Legal Opinion

Hurd v. Swan

New York Supreme Court

Decided January 15, 1847PublishedCited by 3 opinions

Error to the Oneida common pleas. Swan sued Hurd before a justice, and having recovered, the cause went to the common pleas by appeal.

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Error to the Oneida common pleas. Swan sued Hurd before a justice, and having recovered, the cause went to the common pleas by appeal. A suit had been pending in this court in favor of the plaintiff against Delos Brett and others, which was noticed for trial at the Oneida circuit, held in Utica, on the fourth Monday of September, 1844. The plaintiff in the present suit sought to recover a penalty of $50, and also his damages sustained in consequence of the non-attendance of the defendant as a witness in the suit against Brett and others, pursuant to a subpoena. The defendant lived at…

1Opinion of the Court

By the Court, Bronson, Ch. J.

There is a nisi prvus decision of Lord Kenyon, that the plaintiff in an action cannot maintain a suit against a witness for non-attendance in pursuance of a subpoena, unless the cause was called on, and the jury sworn : that it is not enough that the plaintiff was obliged to withdraw his record in consequence of the default of the witness. (Bland v. Swafford, Peake's Cas. 60.) But that case was first doubted, (Barrow v. Humphreys, 3 B. & Ald. 598,) and then overruled. (Mullett v. Hunt, 1 C. & M. 752; 3 Tyr. 875, S. C.) It is enough that the witness failed to…

2Cases cited2 opinions

  1. Courtney v. BakerNew York Supreme Court · 1846
  2. Wilkie v. ChadwickNew York Supreme Court · 1834

3Cited by3 opinions

  1. In re BoeshoreU.S. Circuit Court for the District of Eastern Pennsylvania · 1903
  2. Wheeler v. LozeeNew York Supreme Court · 1856
  3. Downey v. FennNew York Supreme Court · 1910

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