
    Connett, Appellant, vs. Hamilton, Respondent.
    1. An action under the seventh section of the act concerning witnesses, (R. S. 1845,) against a person for failing to attend as a witness, when duly summoned, &e., may he begun before the determination of the suit.
    2. In such a case, a transcript of the subpoena served on the party, and of the record of a part of the proceedings in the ease, is admissible evidence, although the full record is not offered.
    
      .Appeal from Buchanan Circuit Court.
    
    Loan, for appellant.
    The transcript of the record of the subpoena, issued from the office of the clerk of the Clinton Circuit Court, and which, was served on the defendant, James Hamilton, was legal and competent, and tended to prove, in part, matters material to the issue before the jury.
   RylaND, Judge,

delivered the opinion of the court.

The facts of this case appear from the record, as follows :

William C. Connett, the appellant, commenced his action before a justice of the peace, on an account, the statement of which, as filed with the justice, is as follows :

“ Mr. James F. Hamilton,
To William C. Connett, Dr.
“ For twenty-four dollars and ninety-five cents that Con-nett was compelled to pay for costs adjudged against him by the Clinton Circuit Court at the April term thereof, 1850, in the case of William C. Connett v. Levi Judah, upon Ms (Connett’s) application for a continuance of said cause, which said application was made by reason of the said Hamilton’s failure to attend the trial of said cause, and to bring with him a certain deed, after haying been duly subpoenaed so to do, and after having his legal fees therefor paid to him, - f24 95
Also, for the sum of four dollars and fifty cents fees paid to said Hamilton as a witness in the case of Connett v. Judah, after having been duly subpoenaed, and before the day set for trial, and wherein you failed to obey the requisitions of, the .subpoena, 4 50
“ For damages sustained by reason of your failure as aforesaid, - - - - - - - 20 00
“Amount claimed, - $49 45
“ WILLIAM 0. CONNETT.”

Judgment was rendered by the justice in favor of Hamilton. Connett appealed, and on the trial in the Circuit Court, he offered to read in evidence, as a part of his testimony, the following transcript:

State oe Missouei, )
County of Clinton, ) S

Re it remembered, that on the 28th day of February, A. D. 1850, there issued out of the office of- the Circuit Court, within and for the county of Clinton, aforesaid, in the case of William C. Connett against Levi Judah, then pending in said court, a subpoena duces tecum,, in the words and figures following, to-wit:

The State of Missouri,
To James Hamilton :

You are hereby commanded, that, all excuses and delays being laid aside, you be and appear before the Judge of our Clinton Circuit Court, at the court house in- the town of Plattsburg, on the 17th day of April, A. D. 1850, it being the third day of the next term of sáid court, and that you bring with you and produce at the time and place aforesaid, a certain warranty deed, executed by Jacob Reece and Elizabeth' Reece, and conveying to James Hamilton the north half of the south-east quarter of section number thirteen, in township number fifty-five, of range number thirty-six, in Buchanan county, in the State of Missouri, bearing date on the 26th day of August, 1847, and then and there to testify and show, all and singular, those things which you know or the said deed doth import, of and concerning a matter of controversy in said court depending, between William C. Connett, plaintiff, and Levi Judah, defendant, on the part of the plaintiff: hereof fail not at your peril.

Witness, Winslow Turner, clerk of our said court, with the , . seal thereof affixed, at Plattsburg, this twenty-eighth < L. S. > day of February, A. D. eighteen hundred and fifty.
Winslow TurNEr, Clerk.

On which said subpoena is the following return by the sheriff, to-wit:

I served the within subpoena by reading the same to James F. Hamilton, on the 8th day of April, 1850 ; said Hamilton demanded Ms fees in advance, which were not paid by me.

William W. Reynolds,
Sheriff of Buchanan county.

And, afterwards, to-wit, at a term of said court, begun and held at the court house, in the town of Plattsburg, on the 15th day of April, A. D. 1850, among other were the following proceedings, to-wit:

Tuesday, April 16th, 1850.
William C. Connett, t
vs. }• Trespass.
Levi Judah. .

By consent and agreement of the said plaintiff, it is ordered by the court that the costs of the attachment ordered against Edward A. Beauchamp, for not attending as a witness in this cause, be taxed against the said plaintiff; and it is further ordered, that the said attachment be dismissed.

Wednesday, 17th, 1850.
William C. Connett, '
vs. r Trespass.
Levi Judah.

And now here come the Said parties by their attorneys, and, on motion of the said plaintiff, it is ordered that this cause be continued until the next term of this court, and that the said plaintiff pa'y the costs of the present term of this court.

State oe Missouri, ) gg County of Clinton, 5

I, Winslow Turner, clerh of the Circuit Court, within and for the eounty aforesaid, do hereby certify that the foregoing two pages contain true copies of the subpoena to James HamiL ton, issued in the case of William C. Oonnett against Levi Judah, and of the sheriff’s return thereon; and also, of all the entries made in said case, at the April term, 1850, of said court.

In testimony whereof, I hereunto set my hand and affix the , . seal of said court, at Plattsburg, this ninth day of Í L‘ s- r January, A. D. eighteen hundred and fifty-one.
v>rv^ Winslow TurNer, Clerk.
William C. Oonnett, vs. j" Levi Judah. J
In the- Clinton Circuit Court.

Rill of the costs in the aboye entitled cause, adjudged against the said William C. Oonnett, at the April term, 1850, of the Clinton Circuit Court:

To William W. Reynolds, sheriff:
For serving subpoenas on six witnesses, at 50 cents, $3 00 To John Steel, sheriff :
For calling cause and parties, . - - - - 30 To Jacob Reece, witness:
For one day’s attendance and thirty-six miles travel, 2 80 To Benjamin McCray, witness :
For one day’s attendance and forty miles travel, - 3 00 To Isaac Lower, witness -.
For one day’s attendance, and sixty miles travel, - 4 00 To James Isaacs, witness :
For one day’s attendance and sixty-four miles travel, 4 20
Amount carried forward, $17 80
Amount brought forward, $ IT 30
To James F. Hamilton, witness :
For one day’s attendance and sixty miles travel, - 4 00 To Winslow Turner, clerk :
For six subpoenas, at»50 cents, - §3 00
For filing four subpoenas, - - 20
For appearances, — 20
For continuance, - 25
- 3 65
Costs of tbe attachment against E. A. Beauchamp, 2 75
§27 70
ss. State oe Missouri, ‘ County of Clinton,

I, Winslow Turner, clerk of the Circuit Court, within and for the county aforesaid, do hereby certify that the foregoing is a true and correct taxation of the costs adjudged against William C. Connett, at the April term, 1850, of said court, in the case wherein said William C. Connett was plaintiff, and Levi Judah was defendant, and that the said William C. Con-nett has paid said costs.

In testimony whereof, I have hereunto set my hand and affixed the seal of said court at Plattsburg, this ninth ’ S. 5- ¿lay of January, eighteen hundred and fifty-one.
Winslow Turher, Clerk.
Clerk’s cost, 75 cents.

To the reading of which the defendant objected. The court sustained the objection and excluded the transcript. The plaintiff excepted to the opinion of the court. He afterwards took a non-suit, with leave to move to set the same aside. He af-terwards and in due time filed a motion to set aside the non-suit and for a new trial, and therein he assigned the following reasons as cause therefor.

The court improperly excluded the transcript from the Circuit Court records of Clinton county, which was offered in evidence by the plaintiff.

Said transcript should have been allowed to go to the jury, but was improperly excluded by the cotrt. The court overruled said motion. The plaintiff excepted and tendered to the court a bill of his said several exceptions, and he now brings said cause into this court by appeal, and has assigned for errors the said several opinions of the court below to which he had excepted.

The question before this court involves the propriety of the action of the Circuit Court in excluding and rejecting the evidence offered by the plaintiff below.

In the opinion of this court, the transcript should have been admitted; it was proper evidence to prove that a subpoena had been issued and served on the defendant. The evidence, so far as the subpoena is mentioned, was material and relevant, and ought to have been allowed.

It is our opinion that the properly authenticated copy of a subpoena, issued by a clerk in a suit, is evidence in some cases, and for some purposes, to prove that there was such a suit.

But should the party wish to show what the action was brought for, or what was determined by the court in the suit, or where the original suit becomes the foundation of a subsequent action, there the full record must be offered, and not an extract of it.

1. But in this case, long before the original suit may be determined, for aught we know, the plaintiff here, having caused a subpoena to be issued and served on a witness, who has failed or neglected to attend and obey its mandate, may surely sue such witness, without waiting for a determination of the suit, so as to get a full and complete transcript of the whole case, and on such suit, the subpoena, properly authenticated, would be evidence, and should be admitted, otherwise no action can be maintained by either one of the parties to a suit against a witness who wilfully or negligently causes material injury to him. The right of action against the witness is complete whenever he fails to attend, being properly_ subpoenaed, and his fees, &c., tendered to him, and such failure has been productive of damages to tbe party subpoenaing him, and this right may be enforced by action before tbe determination of tbe suit wherein witness was summoned to attend.

2. Tbe Circuit Court erred, therefore, in rejecting tbe evidence offered by tbe plaintiff below. Tbe other Judges concurring, the judgment is reversed and cause remanded.  