Icehour v. Martin

Decision Date31 August 1853
Citation44 N.C. 478
CourtNorth Carolina Supreme Court
PartiesMARTIN ICEHOUR v. THOMAS MARTIN.

OPINION TEXT STARTS HERE

Two subpœnas are served upon a witness, requiring his attendance on the same day at different places distant from each other. He is not bound to obey the writ which may have been first served, but may make his election between them.

This was a scire facias against the defendant to enforce the forfeiture imposed by the Act of Assembly for his non-attendance as a witness. It appeared that the defendant was summoned as a witness for the plaintiff in a suit pending in the Superior Court of Mecklenburg county; and he was also summoned to attend as a witness in a suit pending in the County Court of Surry county, and which was for trial the same week with that of the Superior Court of Mecklenburg. The subpœna from Mecklenburg was first served on the defendant. He attended as a witness under subpœna at Surry, and could not attend both Courts the same week. The only question was, did his attendance at Surry excuse his non-attendance at Mecklenburg.

His Honor Judge BAILEY, before whom the case was tried, at Mecklenburg, at Spring Term, 1852, was of opinion with the defendant, and having given judgment accordingly, the plaintiff appealed to the Supreme Court.

Wilson, for the plaintiff .

Boyden, for the defendant .

PEARSON, J.

The defendant was under subpœna to attend as a witness at two places on the same day. To do so was impossible. He attended at one of the places, and shows this as cause for not attending at the other.

The plaintiff says, “my subpœna was first served, and, therefore, I had the best claim to your attendance.” The question is, does the fact that the subpœna in the plaintiff's case was first served, give him a paramount right, so as to entitle him to enforce the penalty of forty dollars given by statute, notwithstanding the cause shown?

The statute under which the plaintiff claims the penalty, makes no provision for such a case, and it remains to be seen whether there is any principle of the common law which sustains the plaintiff's right to enforce the penalty. The plaintiff says, by the principle of the common law, if A. agrees for a consideration to sell to B. a lot of cotton, and afterwards sells it to C., B. may maintain an action against A. for a breach of contract. Granted; but the principle does not apply to our case for two reasons: 1, the defendant made no contract to attend as a witness. The obligation to attend was...

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1 cases
  • State v. O'Malley
    • United States
    • Oregon Supreme Court
    • 29 d5 Dezembro d5 1967
    ...therefore he was only required to honor the subpoena first served upon him and appear in Baker. He relies upon the case of Icehour v. Martin, 44 N.C. 478 (1853), which appears to be the only case with facts similar to those here. In Martin the contemnor was subpoenaed to appear in the court......

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