
    The People, ex. rel. Perkins, against The Judges of the Court of C. P. of the City of New York.
    An alternative mandamus had Been granted in this cause i as a return to which the parties agreed to receive the following statement of Irving, first judge, being his opinion on a motion to reinstate the cause in question upon the calendar for trial, after he had refused to non-suit the plaintiff, suffering him to withdraw a juror. The mandamus was, .that the court below vacate the rule to reinstate, or show cause, &c. i
    
      Courts may, a'sound dií cretion, allow withdrawn ;be and still retain the cause upon the ecaiendar for trial, instead of non-
    suiting a plaintiff for a defect in his proof; as in case of surprise or mistake on his part in the preparation of his cause for trial; and this even where the defendant has not wilfully misled the plaintiff.
    
      “Common Pleas.
    
      Anthony A. Jacobus 1 v. V Cyrus PerJans. )
    Irving, First Judge. On the trial of this cause, the plaintiff offered in evidence a building contract, between the plaintiff and the defendant. It appeared that there were duplicates of this contract, the one being signed and sealed by the plaintiff, and the other by the defendant.
    The plaintiff had in his possession, and which he produced, the one which had been sealed and signed by him ; and which was witnessed by David Jacobus. Upon proving this by the subscribing witness, who also testified that the two were copies of each other, and that he had delivered the one which the plaintiff had not signed to the defendant, the defendant was called upon to produce this duplicate, which he did, and which appeared to be signed by the defendant, and witnessed by one Lydia Watkins. It was then contended that the counterpart, and which *alone was executed, if at all, by the defendant, must be proved by the subscribing witness.
    David Jacobus then testified that he had searched for this witness; but could not find her.
    T. H. Flandrau was then examined, and testified that he had received the instrument which purported to be signed and executed by the defendant from him. That he had caused Lydia Watkins, the subscribing witness thereto, to be subpoenaed th,e day before the trial, and also th e day preceding. That she lived six or seven. miles from the City Hall, (where the court is held,) in the family of a Mr. Beekman. That he expected her in court, and should call her presently.
    Henry Perkins testified, that he had served the subpoenas upon her. That she lived five or six miles from the City Hall, in Mr. Beekman’s family; and that she was in town now. Thereupon she was called, and not answering, the defendant moved for a non-snit. The court, however, directed a juror to be withdrawn, with leave, to direct a non-suit to be entered, if the court should be of opinion that ii had no discretion to withdraw a juror, or that such discretion was not called for by the occasion.
    The application that the cause be reinstated on the calendar is now made, and resisted on the ground that a non-suit should be entered.. Several depositions have been submitted to me. The plaintiff has testified, that on • the day of the trial, and immediately after a juror was withdrawn, he was informed that Lydia Watkins was at a house in the vicinity of the court house. That he immediately went with a subpoena to the house, and inquired for her; that she made her appearance; when he subpoenaed-her, and she then told him that she must see the defendant first. He also says that his witness, Jacobus; told his counsel, that he was under the impression that, he was a witness to both copies of the instrument.
    The defendant denies that he instructed Miss Watkins not to attend court, or to go to any particular place to await the movements of the court, or that he knew of her being *in the city till the trial was-over. That he was professionally engaged and could not attend the trial.
    Henry Perkins deposes, that he subpoenaed Miss Watkins twice; and did: not know of her being in the city, till the trial was over.
    Miss Watkins herself deposes, that she was subpoenaed on the 28th and 29th of January .; and that she was not instructed to attend court, or to wait at any particular place till sent for. .:
    It is evident, from these depositions, that Miss Watkins was a material witness for the defendant; that he took great pains to procure her attendance. That, she came to the city for the. purpose of obeying these subpoenas. And what is probable, that she informed the defendant where she-stayed when in town, and that in the expectation that she would, be in season in court, or would be readily obtained, the defendant went to trial, as the cause was set down for the first in the morning. I do not think that there was any concert or arrangement te, keep this witness-out of the way. Yet I believe that her attendance would have been immediately procured, if the information been given to the plaintiff where she might in all probability be found, a knowledge which I am inclined to think was possessed by some of the agents of the defendant. Under such circumstances, to non-suit a plaintiff, it appeared to me would be manifestly unjust. I did think, at the trial, that the witness was in attendance some where near the City Hall; and that appears to be the fact, for she certainly came to the city in obedience to the summons.
    That the court has the power to exercise a discretion of withdrawing or discharging a juror in civil as well as criminal cases, is established by the following authorities:
    2 John. Gas. 276, 301; 2 Gall. Hep. 366; and it appears to me to have been properly exercised upon the present occasion. The application to reinstate this cause is, therefore, grantéd.
    Jho. T. Irvihg.”
    
    
      *T. S. FJandrau, for the relator.
    
      J. Anthon, contra.
    
      
       During the trial, after the jury are swam, the parties frequently agree to withdraw a juror; the consequence of which is, that the cause goes off without impairing the rights of either parly. This is usually done at the recomtnendation of the judge, in eases where it is doubtful whether the action wiE lie; or where the judge intimates an opinion that, under the peculiar circumstances of the case, the action should proceed no further. 1 Arch. Pr. 196. And the court may always, in its discretion, allow a juror to be withdrawn, (even without the consent of parties,) and still retain the cause on the calendar for trial, instead of non-suiting the plaintiff for a defect in his proof; as in case of surprise or mistake on his part, in the preparation of his cause for trial: and this, even where the defendant has not wilfully misled the plaintiff. 8 Cowen, 127; see 2 Johns. Cas. 307 ; 15 Wendell, 371. But it is not a good ground of opposition to a motion for judgment as in case of non-suit, that the judge allowed the plaintiff to withdraw a juror, because of an unexpected defect in his proof 5 Cowen, 30.
      On withdrawal of a juror by consent, each party pays his own costs. 3 Term. Rep. 657. This proceeding is similar in its effect (on the part of the plaintiff,) to a non-suit, and he may bring his action de novo. 3 B. & Adol. 349. If a juror be withdrawn, without consent of the defendant; he may move for judgment as in case of non-suit. 5 Cowen, 30.
    
   Cuña.

The' question is, whether a court may "allow a juror to be withdrawn, thus saving the plaintiff from the GCmsequenGeg- Gf a fatal defect in his testimony. If" such a discretion exist as to. any civil case, we are satisfied it existed and was properly applied in this. The modern books are very barren of authority upon the question as to civil causes, though jurors have been withdrawn, and the practice has been sanctioned in criminal cases. The older authorities do not .agree. In Chedwick v. Hughes, (Carth. 465,) Holt, G. J., says it was the opinion "of all the judges of England, upon debate between them, that in civil cases this cannot be done without consent of all parties; nor without the defendant’s consent in criminal cases not .capital, The authority of that dictum is rendered rather questionable, by what appears in Foster, 36, 37; and, as to criminal cases not capital, we have a very respectable authority in United States v. Coolidge, (2 Gall. 364,) that. the court may, in their discretion, allow a juror to be withdrawn in order to prevent a failure of justice; and yet continue the cause. The principle would seem to apply more strongly to a civil cause.

We find the practice has prevailed at the circuitand it strikes us as convenient, and indeed necessary, in same instances, to prevent a failure of justice. On the whole, we think courts may, in the exercise of a sound discretion, take the course which, the court below adopted in this case.

The motion for a peremptory mandamus is, therefore, denied.

Motion denied»  