Leighton v. Twomely

9 N.H. 483

• Court: Superior Court of New Hampshire
• Decided: December 15, 1838
• Status: Published

Opinion

Ufham, J.

The attendance of a witness in civil cases is compelled by means of a subpoena, which is a judicial writ, commanding the witness to appear at the trial, to testify for the plaintiff, or defendant, or “to answer for his default thereon under the pains and penalties of the law in that behalf made and provided.”

If a witness wilfully neglect to attend upon subpmna, he is guilty of a contempt of court, for which he is liable to an attachment, and to “ an action for all damages which the aggrieved party shall sustain by reason of such default or refusal.” 1 Star. Ev. 111; N. H. Laws 98.

The process requiring the attendance of the witness is wholly compulsory, and does not partake of the nature of a contract. This action, therefore, which is based on the ground of a promise of attendance as a witness, or repayment of the money received, is misconceived.

Could the claim have been sustained as a contract, it was fully met by the defence, and the defendant would have been entitled to judgment.

But the facts presented in defence make no difference as to the real question at issue, which is solely whether any implied assumpsit of attendence, or repayment of fees received, arises on the due service of a subpoena upon a witness.

In this case the money was voluntarily received; but it was received as part of the service of legal process, and it imposed no other obligation than subjection to the penalties ' of the law in cases of neglect to comply with its requirements. The circumstances raise no promise, express or implied, of repayment of the money in case the attendance should become unnecessary, or should be refused. There must, therefore, be

Judgment for the defendant.