Justices. Courts martial. of inclosure. sioners shall have his necessary expenses tendered to him, in the same manuer as is required on service of subpoena to witnesses in actions at law. (1) Magistrates have not, in general any authority to compel the attendance of witnesses for the purpose of a summary trial, except under the special provision of acts of parliament. When a statute requires justices of peace to take the examination of persons bringing a prisoner before them on suspicion of felony, it incidentally gives them a power to examine upon oath, and to summon by their warrant any other persons who appear to be material witnesses for the prosecution, to come before them and give evidence. And it may be laid down as a general rule, that wherever magistrates are authorized by act of parliament to hear and determine, or to examine witnesses, they have incidentally a power to take the examination on oath. (2)(a) Witnesses, who neglect to attend on courts martial, after being duly summoned, are liable to be attached in the court of King's Bench, &c. as if they had neglected to attend a trial in some crimCommissioners inal proceeding in that court. (3) And commissioners of inclosure, under the general inclosure act, stat. 41 G. 3, c. 109, s. 33, 34, have a power to summon in writing any person within a certain distanee, to appear before them and to be examined; and if the person summoned refuse to appear, he will be subject to a penalty. Witness abroad. When a material witness resides abroad, or is going abroad, and cannot attend at the trial, the party requiring his testimony may move the court in term time, or may apply to a judge in vacation, for a rule or order to have him examined on interrogatories de bene esse before one of the judges of the court, if the witness reside in town, or, if he reside in the country or abroad, before comOrder for ex- missioners specially appointed and approved by both parties. (4)(b) The rule or order for such examination cannot be obtained amination. (1) 6 4. c. 16. s. 35. (2) Dalt. Just. c. 6. Lamb. 517. 12 Rep. 131. And see stat. 15 G. 3. c. 39, which gives such power, for the purpose of levying penalties or making (3) Stat. 55 G. 3. c. 108. s. 28. without the consent of both parties, as the depositions are only secondary evidence. Without this consent, therefore, the court will not give the plaintiff leave to examine upon interrogatories an attesting witness to a deed, or to give the examination in evidence at the trial, on the ground that the witness is incapacitated by illness from attending, and unlikely ever to be able to attend, though it appear by affidavit that the defendant had at one time admitted the execution of the deed; nor will the court, on this ground, grant a rule for dispensing with the attendance of the witness. (1) And though the court will not compel the other party to consent, yet, if necessary, it will assist the party applying by putting off the trial (that there may be an opportunity of filing a bill in equity,) until the consent is obtained, or the witness returns; and if, after all, the defendant should refuse, the court will not give him judgment as in case of nonsuit. (2) When a party, after obtaining leave by consent examines wit- Costs of exnesses abroad on depositions, he will not be entitled to any allowance, in the taxation of costs, for the expense of taking the depositions, although he may succeed in the action. (3) The same rule prevails in the court of chancery; if a party applies to that court for a commission to examine witnesses, he must pay the expenses. amination. India. Where a cause of action has arisen in India, or any offence has Witnesses in been committed there, which is tried in this country, the evidence of witnesses resident in India may be obtained in the manner prescribed by stat. 13 G. 3, c. 63, s. 40, 44. (4) The evidence of witnesses in India may also be obtained, in support of a bill for a divorce in parliament, by the provisions of stat. 1 G. 4, c. 101; and in the case of a prosecution for an offence committed abroad by any person employed in the public service, the evidence of witnesses resident abroad may be obtained in the mode pointed out by stat. 42 G. 3, c. 85. (5) The stat. 54 G. 3, c. 15, which was passed for the purpose of facilitating the recovery of debts (1) Jones v. Brewer, 4 Taunt. 47. (2) Furly v. Newnham, 2 Doug. 419. Mostyn v. Fabrigas, Cowp. 174. Calliard v. Vaughan, 1 Bos. & Pull. 211. As to to the admissibility of depositions on interrogatories, see infra, part 2, c. 4, s. 2. (3) Stephens v. Crichton, 2 East, 259. Taylor v. Roy. Ex. Ass. Comp. 8 East, 393. (4) Grillard v. Hogue, 1 Brod. & Bing. 519. (5) R. v. Jones, 8 East, 31. Material wit ness absent. off trial. in the courts of law in New South Wales, prescribes the mode of obtaining the affidavits of witnesses, resident in this country, and makes them equivalent to viva voce proof in open court, or to examinations under commissions. If the defendant is unable to proceed to trial, on account of the absence of a material witness, he may move the court in term-time, or apply to the judge in vacation, on an affidavit of the facts to put off the trial till the next term; or in the Common Motion to put Pleas, if necessary, to a more distant period. (1) An application to put off a trial beyond the existing sittings, or from sittings to sittings, is not allowed on the part of the plaintiff; for he has the power at any time of withdrawing the record; if he is not prepared to try the cause. But where, from the sudden indisposition of a witness, who may be able to attend in the course of a day or two, or for any other temporary reason, the plaintiff is prevented from trying his cause in its order in the paper, yet has ground to believe that he sittings are over, it would be too case, withdraw his record; and a fore make an order for the trial to stand over, till the witness is By plaintiff likely to attend. (2) It is a rule in the court of Common Pleas, shall be able to try before the much to make him, in such a judge at nisi prius will there that the trial of a cause can never be put off on the consent of the parties and counsel, at the sittings at nisi prius, but the plaintiff must either proceed to try or withdraw his record. (3) Before the court will consent to put off the trial on account of the absence of a material witness, it requires to be satisfied that injustice would be done by refusing the application, and that the party, who makes the application, has not conducted himself unfairly, nor been the cause of any improper delay. (4) By defendant. The rule will not be granted to the defendant, after he has pleaded a sham plea, by which a trial has been lost, (unless he consent to pay the money into court;) (5) nor, where the testimony of the absent witness is intended to set up an odious defence, (as, that the plaintiff is slave to the defendant, and therefore (1) Pr. Reg. 398. Tidd Pr. 831. See form of affidavit in Tidd. App. 812. (2) Ansley v. Birch, 3 Campb. N. P. (3) 2 Taunt. 221. (4) Saunders v. Pitman, 1 Bos. & Pull. 33. (5) Tida. Pr. 831. cannot recover in the action, or that he is an alien enemy, &c. (1); nor will it grant the rule for the purpose of giving the defendant an opportunity, which he has once lost by his own neglect, of applying to a court of equity for a commission. (2) When a motion is about to be made to a judge at nisi prius, Affidavit. for putting off the trial of a cause on account of the absence of a witness, notice should first be given to the plaintiff's attorney, with a copy of the intended affidavit. This affidavit ought regu larly to be made by the defendant himself; but if he is abroad. or out of the way, it may be made by his attorney or a third person. (3) The affidavit generally states, that the person absent is a material witness, without whose testimony the defendant cannot safely proceed to trial; that he has endeavored without effect to get him subpoenaed; but that he is in hopes of procuring his future attendance. (4)(a) CHAP. II. Of the Incompetency of Witnesses from Want of Under standing. to witness. WHEN a witness appears, he must be regularly sworn, un- Exceptions less an objection is made to his competency; (b) and the course of proceeding is, that the party, who objects to the witness, should state all his objections at the same time, in order to prevent unnecessary delay. (5) An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for example, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness; a father is a competent witness for or against his son, and a master for his servant, or a servant for his master. Such exceptions may affect the credibility, but they do not affect the competency of witnesses. Causes of in As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is for the court alone. to determine, whether a witness is competent, or the evidence admissible. Whether there is any evidence, is a question for the judge: whether it is sufficient, is a question for the jury. (1)(d) And whatever antecedent facts are necessary to be ascertained, for the purpose of deciding the question of competency or admissibility of evidence, as, for example, whether a child understands the nature of an oath-or whether the confession of a prisoner was voluntary-or whether declarations, offered in evidence as dying declarations, were made under the immediate apprehension. of death-these, and other facts of the same kind, are to be determined by the court, and not by the jury. By the law of England the objections to the competency of competency witnesses are fourfold. The first ground of incompetency is want of reason or understanding: a second ground is defect of religious principle: a third ground arises from conviction of certain crimes, or from infamy of character: the fourth and most general cause of incompetency is interest. Either of these grounds of incompetency will exclude the witness from giving any kind of evidence. "I find no rule less comprehensive than this," said Mr. Justice Lawrence, in the case of Jordaine v. Lashbrooke (2), "that all persons are admissible witnesses, who have the use of their reason, and such religious belief as to feel the obligation of an oath, who have not been convicted of any infamous crime, and who are not influenced by interest." (e) Idiots, &c. An inquiry into these several causes of incompetency forms the subject of the four following chapters. First, as to incompetency far want of understanding. Persons, who have not the use of reason, labor under a physical disqualification, and from their infirinity are utterly incapable of giving evidence. Insane persons, idiots, and lunatics under the influence of their malady, are in this situation. (3)(ƒ) (1) By Buller J. Comp. of Carpenters, &c. v. Haywood, Doug. 775. Bull. N. P. 293. (2) 7 T. R. 610. (3) Co. Lit. 6. b. 6 Com. Dig. tit. Testmoigne, A. 1. |