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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 (b).

In civil proceedings, as we have seen, a witness is not obliged to attend, unless his expenses 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 behalf of the public, a fair compensation should be given them for their trouble and necessary expense. 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, *the court may on the oath of such 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 expense." 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 subpœna should be allowed his reasonable expenses, and also, in case of poverty, a satisfaction for his trouble and loss of time. The stat. 18 G. 3. c. 19. s. 8. therefore enacts that "where any person shall

(b) In the state of New-York, the courts of common pleas and of general sessions of the peace may issue subpoenas into any part of the state, under the like penalties as if the witness were within the jurisdiction of the court. Sess. 36. c. 65. s. 10. 2 R. L. 147.

appear on recognizance or subpoena 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 bona fide 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 expenses which it shall appear to the court the said person was bona fide 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 (a).”

in custody.

In some cases a subpœna can have no effect, as where Witness on the witness is in custody, or on board of a ship under the ship-board or command of an officer, who refuses to allow his attendance. 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 he is willing to attend (2), (b). Upon this application the court in its dis(1) Layer's case, Fortesc. 396. (1) Roddam's case, Cowp. 672.

(a) So, in the state of New-York, poor witnesses appearing on recognizance to give evidence against another accused of any larceny or other felony, may, by order of the court to the treasurer of the city or county in which the offence was committed, be compensated for their time, trouble, and expense; and witnesses attending at the request of the public prosecutor, from a foreign state, to give evidence in any criminal prosecution, are allowed such sum of money, as to the court shall appear reasonable, for their time, trouble, and expense. Sess. 36. c. 8. s. 16. 1 R. L. 498. The act has been construed to extend to poor persons appearing on subpœna. The People v. Dowelle Coleman, 41. But it only applies to such as are poor, and not to those who are able to bear their own expenses. Ex parte Manning, 1 Caines' Rep. 59.

(b) Whether the witness should not have been previously served with a subpoena ? Quære, R. v. Roddam, Cowp. 672.

Witness abroad.

cretion *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 (a). 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 se cretary 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 jail in England, before a court martial, or before commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting by vir tue 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 (b), 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 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 a nonsuit (1).

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 expense 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 expenses (a).

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 justice 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 (b) for a commission (5).

(1) Furly v. Newnham, 2 Doug. 419. Mostyn v. Fabrigas, Cowp. 174. Calliard v. Vaughan, 1 Bos. & Pull. 211.

(2) Stephens v. Crichton, 2 East, 259. Taylor v. Roy. Ex. Ass. Comp., 8 East, 393.

(3) Saunders v. Pitman, 1 Bos. & Pull. 33.

(4) Robinson v. Smyth, 1 Bos. & Pull. 454.

(5) Calliard v. Vaughan, 1 Bos. & Pull. 212.

(6) In the state of New-York, the expenses of executing a commission are not taxable, but the party will be allowed the costs of suing it out. Kenny v. Van Horne, 2 Johns. Rep. 107.

(b) The absence of a witness whom the party might have examined de bene esse, is no cause for putting off the trial. M'Kay v. Marine Ins. Co. 2 Caines' Rep. 384. As to the practice relative to putting off trials on account of the absence of a material witness, vide Rex v. Le Chevalier D'Eon, 3 Burr. 1513. S. C. 1 W. Black. 510. 1 Sellon's Practice, 418, 419, 420. Schlosser v. Lesher, 1 Dall. 251. Bowen v. Douglas, 2 Dall. 44.

Pennington v. Scott,·

Subpœna duces tecum.

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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. s. 40. and s. 44.

If a witness has in his possession any deeds or writings, which are thought necessary at the trial, a special clause must be inserted in the subpoena, 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 (a). It is not necessary to give notice to the defendant himself: giving it to his attorney will be sufficient, even in penal actions (1.)

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 (b).

(1) Attorney-General v. Le Merchant, 2 T. R. 203. n. Cates q. t. v. Winter, 3 T. R. 306.

(2) Amey v. Long, 9 East, 485.

ibid. 94. White v. Lynch, ibid. 183. Symes's Lessee v. Irvine, ibid. 383. Davidson v. Brown, 4 Binney, 243. Commonwealth v. Millard, 1 Mass. Rep. 6. Smith v. Barker, 3 Day, 280. AnoThe United States v. Frink, 4 Day, 471. nymous, ibid. 308.

(a) Post, 336-343.

(b) In a nisi prius case, Lord Kenyon ruled, that the court could not compel a witness, who had been served with a subpoena duces. tecum, to produce a private paper. Miles v. Dawson, 1 Esp. 405.