed his damages at $8,500. Before proceeding to trial, defendants objected, contending that the withdrawal of a juror was equivalent to a nonsuit, and that a new and different complaint had been substituted, ex parte, without notice to the defendant. The Court overruled these objections, and the defendants excepted. Defendants after-wards moved for a new trial, on the grounds of excessive damages, insufficiency of evidence to justify the verdict, and error in law occurring at the trial. The Judge overruled 
       the motion, on condition that the *plaintiff should within twenty days file a remittitur of $3,000 from the verdict and judgment; whereupon the defendants appealed from the judgment and order denying a new trial.
    
      Robinson, & Morrison, for Appellants.
    The Court erred in permitting a juror to be withdrawn, and in not nonsuiting the plaintiff. (Practice Act, § 148, 149, 158.) The Court erred in allowing the substitution of a complaint materially different without leave to defendant to file an amended answer. (8 Ala. 298.) The verdict of the jury was excessive, and for that reason a new trial should have been granted; the condition imposed by the Court shows this.
    
      S. Sawiders, Jr., for Respondent.
    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 prejudiced by 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.)
    
      
       Overruled in People v. Gazalis, 27 Cal. 523.
    
   Mr. Justice Heydeneeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

1. The withdraAval 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 bo 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.  