#### The State *against*John M. Trumbull.

ON MOTION FOR ATTACHMENT.

IT appeared by the affidavit of *William, Gibbons*that *Trumbull*had received a regular and legal notice of the present motion; and the facts developed upon the ing, were as follows.

Attachment against witness. (a)

Recognizance to give evidence. (b)

At the last *April*Circuit in the county of *Essex,*cause of *Aaron Ogden*against *Thomas Gibbons,*in trespass, was noticed for trial. Previous to the circuit, on the .1 Oth of *April, Joseph Periam,*as the agent of *Thomas Gibbons,*served a subpoena on *Trumbull,*by delivering it personally to him, together with the sum of fifty cents; but the place where the service was made, was not shewn. *Trumbull*appeared at the early part of the circuit, but he had been informed that there were several causes on the list before it, and that it would be some days before it was called. He therefore went to the city of *New- York,*where he had a cause of great importance depending and to be tried; and the court was in session. The previous causes went off unexpectedly, and when this of *Ogden*and *Gibbons*was called, *Trumbull*was not present. In consequence, Mr. *Gibbons*made the usual affidavit of his materiality, and of the service of the subpoena, in order to obtain a postponement of the trial. Upon which the plaintiff, Col. *Ogden,*offered to procure his return, *by the time the court met in the afternoon. This offer was declined, and the trial postponed.

The motion for attachment was supported by Mr. *Gibbons*himself, and Mr. *Vanarsdale*as counsel.

*Chetwood*and *R. Stockton,*for defendant.

(a)

*State vs. Hollinshead, 1 Har. 539. Murray vs. Elston, 8 C. E. Gr. 212. State vs. Newark & Pompton Turnpike Co., Pen. *339.*

(b)

 Allowed in criminal case *State vs. Zellers, 2 Hal. 220.*

By the Court.

A witness wrho disobeys a subpoena regularly served upon him, is liable to be punished by attachment ; yet the proceeding is, in this court, a most *158novel one. It is not recollected that there has been one of the kind, before this, in the space of twenty years. The facts ought to be clear and strong, to justify a party in pursuing this remedy, or the court in granting it. Two facts are especially necessary. 1. That the process be strictly and legally served. Here there is a defect in the proof of the service. It does not appear where the subpoena was delivered. It might have been where the defendant was not bound to yield it obedience; out of the jurisdiction of the court; out of the limits of the state. But, in the second place, mere service of the process, is not enough. It must also appear that the disobedience was of such a nature, as to indicate a design to contemn the process and authority of the court. It is the contempt, which is punishable in this summary way. In the present instance, there is not the slightest appearance of any intention to disregard the process or authority of the court. The defendant had yielded obedience, and when he left the place, it seems to have been under a well founded apprehension, that his presence would not, at that time be required. Besides, he was in another state, and attending to necessary business, of deep importance to himself. The court, therefore, see no ground for the attachment.

Mr. *Gibbons,*then suggesting that he apprehended a connexion between plaintiff and witness, and an intention to evade giving evidence; moved that the defendant be bound in recognizance, to appear and give evidence in the cause, at the next circuit.

But by the Court. There is no justification, either in the law, or the facts of the case, for such an order. The party must take his own mode and use the proper process, to effect the attendance of his witnesses.