Ex parte Beebees

3 F. Cas. 46, 2 Wall. Jr. 127, 1851 U.S. App. LEXIS 380

• Court: U.S. Circuit Court for the District of Pennsylvania
• Decided: November 3, 1851
• Status: Published

Opinion

GRIER, Circuit Justice.

The court must, of course, have regard to the actual distance by the usual routes, and not the imaginary rules assumed for the benefit of mail contractors. The residence of the witnesses is accordingly within and not over one hundred miles from the court-house in Philadelphia. We might, therefore, compel the attendance of the witnesses, if a sufficient cause were shown for the exercise of such a power.

We do not think it is the absolute right of the party to compel the personal attendance of witnesses in every civil case, and much less so in cases pending on the equity side of this court, where their testimony may be taken before a commissioner. Where the witness, who has been subpoenaed, shows no disposition to treat the process of the court with contempt, the issuing of an attachment is always a matter of discretion with the court. Where the witness is sick; where a member of his family is dangerously ill; where age or infirmity or any other reason which would render his compulsory absence from home dangerous to his health, or oppressive, the court will not compel his attendance, but will either postpone the cause, or order the deposition of the witness to be taken.

In the present case there is no physical disability alleged to excuse the attendance of the witness; but under the circumstances in evidence, we think it would be a great hardship, and would probably cause derangement and injury to the business of the witnesses. There is no reason why their testimony could not be as well taken in New York as in Philadelphia; before a commissioner there, as before a master here. In fact, it is.but a question.of convenience and-expense Must the witness be dragged from his counting-house to the great injury of his •business, and compelled to transport himself and a cart load of books of accounts to Philadelphia for the mileage and daily pay allowed by law? Shall he shut up his bank, suspend his business, merely to save a little expense to the party who wants his evidence? If there was an absolute necessity for such a sacrifice on the part of the witness; if there would be a failure of justice, unless his attendance at this place were enforced, the court would be bound to issue this compulsory process. But where, as in the present case, it is but a question of convenience and expense between the party and the witness, we think that the witness may justly demur to an application, which is to transfer the burthen to his shoulders.

If it should turn out (which we have no right to anticipate) that the witnesses should refuse to make a full, fair and candid disclosure of all facts within their knowledge, and of which the. master may judge proper to inquire, the court can and will, on proper proof thereof, compel the attendance of the witnesses, and enforce obedience to their orders. But at present we do not see a necessity for enforcing the attendance of the witnesses at this place, at so great a sacrifice of their private interests. Rule discharged.