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pel witnesses to appear against them. And now, as the stat. i Ann. st. t. c. 9. s. 3. enacts, that all witnesses on behalf of a prisoner, on a trial for treason or felony, shall be sworn in the same manner as witnesses for the crown, and be liable ro all the penalties of perjury, process may be taken out against them in any case whatever. (1)
In order to provide for the appearance of witnesses, to answer in cases where warrants are not usually issued, and to give evidence in criminal prosecutions in any part of the United Kingdom, it is enacted by a late act of parliament, stat. 45 G. 3. c. 92. s. 3., that the service of a writ of subpoena or other process in any part of the United Kingdom shall be as effectual to compel his appearance in any other part, as if the same had been served in that part where the person is required to appear. And if the person served does not appear, the court, out of which the process issued, may transmit a certificate of the default in the manner specified by the act, and the court to which the certificate is transmitted may punish the person for his default, as if he had refused to appear to process issuing out of that court.
Compensa- In civil proceedings, as we have seen, a witness is not obliged to attend, unless his expences are duly tendered; but, in criminal prosecutions, the demands of public justice supersede every consideration of private inconvenience, and witnesses are unconditionally bound to appear. On the other hand, it is reasonable and highly expedient, that, when they attend on behaif of the public, a fair compensation should be given them for their trouble and necessary expencc. Formerly, however, the law provided no means for reimbursing them; a defect in our judicial administration, which was at length remedied by stat. 27 G. 2. c. 3. s. 3. This statute enacts that "when any poor person shall appear on recognizance to give evidence against another accused of grand or petit larceny or other felony,
(1) 1Hawk. P.C.c.46.1.17.
the the court may on the oath of sach person, and on consideration of his circumstances, in open court order the treasurer of the county or place, in which the offence shall have been committed, to pay such sum of money, as to the court shall seem reasonable, for his time, trouble, and expence." As this statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpoena to give evidence, it was afterwards deemed reasonable by the legislature, that every person so appearing on recognizance or subpoena should be allowed his reasonable expences, and also, in case of poverty, a satisfaction for his trouble and loss of time. The stat. i8 G. 3. c. 19. s. 8. therefore enacts that "where any person shall appear on recognizance or subpcena to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the grand jury, it shall be in the power of the court (provided the person shall, in the opinion of the court, have bond Jtde attended in obedience to such recognizance or subpoena,) to order the treasurer of the county or division, in which the offence shall have been committed, to pay him such sum as to the court shall seem reasonable, not exceeding the expences which it shall appear to the court the said person was bondJide put unto, by reason of the said recognizance and subpoena, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time."
In some cases a subpoena can have no effect, as where witness on the witness is in custody, or on board a ship under the tnip-D0»rd command of an officer, who refuses to allow his attendance, tody. The course then is to sue out a writ of habeas corpus ad testificandum; for which purpose application ought to be made to the court or judge, upon affidavit of the party applying, stating that he is a material witness (1); and, in case of his being on board a ship, that lie is willing to attend (2). Upon this application the court in its discre
(l; Layer's case, Fortcsc, 396. (1) Rcddam's case, Cowp. 67s.
tion will make a rule, or the judge will grant his fiat for a writ(1), which is then sued out, signed, and sealed (2). The writ should be left with the sheriff or other officer, who will then be bound to bring up the body, on being paid his reasonable charges. If the witness be a prisoner of war, he may be examined by consent on interrogatories, but cannot be brought up without an order from the secretary of state. (3)
It has been doubted whether persons in custody could be brought up as witnesses by writ of habeas corpus to give evidence before any other courts except those at Westminster: but now by stat. 43 G. 3. c.140. it is enacted, that a judge of either of the courts may, at his discretion, award such writ for bringing a prisoner, detained in any goal in England, before a court martial, or before commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting by virtue of any royal commission or warrant.
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 commissioners specially appointed and approved by the opposite party (4). The rule or order for such examination, which is only secondary evidence, cannot be obtained without the consent of both parties. And, though the court cannot 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 riling a bill in equity,) until the consent is obtained, or the witness returns: and if, after all, the
(1) Burbage's case, 3 Burr. 1440. (3) Furly v.Newnham, a Doug. 419.
(i ) Tidd. Pr. 739. (4) 1 Tidd. Pr. tix
defendant defendant should refuse, the court will not give him judgment as in case of a nonsuit. (i)
When a party, after obtaining leave by consent, examines witnesses abroad on depositions, he will not be entitled to any allowance in the taxation of costs for the expence of taking the depositions, although he may proceed in the action (2). 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' expences.
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 (3). The rule will not be granted where the testimony of the witness is intended to set up an odious defence, (as, that the plaintiff is slave to the defendant, and therefore could not recover in the action, or that he is an alien enemy (4), &c.): 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. (5)
Where a cause of action has arisen in India, or any offence has 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. 3.40. and s. 44.
If a witness has in his possession any deeds or writings, Subpsna
... . , , . 1 .ii ducesteci
which are thought necessary at the trial, a special clause
(1) Furly v. Newnham.1D0ug.419. (3) Saunders v. Pitman, 1 Bos. fc
Mostyn v. Fabrigas, Cowp. 174. Cal- Pull. 3.).
liard v. Vaughan, 1 Bos. * Pull a11. (4J Robinson v. Smyth, 1 Bos. &
(1) Stephens v. Crichton, i East, 159. Pull. 454.
Taylor v. Roy. Ei, Ass. Comp, 8 East, (5) Calliard v. Vaughan, 1 Bos. Sc
must.be inserted in the subpotnn, called a duces tecum, commanding him to bring them with him. When the writings are in possession of the adverse party or his attorney, notice should be given to produce them, and if after proof of a reasonable notice they are refused, secondary evidence of the contents will be admitted. It is not necessary to give notice to the defendant himself: giving it to his attorney will be sufficient, even in penal arSUons. (i)
This writ of subpoena duces tecum, as well as the other writ of subpoena ad testificandum, is compulsory upon the witness. And though it will be a question for the consideration of the judge at the trial, whether in any particular case the actual production of writings should be enforced, yet the witness ought always to have them ready to be produced, if required, in obedience to the judicial mandate (2). From the earliest times, our courts of common law, in order to give effect to their proceedings, have resorted to these compulsory measures for the production of evidence, measures obviously essential to the existence and constitution of courts of justice.
(1) Attorney-General v. Le Mer- (i) Amey r. Long, 9 East, 485. chant, lT.R. 103.0. Cates q. t. v. Winter, 3 T. R. 306.