Carrington v. Hutson

By the Coukt : It was decided in Courtney v. Baker (3 Den., 27,) that in an action for the statutory penalty against a witness who had failed to attend, the plaintiff must show that the witness was material and that damages resulted from his non-attendance. That is, a sound construction of the law. There is no reason why a plaintiff should recover this penalty, unless he was aggrieved; that is, unless the [373] absence of the witness caused some injury. There is nothing in the Code Civil Procedure (§ 853) to change this rule of law. The judgment should be affirmed, with costs. . Present — Learned, P. J., Bookes and Westbrook, JJ. Judgment and order affirmed, with costs.