#### JOSEPH ELLER *vs.*WILLIAM B. ROBERTS.

Where a witness alleges that he was unable to attend court, this inability must be decided by reference to the modes of travelling, which are In use in the community,

December 1842.

If modes of conveyance to the court, which are not impracticable, exist, and nothing is shewn, on'the part of the person summoned, that these were not within *his*power, his non attendance cannot be attributed to inability. <■

This was an appeal from the Superior Court of Law of Buncombe county, at Fall Term, 1842, his Honor Judge Pearson presiding. A *sci. fa.*was issued' against the.defendant, to shew cause why the fine imposed upon him *nisi*for not attending as a witness at the April Term, 1839, of Buncombe Superior Court of Law, should not be made absolute. The defendant relied’upon his plea, that he was unable to attend court, in consequence of an injury upon his knee. One witness swore that, on the Thursday before April Term, 1839, of Buncombe Superior Court, the defendant *cut his knee badly ivith a wood-axe*— that on Sunday, the defendant started to court, and came back on Tuesday — that the defendant’s knee *was stoell&d very badly*— that he was not able to get about to work for some time — that witness thought it might have injured the defendant to ride, for it was about two weeks before he was able to get about to work. Another witness, a son of the defendant, deposed that the defendant staid at his house on Sunday night, on his way to court — that his knee was cut and swelled badly. On his cross-examination, he said his father came on horseback, and went off on horseback — that he had no crutch or stick, and got on and off his horse without any assistance— that the defendant lived about forty miles from the courthouse, and the witness about ten miles. Another witness swore, that, on Monday evening of the court, he met thede-*12fendant about three miles from the court-house — that he said was going home — that he had been to court to file a petition for a divorce, and had expected Eller (the present plaintiff) to become his security, but Eller had refused — that the defendant told the witness he had cut his knee with a broad-axe the week before, but did not shew the wound, or complain more about it. The case in which the defendant was a witness, was tried on Wednesday of the second week of the court.

The Court charged, that, to make out the defence, it was necessary for the Jury to be satisfied, that the defendant was unable to come to Court, either to walk, ride on horseback, or in a carriage or wagon, without pain or great inconvenience, or danger of making the wound worse by the exertion— ' that when a witness was too poor to pay his expenses, or was in a condition making a carriage or wagon necessary, and notified the party, at whose instance he had been summoned, ánd the party neglected to furnish the money, or the necessary conveyance, it would be a good excuse for not coming: but, in this case, the simple question was, whether the wound on the defendant’s knee was so bad, that he was unable to come, either on horseback or in a carriage or wagon, without pain and danger of making the wound worse— that, if so, it was unreasonable for the plaintiff to expect him to come — if not, then he„ had no good excuse for failng to come.

The jury found in favor qf the plaintiff, and a motion for a new trial on the ground of error in the Judge’s charge having been made and refused, and judgment having been rendered for the plaintiff, in pursuance of the verdict, the defendant appealed to the Supreme Court.

*Francis*and *Woodjin,*for the plaintiff.

No counsel for the defendant.

Gaston, J.

We see no error in the instructions complained of. They are quite as favorable as the defendant had a right to ask. He alleged, (as a justification for his disobedience to the subpoena, inability*to attend Court. This inability must be passed upon, and decided by reference to *13the modes of travelling, which are in use in the community. If one mode of conveyance be impracticable, but exist which are not impracticable, and nothing is shewn on the part of the person summoned to establish that these were not within *his*power, his non-attendance cannot,be attributed to inability. Upon the evidence stated, admitting it to be true, it was scarcely possibly for any Jury to find the defendant’s plea in his favor, and he could ask for no instruction, which would have warranted such a verdict.

The Judgment must be affirmed with costs.

Per Curiam. Judgmeut affirmed.