Dreskill v. Parish

5 McLean 241 | U.S. Circuit Court for the District of Ohio | 1851

OPINION OF

THE COURT.

Mr. Parish, the defendant, moved the court to retax the cost bill on two grounds: 1. Because there was no service df a subpoena on Charles S. Mitchell and Andrew J. Dreskill, who appeared several terms and were examined as witnesses. 2. Because several other witnesses were summoned who lived more than one hundred miles from the place of holding the court

The court said, the second ground is not sustainable. A witness may be summoned if he live within one hundred miles of the place where the court is held, though his residence may be out of the district in which the court is held. But a subpoena runs throughout the district, without regard to the distance, 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 ground is sustainable. The compensation to a witness summoned is allowed. If he attend voluntarily or without summons, his fees cannot be charged against the losing party. The attendance of the witness is voluntary if he ■be not summoned. The indorsement of “Accepted,” as in this ease, by the witness on the subpoena, which was never placed in the hand of the marshal, is not sufficient. No attachment can issue to compel the attendance of a witness, under such a service.

In the case of U. S. v. Burr,3 the court say, an attachment against a witness for non-attendance, pursuant to a subpoena, must be served by the marshal. And in the ease of the U. S. v. Caldwell [Id. 14,708], an attachment was refused against a material witness who had not been regularly summoned.

The 6th section of the act of 28th February, 1799 [1 Stat 620] provides that the compensation to a witness summoned shall be, &c. A witness not summoned, of course, can receive no compensation.

The court ordered the allowance made to Mitchell and Dreskill shall be stricken out of the cost bill taxed against the defendant, and that their attendance be charged to the party summoning them.

[See Cases Nos. 14.692-14.U94b.J