Beach v. Chamberlain

By the Court,

The permission to withdraw a juror, or the allowance of the amendment asked for in this case was a matter resting in the sound discretion of the court, and if the court had so understood their powers and in the *367' exercise of their discretion had refused the plaintiff’s applications, this court would not interfere ; but it seems from the bill of exceptions that the defendants were permitted to bring on the trial after the juror was withdrawn, and the motion to amend was denied upon the express grounds that the court could not legally allow of the amendment, and that they had mistaken their power in permitting the juror to be withdrawn.

They did not consult their discretion in refusing the mo- ■ tion to amend, and erred in supposing they had no discretion to exercise. The case is still clearer in relation to the withdrawing of the juror. When the court supposed they had a discretion, they not only permitted him to be withdrawn, but suggested that course to the plaintiff. They countervailed ■ all that they had done for the plaintiff on this subject, not because it had been indiscreetly done, but because it had been done, as they supposed, without lawful authority. I think the judgment in this case ought to be reversed, not for the error of the court in the exercise of their discretion, but for the error of deciding that they had no discretion to exercise.

Judgment reversed, and a venire de novo.