delivered the opinion of the court. In November last a rule was obtained by the attorney-general, calling on the defendant to show cause, on the first day of this term, why an attachment should not issue against him for not appearing as a witness !"ei ucen the People and Richard Riker, after being regularly *334served with a subpoena. The defendant shows for cause, and by affidavit, without personally appearing in court, that “a ticket, which is annexed to his affidavit, was served on him, but that no subpoena was shown to him at the time and further, that there was an indictment pending in the oyer and terminer against Eiker, who was bound to'appear in that court, and not at the term.”
It is insisted that the defendant should have shown cause in person, and that the facts disclosed by his affidavit, if cause can be shown in that way, are not sufficient to prevent the rule for an attachment being made absolute.
In the case of The People v. Freer, 1 Caines’ Rep. 485, cause was shown, as here, by affidavit, and although the court say that “ on such occasions the defendant ought to appear in person and- answer,” that point was not raised, and of course ought not to be regarded as settled.
Nor is it important to ascertain what is the mode in England. In a point of practice, and this is nothing more, we certainly may adopt a rule for ourselves, and alter it again if it become inconvenient. Ve all think it would produce great oppression, and unnecessary expense, to compel a party, who may be perfectly innocent, on a rule to show cause, to appear in person. "Why bring a man from Ontario. to New York, to swear that he was sick, and therefore unable to attend on a subpoena, whén that fact can be as easily communicated by his affidavit properly taken ? An attachment might almost as well go in the first instance. We, therefore, think the defendant’s personal • attendance was unnecessary.
The merits of his affidavit are next to be examined. It appears by the ticket left with him, that the name of the city in which the court was to be held is omitted, Bodwell v. Willcox, ante, p. 104. The terms of this court, and the places of its meeting being regulated by a public act, we think the ticket good, notwithstanding this omission, especially too as the defendant does not pretend ignorance on this head, and is a counsellor of this court. Neither is it important that tbe indictment, on tbe trial of wbicb be was to testify, was found, and then pending, in tbe oyer and terminer. Tbe attorney-general could bave brought *it into tbis court for trial, on tbe return day of tbe subpoena, wbicb would bave beeen sufficient.
The greatest difficulty arises from tbe defendant’s denial tbat a subpoena was shown to him at tbe time of leaving the ticket. But as tbe officer who served it swears positively to tbis fact, we think some further explanation necessary. Tbe defendant does not say tbat a subpoena was at no time shown to him, nor tbat tbis was tbe only ticket he received. It is probable tbe officer, on recollecting tbe mistake, may bave returned and shown it, or tbat be made an entire new service, or that something may bave passed rendering tbe exhibition of a subpoena unnecessary. At any rate, we think tbis ma.tter ought to be further inquired into, and tbat therefore tbe rule for an attachment be made absolute.
Attachment ordered.