If distringas be made of by proviso.

(If the defendant makes out the distringas, by proviso, after the words, many defaults, insert the following proviso) Provided always, that if two writs shall come to you thereupon, then you execute and return one of them only; and have there the names, &c.

66

Distringas for George, &c. to the sheriffs of London, greeting: we a special jury. command you, that you distrain J. L. of, &c. J. O. of, &c. (and so on, till you come to the end of the master's list,) then add the jury summoned in our court before us (as in a common one;) and if there is a view after the word (default) add this," and in the mean time, ac"cording to the form of the statute in such case made "and provided, we command you, that you have six or "more of the first twelve of the said jurors, to take a "view of the place in question, on the day of and that the said jurors meet on the same day, "at the house of (as in the rule) in your city, "and proceed from thence to view the said place, in the "presence of T. B. on the part of the plaintiff, and G. H. "on the part of the defendant, appointed by our court be'fore us, to shew the said place to such of the said jurors as shall come to view the same; and that you make appear to us at Westminster, on the said day, in what manner you shall have executed this our command, "and have there then this writ. Witness Edward Lord "Ellenborough," &c.

If for a common jury.

The use of this process.

Subpoena to testify.

5s. stamp.

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66

66

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And in the mean time, according to the form of the statute in such case made and provided, we command you, that you have six or some greater number of the said jurors who shall be mutually consented to by the said A. B. and C. D. or their agents, to take a view of the place in question on the day of and that the same jurors meet (as above.)

SUBPOENA AD TESTIFICANDUM.

FREQUENTLY witnesses will not attend voluntarily; therefore for the administration of justice, it was thought necessary that there should be some compulsory process to bring them to give their testimony; which process is by writ of subpoena ad testificandum, the form whereof is as follows:

George the third, &c. To J. D., R. R., &c. (a) greet

(a) Four witnesses may be put in one subpoena. Cowp. Rep. 646.

ing: we command you, that all excuses being laid aside,
you and every one of you be, in your proper persons, be-
fore our right trusty and well-beloved Edward Lord
Ellenborough, our chief justice, assigned to hold pleas in
our court before us, at the Guildhall of the city of London,
or "at Westminster-hall in the county of Middlesex" (if
in Middlesex :) (if at the assizes, say, "before our justices
"assigned to hold the assizes in and for the county
"of
") on the
day of
said county, by

at

in the

of the clock in the forenoon of the same day, to testify all and singular what you, or either of you know, in a certain cause now depending undetermined in our court before us, between A. B. plaintiff, and C. D. defendant, of a plea of trespass on the case Teste it the (as the action is) on the part of the plaintiff, (or on the last day of part of the defendant) and at that day to be tried by a jury of the county: and this you, or any of you, shall by no means omit, under the penalty upon each of you of 1001. Witness, Edward Lord Ellenborough, &c.

Law and Markham.

the term.

Middlesex subpoena, to testify between A. B. plaintiff, Præcipe for and C. D. defendant, on the part of the plaintiff.

To be signed by Messrs. Provost and Chambre; pay 1s. 8d. and 7d. seal; serve each witness with a copy personally; pay ls. in town; if in the country the party must have his expences tendered him.

subpœna.

If a cause appointed for one sitting is made a remanet, If a remanet. the subpoena must be re-sealed, and re-served.

In Sydenham v. Rand, T. 24 Geo. 3. It was determined, that where a notice in writing is given in such case for the last sitting, instead of a subpoena, the court will not grant an attachment thereon against the witness for non-attendance. Same case, and Gillet v. Mawman, T. 47 Geo. 3. C. P. Ibid.

time must be

given.

There must be a reasonable time before the day of trial; Reasonable for witnesses ought to have a convenient time to put their own affairs in such order, as that their attendance upon the court may be of as little prejudice to themselves as possible. 1 Str. 510. Hammond v. Stewart. The subpœna was served at two in the afternoon, to attend the sittings that day in Middlesex.

expences must

Where the witness lives at a greater distance than Reasonable London, he is not obliged to attend, unless his reason- be tendered. able expences are paid or tendered him, not only for

Action lies for them if not

paid, although not examined on that account.

An attach

going to, but also for returning from the trial; and where less is offered, the witness is not obliged to trust to the court's allowing him more when he comes to the book, for perhaps the party may not call him, and then it may be difficult for him to get home again. Fuller v. Prentice, 1 H. Bl. 49. 2 Str. 1150. Chapman v. Pointon.(a)

One who is subpoenaed as a witness, and attends the trial, but refuses to give evidence unless expences paid, and not examined, may maintain assumpsit for his necessary expences. Hallet v. Mears, 13 East, 15.

I take the law to be that a witness is not to be a judge whether he be a material evidence or not; he is bound to obey the subpoena.

An attachment lies against an attorney in the cause for ment against non-attendance upon a subpoena to give evidence of collateral facts. Wyatt v. Winkworth, 2 Str. 810. Ld. R. 1528. (b)

an attorney

for non-at

tendance.

So against a

peer.

Cause must

make a wit

ness liable.

And it may even be had against a peer of the realm. Cow. R. 845. See Rex v. Dixon.

As to an attorney being subpoenaed with a duces tecum to give evidence of a charge of forgery on his client, 3 Burr. 1687.

To make a witness liable, in an action for his non-atbe called on, to tendance, the cause must be called on and jury sworn. Bland v. Swafford, Peake's Cas. 62. Withdrawing the record on that account will not do. The court has no jurisdiction till such time as the jury are sworn. Kenyon.

If witness

does not at

he is liable.

Lord

If the witness does not attend, he is liable, 1. Either tend, to what to an attachment; 2. A special action on the case, Doug. 561.; 3. Or the penalty of 10l. by stat. 5 Eliz. c. 9. s. 12, and also for the further recompence given by that statute, if it has been previously assessed, by the court out of which

(a) The expences of a person sent to inquire after the subscribing witnesses to a bond are not allowed on taxation of costs. Laing v. Bowes, 3 Maule and Selw. 89.

(b) It is said, that if the witness is not served personally with a copy of the subpoena, it is not sufficient to warrant a proceeding criminally against him. Smart v. Whitmill, 2 Stra. ¡C54. But if served personally, there can be no doubt of an attachment for non-attendance. Ibid. 810. Wyat v. Winkworth.

the process issued. Ibid. Pearson v. Iles: But not by the jury or judge of nisi prius. The punishment will be remitted, if the witness make satisfaction. Doug. 560.(a)

when neces

sary.

If any person has in his possession any writings, deeds, Subpoena books of account, or other things, which may be neces- duces tecuma sary to produce at the trial, he should be served with a subpoena duces tecum; but if the plaintiff or defendant are to produce, or the attornies, then a notice to them will be sufficient. 3 Term Rep. 306.

"George, &c." as in the former one, as far as the place Subpoena of trial, then say, And that you bring with you and pro- duces tecum, duce at the time and place aforesaid, a deed of assign- 5s. stamp; ment, bearing date (describe the thing to be produced,) 78. signing is. 8d. and then and there to testify and shew all and singular those things which you or either of you know, or the said deed or instrument doth import, of and concerning a certain action now in our court before us depending, between, &c. (as in the former one); it is signed with Messrs. Provost and Chambre, and sealed.

This writ is of compulsory obligation on a witness, to Compulsory produce papers thereby demanded, which he has in his obligation. possession, and which he has no lawful or reasonable excuse for withholding: of which the court, and not the witness, is to judge. Amey v. Long, 9 East, 473.

It is likewise decided in the same case that an action As to bringwill lie against a party refusing to produce a paper in his ing an action actual possession; and it is no defence that the legal title if disobeyed. to such paper is in another person. 1 Camp. N. P. Rep. 14.

This writ is not to be found in Registrum Brevium, nor any where else prior to the term of Car. 2. when it is to be found in Clerk's Manual 31. Thesaur. Brev. 304. and Officina Brevium 385. Registrum Brevium does not contain the common subpoena. See Doug, R. 556, 561. where witnesses have been proceeded against as for a contempt before the stat. 5 Eliz. c. 9.

(a) The motion for an attachment must be made as soon as possible: the court refused an attachment in Hilary term, for non-attendance at the preceding assizes, and left the party to his civil remedy.. v. St. Leger,

H. 37 Geo. 3.

Of the habeas
corpus ad tes-
tificandum;
5s. stamp.

Sailors on

of war.

Of the Ha. Corp. ad Testificandum.

This writ issued where a witness is confined in prison, directed to the marshal, sheriff, &c. in order to bring him before the court where the cause is to be tried, to give evidence on the part of the person who sues it out.

This writ cannot be obtained either by motion in court or before a judge, without an affidavit made by the party applying, that the witness is a material one. Fart. 396.; and it must be signed by a judge, or of no effect. Cowp. 672. If it appear to be a contrivance to get the witness out, court will refuse it. 3 Burr. 1440. Rex v. Burbage. (a)

If sailors on board a ship of war, are to be produced as board a ship witnesses, and have been served with a subpoena, and say they will attend, a habeas corpus may be applied for to the chief justice, on affidavit of that fact, and that they are material witnesses; but without which no ha. corp. can issue. Rex v. Roddam, Cowp. Rep. 672. 4 East, 587. In re Ed. Price.

Prisoner of

war.

Court thought there could be no ha. corp. to bring up a prisoner of war. Lord Mansfield said, the presence of witnesses who were prisoners of war, was generally obtained by an order from the secretary of state: and an application was made for a hab. corp. to bring up such a prisoner, but without success. Afterwards a rule was granted to shew cause why defendant should not consent either to admit the fact of the capture, or that the prisoner should be examined upon interrogatories. If this consent be refused, the court said, they would put off the trial from time to time, to give the defendant an opportunity of filing a bill in equity. The plaintiff agreed to produce all letters received concerning the matters in liti gation. Furly v. Newnham, Doug. Rep. 420. 6 Term Rep. 497.

(a) See stat. 44 Geo. 3. c. 102. which gives discretional power to a judge to award a hab. corp. ad testificandum, to bring any prisoner detained in any gaol, in England or Ireland, before any of the courts, or any sitting of misi prius, to be there examined, &c.