
    The State vs. Lacy.
    A scire facias to have execution for the penally of a subpoena must show by direct averment, of the time of the service of the subpoena, and of the time of the trial that the defendant was bound to attend at that time. See art 1794, ch. 1, sec. 33, N. & C, 712: 1794, ch. 1, sec. 10, N. & C. 547: 1837-8, session acts, 196.
    The record in this case shows, that at a circuit court held for the county of Campbell, at Jacksborough, on the first Monday in May, 1840, the following judgment was rendered, to wit:
    “This day came the attorney general, who prosecutes on behalf of the State, and Levi Lacy, Bluford C. Burris and Aaron Sharp witnesses, who had been regularly summoned to appear and give evidence on behalf of the State of Tennessee against the defendants, as they were bound to do, came not, but made default. It is, therefore, considered, that the State recover against the said Lacy, Burris and Sharp for the default aforesaid, and that they pay to the State of Tennessee the sum of $250 each, according to the act of assembly in such case made and provided, unless they show good and sufficient cause to the contrary upon scire facias to them made known, and that a scirefacias issue, returnable to the next term of this court.”
    This scire facias was issued on the 14th day of May, 1840, and is in the following words, to wit:
    “Whereas, heretofore, Levi Lacy, Bluford C, Bum's and Aaron Sharp were summoned as witnesses to appear before the judge of the circuit court, at the court house at Jacksbo-rough, to give evidence on behalf of the .State, in a case wherein the State was plaintiff and H. Montgomery, J. Montgomery and J. Hays were defendants, and at the May term of the circuit court for the county of Campbell aforesaid, said cause coming on to be tried, and the said Lacy, Burris and Sharp, each being solemnly called to come into court as they were bound to do, and give evidence in behalf of the State in said cause, came not, but made default. It was, therefore, considered by the court, that said Lacy, Burris and Sharp, for the default aforesaid, forfeit and pay to the State of Tennessee the sum of $250 each, according to the act of assembly in such case made and provided, unless they show good and sufficient cause to the contrary, upon scire facias to them made known, &c. &c.
    We, therefore, command you to make known to said Sharp, Burris and Lacy the tenor of this writ, and summon them, &c. &c. to show cause, if any they have, why the State of Tennessee shall not have final judgment and an execution against them, severally, for the recovery so had as aforesaid,” &c. '
    This writ was served on Lacy, and returned not found as to the others.
    The defendant, by his attorney, filed a demurrer to this writ, and Gray Garrett, the attorney general of the district, joined in demurrer. The demurrer was argued at the September term, 1841, and sustained.
    The attorney general, on behalf of the State, appealed.
    
      Attorney General, for the State.
    
      J. A. McKinney, for the defendant.
   Reese, J.

delivered the opinion of the court.

Lacy, Burris and Sharp were summoned to appear before the circuit court in the town of Jacksborough, to give evidence on behalf of the State against Hugh and John Montgomery and J. Hays. These witnesses did not appear, and a joint judgment nisi Was rendered against each of them for the sum of 1250. On this judgment a joint scire facias was issued against them for the purpose of having executions against them each for the said sum of $250. This writ was served on defendant Lacy, and returned not found as to the others.

Lacy filed his demurrer to the scire facias. This demurrer was sustained by the circuit court, from which judgment the State appealed in error.

Unquestionably the joint judgment against the witnesses was irregular, and the issuance of a joint scire facias was still more irregular. But without deciding whether or not the demurrer should have been sustained on the ground of the irregularity of the judgment and the scire facias, we are satisfied that it was properly sustained upon the ground, that the scire facias does not show by any direct averment as to the time of the service of the subpoena, and of the time of the trial, that the defendant was bound by the subpoena to attend at that time. The scire facias alledges that the defendant was “heretofore,” that is, before the issuance of scire facias, summoned, and that the trial took place at the May term of the court, without stating in what year, and that the witnesses afores aid, being called, made default. Surely this statement of the service of the process, of the time of the trial and of the existing liability and duty of said witness, is loo vague. There should have been such a statement of the facts as would have shown directly, and not by mere inference only, the legal liability of the defendant.

The demurrer must, therefore, be sustained, and the judgment affirmed.

InTotjs — 1. As to compelling; attendance of witnesses by recognizance and by subpoana. See act of 1715, ch. 16, sec. 1, N. & C. 426: 1794, ch. 1, sec. 33, N. & C. 712: 1 Starkie 76, 1 Ch. Cr. L. 608, 90, 91: 3 Blackstone 369.

2. As to the remedies by action and attachment against witnesses, who have failed to obey subpcena, or appear according to recognizance, see same authorities. Also Bacon’s Ab. Tit. Evidence, letter D. for the statute of 5th Elizabeth; 2 Dallas, 333.

3. Defence by a witness.

1. A witness duly summoned to attend, is bound to make extraordinary efforts to obey the writ; nothing but extreme poverty and utter inability to attend: or sickness of himself or family conclusively proved, will excuse his non-attendance. The People vs. Davis, 15 Wend. 602.

2. It is a good defence for a witness, against whom a forfeiture has been taken, that the party who subpoenaed him discharged him, or told him to attend or not, as he might find it convenient, but witness’ own affidavit is not evidence, 4 Yerger 473.

3. Compensation and remedy, therefor; See M. & Y. 38: 2 Yerg. 230, 323.  