State v. Dozier ( 1806 )

Celia Coen was bound over to the County Court by a magistrate, who issued a subpœna for the defendant to attend there. The subpœna was returned to the court, upon which the witness was called and failed to appear. Two sci.fas. issued, upon which nihils were returned. Judgment and execution. The petition stated that the defendant was sick at the court to which the subpœna was returnable, and never heard any thing of the proceedings. The first notice was the execution. The first ground taken by the defendant's counsel is not tenable; the petition does not show that he applied to the County Court for a remission of the fine; every court ought to have the power of enforcing its process: nor should this court interfere, unless in cases where improper means had been used.¹ Application ought to have been made to the court where the fine was imposed, supposing the subpœna to have been properly issued and served; his not knowing of thesci. fa. would not authorize the interference of this court. Actual service is not indispensable. Upon adverting to the language of the Court Law, when speaking of the sci. fa. it uses the words "making known" precisely the same as in the case of bail, in which the practice is settled as it is in England. Two nihils are equal to actual service; the same practice is proper in this case.

Upon the second ground, the process of subpœna being void, all subsequent proceedings must of course be so. On this ground alone the petitioner ought to be relieved.

Let the fine be remitted.

¹ 3 Binn. 277, 417.