Feree v. Strome

1 Yeates 303 | Pa. | 1793

The defendants moved to put off the cause on account of the absence of material witnesses, and among others of John Breckbill, who was said to have gone to Wilmington, in the state of Delaware, and was soon expected to return. Affidavit was made of the service of the subpoena, and of his being a material witness, whereupon the cause was postponed until the next day, and an attachment awarded returnable forthwith. The sheriff could not take him on the attachment; but information being given two days afterwards that he was returned home, and the witnesses on both sides having been kept in town, another officer was dispatched for Breckbill, and he was brought in the next morning. He denied the service of the subpoena on himself personally, and it appeared on tbe examination of tbe person who was said to have served it, that he had shewn him a subpoena and required his attendance. Breckbill on looking at it said his name was not in the writ — to which the other replied, that then it certainly was in the other subpoena which he had in his pocket, and was about pulling it out, when Breckbill evaded it, and said he would endeavour to attend. The court, on the whole, thought it amounted to a service; the witness by his own act having dispensed with the legal forms, and ordered him to pay the costs of the attachment and service. He was reprimanded for his conduct, but as he asserted, that he did not conceive himself to be subpoenaed, he was dismissed without any fine.

Messrs. Montgomery, C. Smith and M’ Kean, pro quer. Messrs. Ingersoll and Kittera, pro def.