dissenting:
This is an action of replevin instituted by the appellant against the appellee in the court below under the laws of this territory: Vide Laws of New Mexico, 114. The affidavit, as well as the bond required by the provisions of the statute, were both made by George Merritt. Upon the trial of this case below, said Merritt was tendered by the plaintiff as a witness, and objections were made as to his competency, on tbe ground of bis signature to said bond. These objections were sustained by the court. The plaintiff proffered then to relieve said Merritt from his incompetency by substituting another person in his stead, and releasing him from said bond. To this' release and substitution objection was also taken, and the court below sustained the same. The plaintiff thereupon suffered a nonsuit, whereupon the defendant obtained a judgment against tbe plaintiff and obligors to said bond for the value of said property taken, and double damages for 'the use of the same. Afterwards the plaintiffs entered a motion to set aside the nonsuit, which motion being overruled, exceptions were taken, and the case brought to this court for review.
It is insisted in argument, that this being a case of voluntary nonsuit, no appeal will lie. I do not conceive it to be a case of voluntary nonsuit; but rather, one where the plaintiff, on account of his witness being ruled to be incompetent, was constrained to such a course, considering it then as being one of .rightful appeal. I shall proceed to notice only such grounds of error as those upon which I differ with the opinion delivered. Courts should ever be guarded, while expounding the laws of one country, and in too readily adopting the decisions made in others upon a like subject, against that species of adjudication which may impose those foreign laws upon the people without their legislative sanction, and especially in the United States, where each state has its separate laws, differing one from the other so much in detail, although they may pertain to the same subject-matter of legislation.
To exemplify this, I will only instance that it is a universal rule of construction, that all remedies created by statute in contravention of the common law remedies are to 'be construed strictly. But in some of the states statutory remedies are created, aud by the laws of those very states it is expressly enacted that they shall be construed liberally. In those states where these remedial statutes exist, then, these statutory remedies are construed with reference to them. But when such remedial statutes do not exist, then the common law rule of strict construction prevails, and probably in almost every decision where there is a departure from the common law rule, it will be found that such departure is founded on some particular enactment which authorizes it. Is there any statute in this territory which authorizes the court to depart from the common law rule of construing all statutory remedies in contravention of common law remedies strictly ? I know of none. Then, testing this case by this rule, I shall proceed to point the difference which exists between the majority of the court and myself in reference to the power of the court to release said Merritt from his bond in this case, and substitute another person in his stead, in order to render him a competent witness. The fourth section of the replevin act is as follows: “The plaintiff, or some responsible person, shall, before the execution, enter into bond with sufficient securities, to the officer to whom the writ is directed, in double the value of the property, conditioned for the prosecution of the suit with effect, and without delay; make return of the property, if return is adjudged; keep harmless the officer, and pay all costs that may accrue.”
Now this section clearly points out and makes it a precedent step in this statutory form of action, that before the writ shall be served, or, in other words, before the defendant’s possession to the property can be disturbed, the plaintiff, or some responsible person, shall enter into bond, etc.: Vide Laws of Territory, 413. Either the plaintiff or some responsible person may enter into such bond with sufficient securities. He did so. Now the question arises, what relation does Merritt, as such responsible person, bear toward the plaintiff and his own securities for the purpose of this suit? I hold that both Merritt and his securities are the securities of the plaintiff, and upon the plaintiff’s failure to prosecute his suit, that judgment may be rendered against plaintiff and all the parties on the replevin bond: Vide seventh section of replevin act, Laws of the Territory, 413. But as between Merritt, as the responsible person in such bond, does he not stand in reference to his securities as principal? As between him and them, does he not stand as their principal, and they as bis securities? By reference to the attachment act of the territory, Laws of Territory, p. 39, sec. 4, it will be seen that the bond there required may be entered into by the plaintiff, or some responsible person as principal, with two or more securities, etc. I refer to this clause in the attachment law, to show that there the responsible person is expressly termed principal, and that the mere omission of the word in the re-plevin act does not make the responsible person in a replevin bond less a principal on that account. What is meant 'by the term responsible person, and why is this term used in the law? It is evident that these actions, being extraordinary, created by statute in contravention of the common law remedies, and when the property of the defendant is seized,' that the law intended that when any person resorted to them, the defendants should have some resporisible person bound for all the damages he might suffer from the w'rongfully suing out of such writs. The mere circumstance of the bond being payable to the officer amounts to nothing as a conclusion against its being for the benefit and protection of the defendant, as the tenth section of said act shows that defendant may sue upon it: Vide Laws of Territory, 414. The responsible person I then deem is the principal in the bond, and those Avho signed it with him, are, quoad said bond, his sureties, being his securities. Now, if another person is substituted in place of such responsible person, are not his securities released, and does not the bond wholly fail? Such seems, to my mind, the inevitable result, as the statute requires such responsible person shall enter into bond with sureties. These securities can, if that responsible person is released and another substituted, avail themselves of the plea that they never bound themselves for securities of such substituted persons. If this be so, T can not perceive how it can be considered error for the court below to refuse such release and substitution. If such substitution v'ould amount to a release of the securities, would not that annul the bond ?
Whether the plaintiff would have the right to substitute an entirely new bond, is a very different question, which is not raised by tlie record before us; and I think the safer course for appellate courts is to confine themselves to the decisions of only such questions as arise upon the record. I think I have demonstrated in this case that George Merritt, quoad the bond, can only be regarded as a principal, and that, his release, and the substitution of another person in his stead, would discharge the securities to said bond. If such be the fact, I can not perceive how the doctrine of the power of the courts to release securities in. certain cases, to render them capable of testifying, can be made applicable to a principal on a bond.