8 Johns. 407
Decided October 15, 1811
New York Supreme Court · decided 1811-10-15
IN error, on certiorari, from a justice’s court. Caryell sued Irwin for work and labour performed for Mm. The defendant pleaded non assumpsit and a set off. The trial was postponed, at the instance of Irwin, and security given. At the trial, the defendant called the seJ ° 7 . eurity as a witness, and prayed that he might be discharged as security, and another person, then offered, be taken in his stead; but the motion was denied, and the witness rejected.
Decided 1811-10-15
¶1The justice ought to have released the bail, by taking the other security offered. It would be unreasonable and unjust to deprive the party of the benefit of a material witness, when his interest can be thus discharged, without injury to the other party. Sound and legal discretion required that it should be done. It is the practice for the court to discharge the bail upon application, when he is wanted as a witness for the defendant. (Sty. 385.)
¶2Judgment reversed.