Andrews v. Andrews

2 Johns. Cas. 109

Opinion

*Per Curiam.

Here is a strong case of palpable contempt, and, therefore, the court will award an attachment in the first instance. (1 Str. 1150. 1 Hen. Black. 49.) The sum of money tendered may, or may not, have been adequate, but as the witness did not object to it, at the time, it is to he considered sufficient.

Rule granted.(b)

Footnotes

b

(b) In New York and Virginia, it has been decided that if a witness merely disobey a subpoena, the court will in the first instance grant a rule to show cause, &c. Jackson v. Munn, 2 Caines, 92. Morris v. Creel, 1 Vir. Cas. 333. If however the witness refuses to obey the subpoena, the court will proceed at once by attachment. Principal Case. The U. S. North. Dist Court follows the New York practice. Conkling’s. Pr. 265. Cowen & Hill’s Notes to 1 Phili. Ev. 24. But to authorize an attachment the subpoena must have been strictly served. State v. Trumbull, 1 Southard, 139. United States v. Caldwell, 2 Dallas, 334 ; (unless the witness by his act has dispensed with such service; Ferll v. Strome, 1 Yeates, 303 ;) upon a material witness; Trial of Smith and Ogden; (though this will be inferred unless circumstances raise a presumption to the Contrary, in which case the court will require an affidavit. Trial of Smith and Ogden.)

The object of the attachment is not the redress of the party injured ; State v. Nixon, Wright, 763 ; but solely the punishment of the contempt, id. Where therefore it appeared that witnesses, against whom an attachment had issued for disobedience to a subpoena, had been so much indisposed as to be incapable of attending, they were discharged, and the costs of the attachment directed to abide the event of the suit. Butcher v. Coats, 1 Dall. 340. See also Grah. Prac. 2d ed. 267. Cowen & Hill’s Notes, ut sup.