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No witness is bound to appear in civil cases, unless his reasonable expences, for going to and returning from the trial, be tendered him at the time of serving the subpoena; nor, if he appears, is he bound to give evidence, till such charges are actually paid or tendered (i), except he reside within the bills of mortality, and be summoned to give evidence within them (2). The necessity of this previous tender arises from the special provision in the act of Elizabeth before cited.
If a necessary witness is brought over from a foreign country after the commencement of an action, and gives evidence at the trial, the reasonable expences of his passage over, and of his subsistence here pending the action, will be allowed on the taxation of costs. This point was determined by the Court of Common Pleas in the case of Cotton v.Witt (3); in which case, it may be proper to observe, an application had been made to the opposite party for his consent to the examination of the witness on interrogatories, which had been refused. In the taxation of costs in that case, the expences of the witness's return to his own country after the trial were not allowed. According to the report, little notice appears to have been taken of that point; and no reason seems to have been stated for making the distinction. The allowance of expences in the case of foreign witnesses is from analogy to the common case of witnesses resident in this country; and there, on the taxation of costs, the expences are allowed for the witness's return to his place of residence, as well as for his journey to the place of trial. And it should seem, from the reported opinion of the present Chief Justice of the Court of Common Pleas in the later case of Sturdy v. Andrews (4), that, when a witness is brought over from a foreign country after the commencement of an action, the expences both of his
(1) Chapman v. Poynton, 2 Stra. (2} 3 Blac. Com. 369. Tidd. Puc.
1150. 13 East, 16. n. a. S. C. more 8*5.
fully stated. Bowlei v. Johnfon, 1 Blae. (3) 4 Taunt. 55.
Rep. 36. Fuller v.Prentice, I H.Blac. (4) 4 Taunt. 6^9. 49
B a coming coming to this country and of his return ought to be allowed in the taxation of costs. But such costs will not be allowed, if the witness has been brought over from abroad jwcvious to the commencement of the action (i), or if the witness, being in the country, was detained here for the purposes of thetrial(2); in those cases, the court will only allow the expences for the witness's subsistence here during the action.
As only four witnesses can be included in one writ of subpoena (3), several writs are frequently necessary. In order to save expence, it is settled, that leaving a ticket, containing the substance of the writ, will be as effectual as the writ itself; but the writ ought to be shewn (4). The writ or ticket should be served personally on the witness (5), and in reasonable time before the day of trial, that he may suffer the less inconvenience from his attendance on the court (6). Notice to a witness in London, at two in the afternoon, requiring him to attend the sittings at Westminster in the course of the same evening, has been held to be too short (7). If the witness, whose attendance is required, be a married woman, it will be necessary to serve the subpoena upon her personally, and the tender of the expences should be made to her and not to her husband (8). If a cause appointed for one sitting be made a remanef, the subpoena must be re-sealed and re-served. (9)
If a witness, who has been duly served withthe writ, and has had a tender of the reasonable expences, omits to attend at the trial without a sufficient cause, he is liable to be proceeded against in one of three ways: 1. By attachment,
(1) Schimmel v.Lousada, 4 Taunt. (5) Smalt v. Whitmill, a Stra. ior.5.
69.?. Wakefield's case. Rep. temp. Hard. 313.
(a) Sturdy v. Andrews, 4 Taunt. S. P.
697. (6) Hammond v. Stewart, 1 Stra.509.
(3) Cowp. 846. (7) a Tidd. Pr. 807., nth edit.
(4) Goodwin v. West,C.'ro. Car.5a1. (8) Cro. EL iaa. 1 Jon.430.S. P. J40. Maddison v. Shore, 5 Mod. 35c. (9) Sydenhamv.Rand,140.3. K.B. •,,• P. cited from MS. in a Tidd. Pr. 806.
for a contempt of the process of the court (i); 2. By a special action on the case for damages, at common law (2) 3. By an action on the stat. 5 Eliz. c. 9. s. 12. for the penalty of 1 ol., and also for the further recompence recoverable under that statute. This action for a further recompence will not lie, unless the amonnt has been previously assessed by the court out of which the process issued: neither the jury nor the judge at nisi prius being competent to make the assessment (3). When the assessment has been made, an action of debt will lie. But the more usual way is to proceed by attachment. And in order to ground this summary way of proceeding, it is not only necessary to shew an ill motive in the witness, or negligence and inattention to the process of the court, but also to prove that the witness was personally served (4), and that his reasonable expences were paid or tendered at the time of the service of the subpoena. (5)
It has been laid down, that it is not the practice of the Court of Common Pleas to grant an attachment against a witness for non-attendance, but that they leave the party injured to his remedy at law (6). However several cases (7), in which the court has refused an attachment under special circumstances, seem to shew that the general rule is the same in the Common Pleas as in the Court of King's Bench.
The witnesses, as well as the parties in a suit, are protected by courts of justice, and privileged from arrest, eundo morando et redeundo (8). And in ordinary cases it is not necessary for the protection of a witness, that he should have been served with a subpoena, if upon application to him he
(1) 1 Stra. 510. 1 Sua. 810. 1054. Fletcher, cited 13 East. 16. Huffe v.
Ii5o. Covrp.846. Doug. 561. rowke, Barnes, 33.
(a) Pearsonv.Iles.Doug. 561. (7) Brodie v. Tichel, Barn. 35.
(3) lb. See, ante, p. 2. Stretch v. Wheeler, do. 497. Fuller v.
(4) 2 Stra. 1054. Prentice, 1 H. Bl. 49. Blandford V. (5) Ante, p. 2. Detastet.5Taunt.a6o.
(6) Per Wright, J. in Ryder v. (8) Lightfoot v. Cameron, 2 Blac.
conconsented to attend without one (i). A reasonable time is allowed to the witness for going and returning; and, in making the allowance, the courts are disposed to be liberal (2). This privilege has been extended to a party in the suit attending an arbitrator under an order of nisi prius(3). And so a bankrupt, attending a meeting of commissioners in pursuance of a notice, is during his attendance protected from arrest at the suit of a creditor (4), the commissioners being assembled under the authority of an act of parliament, and sitting as a court for the administration of justice.
Commissioners of bankrupt, by stat. 1 J.I. c. 15. s.10. are empowered to issue their warrant and apprehend persons, who, after a sufficient warning given to them, refuse to come and appear before them to be examined, not having any lawful impediment for such refusal. And by section 11. of the same act, witnesses sent for by the commissioners shall have such costs and charges, as the commissioners shall think fit. It has been determined, that it is not necessary, under this section, to tender a witness, at the time of summoning him, the expences of his journey; although, if he be in fact without the means of taking the journey, it may be an excuse for not obeying the summons (5). The necessity of a previous tender of expences, in the case of a witness who is subpoenaed to attend at a trial, arises from the special provision of the stat. 5 Eliz. c. 9. s. 12.
By the stat. 5 G. 2. c.30. s. 6. it is enacted, that, in case a bankrupt is in execution or cannot be brought before the commissioners, the acting commissioners shall attend the bankrupt and take his discovery: but as this attendance on
(1) Ld. Kenyon C. J. in Arding v. (4) Arding v. Flower, 8 T. R 534.
Flower, 8 T.R. 536. 1 Blac.Rep. 1142. Kinder v. Williams,
(l) a Blac. Rep. 1113. Hitch v. 4 T. R. 377. Spence v. Stuart, 3 East,
Bl'uset, Gill). Cas. 308, cited % Stra. 89. Es parte Byne, 1 Ves. Sc Beam.
986. 13 East, 16. n. (a). 3/6.
(3) Spence v. Stuart, 3 East, 89. (5) Battye T. Grcsley, 8 East, 319.
the bankrupt in prison has been found to be extremely inconvenient, it is now provided by stat. 49 G. 3. c.121. s. 13. that bankrupts charged in execution are to be brought before the commissioners to be examined by them, iii the same manner as bankrupts in custody on mesne process: and the warrant of the commissioners is an indemnity to the keeper of the prison.
The general inclosure act, stat. 41 G. 3. c. 109. s. 33,34. gives commissioners a power to summon in writing any person within a certain distance to appear before them and to be examined, and subjects them to a penalty, in case they refuse to appear.
The means of compelling the attendance of witnesses, in Attendance criminal cases, are of two kinds (i): first, By process of p"s^m""1 subpoena; or, secondly, the justice or coroner, who takes the information of the witnesses, may, at the time of taking it, or at any time before the trial, bind them over to appear, and, if they refuse to come or to be bound over, may commit them for a contempt: and this is the ordinary and more effectual method.
In prosecutions for misdemeanors the defendant has been from the earliest times allowed the writ of subpoena: but prisoners had no right, by the common law, to this process in capital cases (2), without the special order of the court. Formerly a prisoner was put upon his trial under a twofold disadvantage; he was unable to compel the attendance of witnesses, and, if they voluntarily attended, their evidence, not being given on oath, met with less credit than the evidence on the part of the prosecution. But by stat. 7 W. 3. c. 3. s. 7., all persons indicted for any high treason, whereby corruption of blood may ensue, shall have the like process of the court, where they shall be tried, to compel their witnesses to appear for them, as is usually granted to com
(1) 1 Hale P C. 181. (1) aHiwk. P.C. 46.1.17.
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