6 The wit § 287. Duration of the privilege from arrest. ness is privileged not only on his journey to and from court, but during his detention in the place where the court is sitting, if the sole reason of his stay is his purpose to testify. The rule allows a reasonable time for the journey but does not countenance loitering, though a slight deviation to partake of food, to see one's friends or to obtain papers which are to be used as evidence at the trial," will not nullify the privilege from arrest. If the witness, after testifying, before returning home proceeds to transact business which is wholly unconnected with his functions as a witness, his privilege ceases. A witness in attendance is privileged while at his lodgings or during a temporary adjournment of the court, though his inability to start for his home after the trial is over because of his lack of means will not extend his privilege. An officer, unless he is informed thereof, is not bound to know that a person whom he arrests is privileged as a witness;1o and it seems that no action for false imprisonment can be maintained against an officer making or a person procuring the arrest under such circumstances." An arrest made after the termination of the privilege is not illegal because it is based on process which had issued and on which the witness had been once illegally arrested while the privilege existed.12 1 Perse v. Perse, 5 H. L. Cas. 671; Gibbs v. Phillipson, 1 Russ. & My. 19; Ex parte Hurst, 1 Wash. C. C. 186. 429; Gibbs v. Phillipson, 1 R. & My. 19. 8 Ex parte Temple, 2 Ves. & B. 391; Spencer v. Newton, 6 Ad. & E. 2 Chaffee v. Jones, 19 Pick. (Mass.) 623; Hatch v. Blisset, 2 Stra. 986. 260. 9 3 Mahon v. Mahon, 2 Irish Eq. 623. 440. 4 Pitt v. Coomes, 5 B. & Ad. 1078; Attorney-General v. Skinner's Co., 8 Sim. 377; Ex parte Clark, 2 Dea. & Ch. 99. Ricketts v. Gurney, 7 Price, 699. 6 Shults v. Andrews, 54 How. Pr. (N. Y.) 380; Heron v. Stokes, 6 Ir. Eq. 125; Pitt v. Coomes, supra; Selby v. Hills, 8 Bing. 166; Jones v. Rose, 11 Jur. 379. Spencer v. Newton, 6 Ad. & E. 10 Cooley on Torts, p. 192; Secor v. Bell, 18 Johns. (N. Y.) 52; Sperry v. Willard, 1 Wend. (N. Y.) 32; Wood v. Kinsman, 5 Vt. 588; Brown v. Getchell, 11 Mass. 11. 11 Smith v. Jones, 76 Me. 138; Sperry v. Willard, supra; Vandevelde v. Snellen, 1 Keb. 220; Chase v. Fish, 16 Me. 132. 12 Humphrey v. Cumming, 5 Wend. (N. Y.) 90; Petrie v. Fitzgerald, 1 7Childerston v. Barrett, 11 East, Daly (N. Y.), 401. 8 § 288. Attendance of witnesses in custody.- The attendance of a witness who is incarcerated in prison or who is in the military or naval service may be procured by the service of a writ of habeas corpus ad testificandum on the prison keeper or officer in whose immediate charge he is.1 The application for the writ should specify the nature of the suit in which his attendance is needed, that the evidence of the witness is material, and that the witness is restrained from attending court, together with the circumstances of the restraint so far as they are known to the affiant. As the general rules governing the granting and the service and return of this writ are those which obtain in connection with the ordinary writ of habeas corpus, no elaboration of them is necessary in this connection.3 § 289. Attendance of witnesses before legislative bodies. As a rule the power to summion witnesses and to take testimony is considered to be inherent in legislative bodies for all purposes within the scope of the constitutional powers possessed by those bodies, and the refusal or neglect of a witness to appear or to answer proper questions is a contempt for which he may be arrested and imprisoned. The power of the federal congress to commit for contempt should be strictly confined within the constitutional functions of that body. Neither house is a court of justice, as was the English parliament originally, but either house may exert certain powers under the constitution; as, for example, it may decide contested elections and the qualifications of its members or may impeach certain public officials. If then congress exceeds these powers and summons a witness to testify to a matter which is exclusively for judicial investigation, it has no power to commit for contempt of its process if the witness refuse to answer questions." 1 Ex parte Marmaduke, 91 Mo. 228, 251. 21 Greenl. on Ev., § 312. See Church on Habeas Corpus. 41 Kent, 236, 237; 2 Story, Const., $ 305-317; In re Gunn, 50 Kan. 125; Burnham v. Morrissey, 14 Gray, 226; Anderson v. Dunn, 6 Wheat. 204; Yards' Case, 10 Pa. Co. Ct. Rep. 41. Kilbourn v. Thompson, 103 U. S. 168, 181-205. See, also, In re Pac. R. R. Com., 32 Fed. Rep. 251-253; Ex parte Dalton, 44 Ohio St. 150. As to the power of a city council to commit a witness for contempt, see Whitcomb's Case, 120 Mass. 123. CHAPTER XXII. COMPETENCY OF WITNESSES. § 300. Classes of persons incompe- | § 310. Persons interested statutory incompetency. 311. Incompetency of parties to negotiable instruments to impeach them. 312. Competency of counsel as wit nesses. 313. Competency of judges as wit nesses. 314. Competency of arbitrators as witnesses in an action on the award. 315. Definition and form of oath 316. Incompetency because of a 318. Deaf mutes as witnesses. 321. Statutory regulation of the 322. Statutes construed. 323. Accomplices. 324. Corroboration of accomplices. § 300. Classification of persons incompetent as witnesses. The common law, proceeding upon the theory that the prevention of perjury was of paramount importance to the possible ascertainment of truth, rejected absolutely certain classes of persons as witnesses. Thus, the parties to the suit and all other persons who had any pecuniary interest in the litigation; such persons as from a deficiency or peculiarity of re ligious belief were presumed to be regardless of the sanctity of an oath, and persons of imperfect mental powers, as lunatics, children and idiots, were incompetent as witnesses. It is clear that by rejecting the testimony of the parties and of persons interested in the event of the suit two most valuable sources of information were lost. Those who have a direct and actual pecuniary interest in a transaction, or who are connected by ties of relationship or interest with the parties to it, are most likely to be best informed, not only as to the main transaction, but as to its most trivial details. It was considered, however, that a grave danger existed that interested persons would perjure themselves if allowed to testify as witnesses, and to obviate the danger of such corrupting influences altogether they were absolutely excluded from the witness stand. That interested persons when summoned as witnesses would always commit perjury was not the basis of their rejection. But the very great probability and even certainty that some would or might do so were considered suffi cient to incapacitate them as a class from testifying. The arbitrary character of this common-law rule rendering the parties and persons interested incompetent as witnesses: was recognized even by those authorities and cases in which it was formulated. It was clearly seen that interest, like bias, is only valid as an objection to a witness when it is urged in connection with the credibility of his testimony, and it was admitted that it was absurd to permit a witness to testify, no matter how friendly or hostile he might be towards the party who called him, while, at the same time, excluding the testimony of other witnesses equally well and perhaps better informed because it happened that they had a slight pecuniary interest in the result of the suit. The early writers do not attempt to justify the rule on logical grounds, but, with the conservatism of the common law, they merely point out that the rule being firmly settled from early times ought, in order to obtain stability and certainty in the law, to be very strictly adhered to, and that to abrogate it would certainly open the door to a vast amount of perjury on the part of the majority of interested witnesses. In the quaint language of Baron Gilbert,' the rule was designed "to preserve infirmity from a 11 Gilb. Ev., §§ 220, 224. snare and integrity from suspicion." Modern statutory legislation, while fully recognizing the element of interest as it affects the credibility of testimony, has swept away this arbitrary exclusion of parties and interested persons as witnesses. While it is possible that perjury in court has been sensibly increased by these enactments, it is very clear, on the other hand, that the avenues and means for the ascertainment of truth in judicial proceedings have been wonderfully widened and augmented thereby. § 301. Parties incompetent as witnesses at common law. Though the common-law rule that a party to the record is not competent as a witness in his own behalf has been abolished in this country, it may be useful to consider some of the cases in which it was employed at common law, as the element of interest is still an objection to the competency of a witness in certain cases where he is called upon to testify against the representatives of a deceased person. Neither a real nor a nominal party to an action could at common law be compelled by his adversary to testify against himself,1 so that where a party desired to interrogate his opponent he had to resort to the expensive and cumbrous equitable proceeding of a bill of discovery. As the admissions of a party have always been admissible against him, he might, at common law, consent to testify voluntarily for his adversary, though it seems that where several persons were joined as coplaintiffs none of them could, where the interest of all was joint and not several merely, testify in behalf of the defendant, unless with the consent of those who were associated as plaintiffs with him.3 In respect to the competency of members of a private corporation as witnesses in suits to which the latter is a party, a distinction was made at common law between business or trading corporations and those incorporated solely for religious or charitable purposes. In the case of business corporations the vested pecuniary interest of the member or stockholder was considered sufficient to render him incompetent to 1 Rex v. Woburn, 10 East, 395. 2 See post, § 305. Scott v. Lloyd, 12 Pet. 149; 1 Greenl. on Ev., §§ 353, 354. So a mere nominal party could not consent to testify for his opponent without the consent of the real party. Frear v. Evertson, 20 Johns. 142. |