State v. Newark & Pompton Turnpike Co.

3 N.J.L. 338

Opinion

Kirkpatrick, C. J.

— Said, that the court was of opinion, that these writs could not issue as of course, but on a special case made out, on which the court could judge of the ' propriety of the allowance; but as matter had been disclosed by the return, that would have induced the court to have allowed the writ, they saw no use in quashing it — and refused the motion,

(a)

A subpoena had been issued to one of the Commissioners to appear in court this term, and give testimony in the cause which, according to the language of subpoena, was to be then and there tried. The person subpoenaed did not appear.

Mr. Kearney moved for an attachment against him, for not appearing

Pennington, J.

— Asked Mr. Kearney what authority he had for issuing the subpoena ? That it appeared to him a crude proceeding, for an attorney at his pleasure, to issue subpoenas in cases of certiorari, commanding persons to attend this court as witnesses, from the most distant parts of the State.

Kirkpatrick, C. J.

— Said, that he was clearly of opinion, that an attorney had no such authority; and on Mr. Williamson’s asking liow the facts in those cases were to be made out, the Chief Justice answered, by obtaining a rule to examine witnesses, and that subpoenas issue. It was said, by the counsel for the prosecutors, that the person subpoenaed could not judge of the legality of process, or whether it issued on rule or not, on which the court inclined to allow a rule which was now asked for, on the Commissioner subpoenaed, [*] to shew cause at the next term, why an attachment should not issue against him; but it satisfactorily appearing that he was in ill health, the court refused the rule: on which

Mr. I. II Williamson moved for and obtained a rule for the examination of witnesses, and the issuing subpoenas in the cause.

а) Notice of motion for certiorari needless — -7 Halst. 366, vid, Cox, 393.