Ex parte Peck

BETTS, District Judge. An objection is made to the granting of this motion, on the ground that it does not appear that the witness resides more than one hundred miles from the place of trial of the action. Act Sept 24, 1789, § 30 (1 Stat. 88). The question involved has been before this court several times recently, and has received careful attention. The severe measure of an attachment is only to be allowed when it is clearly necessary. It must first be made clearly to appear that the commissioner has jurisdiction in the matter, and that the witness resides more than one hundred miles from the place of trial of the action. These facts must be established by the applicant for the attachment. It must also be shown that the witness was called to testify to facts material and relevant to the issue in the case. The court will interfere in this summary way only to aid the plain demands of justice, and will not attach a witness for neglecting to testify, without evidence that his testimony is pertinent to the case, and such as the party is entitled by law to demand. In this case, the object seems to be to obtain access to papers in the possession of the witness, to be used in the case. Although, on the trial of a case in court, a witness may be compelled, by subpoena, to produce, under oath, papers within his control, which are proved to be material to the questions in issue, yet congress has provided a different mode for enabling the parties to a.suit to obtain papers which are in the possession of a thirdperson, and it is doubtful whether that object can be legally effected by the de bene esse examination of a witness out of court It appears that the subpoena in this case was issued without any preliminary evidence having been given before the commissioner, showing this to be a case in which a de bene esse examination could be lawfully had. The want of such proof is a vital objection to the issuing of an attachment. The attendance of the witness cannot be exacted by the high compulsory writ of attachment, unless the magistrate has clear cognizance of the matter. Motion denied.