Dreskill v. Parish

5 McLean 213 | U.S. Circuit Court for the District of Ohio | 1851

BY THE COURT. The second objection is not sustainable. A witness may be summoned if within one hundred miles of the place of holding the court, though his residence be out of the district in which the court is held. But the subpoena runs throughout the district, the same as any other writ The deposition of a witness may be taken who lives more than one hundred miles from the place of holding the court.

The first objection, we think, is sustainable. The compensation to a witness is allowed. If he attend voluntarily or without summons, his fees cannot be charged against the losing party. The attendance, if not summoned, is voluntary. The indorsement of “Accepted” on the subpoena, never placed in the hands of the marshal or his deputy, by a witness, is not sufficient. Such a service would not authorize an attachment against the witness, for non-attendance. The service must be made by the marshal or one of his deputies. As no such service was made on the witnesses above named, their per diem and traveling expenses cannot be charged to the defendant, but must be taxed to the party summoning them.