
    Samuel Slaughter v. Geo. W. Birdwell.
    1. "WlTirass. Forfeitm-e against. Act of 1794- ch. 1 § 29. By the act of 1794, ch. 1, § 29, a witness who is regularly summoned is hound to attend from term to term, until discharged by the Oourt, or the party at whose instance he may have been summoned, under the penalty prescribed, unless, on the return of the scire facias, sufficient cause be shown by the witness “ of his incapacity to attend at the time and place mentioned in the subpoena.” This incapacity must be a personal one, of the witness himself, and the sickness of his wife or other member of his family will not excuse him from attendance.
    
      2. Question Reserved. In the case of Duke v. Given, 4 Ter., 478, the “incapacity” contemplated by the act of 1794, is held to mean a physical incapacity of the witness. "Whether or not this restricted sense of the term “incapacity” be warranted, does not arise in this case, and is not determined.
    FROM JACKSON.
    The demurrer to the plea of the defendant having been sustained by Goodall, J, and judgment final rendered, the defendant appealed.
    McHenry and Gardenhire, for the plaintiff in error,
    said:
    1st. The Court has no power after the adjournment of Court, or after the adjournment of the term, to make any addition to, or alteration of the record. Clark v. Lary, 3 Sneed, 81; Staggs v. The State, 8 Hum., page 372-5.
    2d. The laws authorizing forfeitures against witnesses are highly penal, and must be strictly pursued. Great strictness is required, because experience proves that the original subject of litigation “may be lost sight of, or become an object of less interest than to secure^ forfeitures against witnesses by one artifice or another.” That the party summoning the witness may, in addition to the penalty, recover damages commensurate with the injury, “furnishes another reason for a high degree of strictness in the proceeding to recover the penalty.” Ris-don Knott v. M. Smith, 2 Sneed, 246; 3 Hum., 225; 11 Hum., 72.
    
      3d. In this case the judgment nisi does not assume the facts necessary to give the Court jurisdiction. It does not show when the witness was summoned, whether by subpoena issued in vacation, or instanter. It must be seen from the judgment, that the defendant was summoned in compliance with the provisions of the act of 1838, ch. 131; (Nicholson’s Sup., 232,) and that he has incurred liability by refusing to obey the process. The time of service and the time he was bound to appear, ought to be seen from the judgment. Dick-enson v. Kincaid, 11 Hum., 72; Itisdon Knott v. M. Smith, 2 Sneed, 246.
    4th. The dangerous sickness of the witness’ wife or family, is sufficient cause of his incapacity to attend. The witness is bound to make extraordinary efforts to attend. Nothing but extreme poverty, or sickness of himself or family, or high water, or the like, will excuse him. But he will be excused if he show that in failing to attend, he was guilty of no negligence or wilful disobedience of the process. Peofle v. Davis, 15 Wend., 602; 3 United States Digest, 706; Maclin v. Wilson, 21 Ala. R., 670; 14 United States Digest, 603.
    J. P. MURRAY, for the defendant in error,
    insisted •that—
    The only question that legitimately arises in this cause, is upon the pleadings. The plaintiff in error, Samuel Slaughter, relies, as his only defence in this cause, on the sickness of his wife, and pleads that as a de-fence in this suit, to which we demur. The Court below sustained the demurrer, and the plaintiff in error failing to make any other defence, the interlocutory judgment was -made absolute. This action of the Court is sustained by a plain act of Assembly; see act of 1794, N. and C., 711, § 29. This act furnishes but two lawful excusos for the non-attendance of witnesses summoned in any cause: 1st. The discharge of the party summoning him. 2d. His physical incapacity to attend. N. and C., 712, § 29; Meig’s Digest, 1047, where the causes decided by this Court are collected, on the above subject.
   McKlNNEY, J.,

delivered the opinion of the Court.

At the November Term, 1855, of the Circuit Court of Jackson, judgment nisi was entered up against Slaughter for $125.00, for his failure to attend, as he had been duly summoned to do, as a witness for the plaintiff, in the suit of Birdwell v. Hall, then pending, and for trial in said Court.

Scire facias was issued and served on Slaughter, on the return of which, he pleaded in substance, “that he was unable to attend, because of the illness of his wife, who was confined to her bed, and so ill, that his attention to her was absolutely necessary to her comfort and safety.”

To this plea there was a demurrer, which, on argument, was sustained, and final judgment rendered against the defendant.

There is proof in the record tending to impeach the-truth of the plea. But we decline to notice it, as it was irregularly received, the judgment on the demurrer being decisive of the case.

By the act of 1794, ch. 1, sec. 29, a witness regularly summoned, is bound to attend from term to term, until discharged by the Court, or the party at whose instance he may have been summoned, under the penalty prescribed; unless, on the return of a scire facias, sufficient cause be shown by the witness, “ of his incapacity to attend at the time and place mentioned in the subpoena.”

In Duke v. Given, 4 Yer., 478, the incapacity ” contemplated by the statute, is held to mean a physical incapacity of the witness. Whether or not this restricted sense of the term “incapacity” be warranted, we need not now inquire. As we feel clear, that the facts alleged in the plea, do not constitute such an incapacity on the part of the witness to obey the command of the summons, as is contemplated by the act. The act obviously means that the incapacity, of whatever nature it may be held to be, must be a personal incapacity of the witness himself. This may seem to be a harsh requirement of the law; but, if so, the power to change it belongs not to the Courts. It must be remembered, however, that none others than a highly stringent law would be sufficient to enforce the attendance of witnesses in many cases.

Judgment affirmed.  