Legal Opinion

Chalmers v. Melville

New York Court of Common Pleas

Decided December 15, 1852Published

This was an appeal from an order denying a motion for an attachment against a witness, as for a contempt of court, in disobeying a subpoena. The writ was served at about 12, noon, on Saturday, returnable before a referee at 3½ on the afternoon of the same day. The witness had closed his house, and his family were, at the time of the service, already on board the steamboat for Long Branch.

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This was an appeal from an order denying a motion for an attachment against a witness, as for a contempt of court, in disobeying a subpoena. The writ was served at about 12, noon, on Saturday, returnable before a referee at 3½ on the afternoon of the same day. The witness had closed his house, and his family were, at the time of the service, already on board the steamboat for Long Branch. These facts were explained to the party making the service, and the witness expressed his willingness to attend before the referee upon his return to the city, the Monday following. It was remarked, by Daly,…

1Opinion of the CourtBy the Court. Woodruff, J.

I have no hesitation whatever in saying, that the order appealed from should be affirmed. A party, on whose behalf a witness is summoned to testify, has it in general in his power to issue his subpoena, and give the desired witness the most ample time to make the arrangements necessary to enable him to attend without injury, and usually without inconvenience, to himself; and where he does give the witness reasonable notice, none but the clearest evidence of inability, or such sickness in his family as would create a higher duty to remain at home, should excuse his disobedience.

But when the…

2Cases cited1 opinion

  1. People v. DavisNew York Supreme Court · 1836

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