15 Wend. 602 | N.Y. Sup. Ct. | 1836
By the Court,
It was the duty of the witness to obey the subpoena; and he is guilty of a contempt in disregarding it, and must be punished unless he has furnished us with a legal excuse. Both insolvency and poverty in the witness are sworn to by himself and Mr. Lamb who was one of his assignees. But it is scarcely necessary to observe that these form no excuse in the abstract. If received at all it must be in connection with the situation of the family, or as showing the utter inability of the defendant to defray his expenses. In rendering these excuses of sickness and extreme poverty,while we are not disposed to deny the validity of either if clearly made out in a proper degree, we cannot allow the
As to the excuse of inability from, poverty, we should have been much better satisfied with more particularity. Poverty and dependence on daily labor for daily bread, as expressed in the answer and in Mr. Lamb’s affidavit, are relative terms; and it would have been much more instructive, if instead of such generalities the defendant had sworn that he had no money, and could not get any, after trying, in the course of the twelve or thirteen days opportunity. In the mean time, too, I should suppose that in a civilized, not to say a humane neighborhood, some expedient, even short of a resort to public charity, might have been effectual to save the defendant’s family from suffering for want of food. We have no ac
There is reason to believe, also, from the depositions, that the costs of the circuit in June are not the first bill to which Mr. Kelly has been subjected by the non-attendance of the defendant. The first loss was probably the reason why Mr. Hay, the attorney, intimated on the back of the ticket, that an attachment would be the consequence of a default in this instance. I am aware that the defendant admits no such intimation on the ticket. What is still more remarkable, he read the ticket carefully through, and it contained no duces tecum clause, as he feels confident. He is also confident that no original subpoena was shown to him. Unfortunately, young Mr. Hay swears positively that he delivered the ticket, a copy of which is annexed to his affidavit. The ticket served is not now produced, for which the defendant assigns this reason : “ The said ticket is not now in the possession of this defendant, nor can he have access to the same, if the same is not lost or destroyed, in time for these answers.” It was quite easy for him to put the ticket out of his possession, and pro« cure it to be destroyed. That would have literally satisfied the reason given. That the ticket has gone by any accident we are not told ; nor would even that be very satisfactory, in the face of the great caution which appears to have been taken by the attorney of Mr. Kelly, to fix on this defendant the alternative of an open contempt, or deliberate and rather hazardous perjury, in respect to service and contents, at least. After two such extraordinary denials, and an account of the document, which leaves so much room to suspect its wilful suppression, not to say a perjured misrepresentation of its contents. I suspect that had the excuses come in a more tangible shape, resting as they do upon the unsupported oath of the defendant, they could hardly be received. Falsus in unofalsus in omnibus, is a maxim which does not stop at nisi prius. All the rulps of- evidence which govern in the estimate of its weight or effect, are essential to the discovery of truth, whether addressed to a jury, or coming in the form of written answers or depositions.
The process of subpoena demands great and extraordinary effort, on the part of the witness, to obey. It commands him expressly to lay aside his business and excuses. And while it lays him under severe obligations, it clears away obstructions in the path of obedience. The witness was always privileged from arrest on civil process in going, staying and returning. It is not denied that serious sickness in his family, such as would prevent a prudent father or husband from leaving home on his. own important business, would save him from the imputation of a contempt, and perhaps from an action. But such a case ought clearly to be shown to the court, and not left to be judicially inferred by the witness, when arraigned on a criminal charge. . He may exculpate himself by swearing to facts, in ariswer to the interrogatories, provided he remains uncontradicted. But his oath must give facts as contradistinguished from his inferences. Above all, where • the summons allows hin%i full time, he should struggle to get
An affidavit was made by Mr. Kelly on the 13th of June last, which was affixed to the papers upon which the attachment issued, showing that the cause went off at the circuit under the advice of counsel, in consequence of Davis’ absence. We are satisfied that a loss has accrued by the misconduct of Davis, in not obeying this summons. 2 R. S. 535, § 1, sub. 5. In that case the statute, 2 R. S. 538, § 21, requires us to impose a fine to be paid over to the party aggrieved, equal to his loss, together with costs and expenses. The whole of these are claimed to be fifty dollars, which appears to be a moderate estimate for the costs of the circuit, and the'expenses of the proceeding on this attachment. The fine is, therefore, fifty dollars,
The reporter has the impression that it was referred to the clerk, to ascertain the costs of the circuit and of the attachment, and that he was directed to insert such sum in the order as should thus be ascertained.