Exch. of Pleas, 1840. MAYER V. ISAAC. ROLFE, B.-I am of the same opinion. It is conceded by the defendant's counsel, that if the promise had been in consideration of the supply of " any china and earthenware," the plaintiff would be entitled to recover; but it is said the case is different, because the guarantee is not given in respect of any china and earthenware, but "any bills," i. e. as it is argued, any bills drawn for the first supply of china and earthenware. I cannot agree to that construction. What is guaranteed is, payment of any bills drawn on Vogel for the price of the goods supplied to him. Mason v. Pritchard decides, that where it is for any goods supplied, it is a continuing guarantee; and I cannot appreciate the distinction taken between that case and the present. On the contrary, I think the instrument is more clearly continuing when given in respect of any bills; and for this reason, that it cannot be said that it is limited to the first lot of goods actually supplied, but only to the first supplied which is paid for by bills. I think the parties could not contemplate so strange a course of dealing, and therefore that the only reasonable construction is, that the defendant was to be answerable for any goods to be supplied, provided only that his liability should not extend beyond the £200. ALDERSON, B.-My Brother Parke, before he left the Court, expressed to us his entire concurrence in the opinion we have delivered. Rule discharged. LAMONT V. CROOK. THIS was an action on the case against the defendant for a breach of duty, in not being in attendance to give evidence in obedience to a writ of subpoena ad testificandum. The declaration was in the usual form, except that it did not allege that the defendant was called on his subpoena. Plea, not guilty. At the trial before Lord Abinger, C. B., at the Sittings after Hilary Term, the plaintiff's counsel opened the following facts. A writ of subpoena ad testificandum in the usual form had been served on the defendant, requiring him to attend and give evidence for the plaintiff in a certain action, in which the now plaintiff was the plaintiff, and one R. Southall was the defendant. When the cause was about to be called, the plaintiff's attorney ascertained that the now defendant was not in attendance; and being advised by his counsel that it was unsafe to proceed to trial without his evidence, he withdrew the record. The defendant had not been called on his subpoena by the officer of the Court; but satisfactory proof would be given that he was not in attendance, and that his attendance could not have been procured in time.-Upon this statement, the Lord Chief Baron interposed, and said that the plaintiff must be nonsuited, inasmuch as, in his opinion, in order to entitle the plaintiff to recover in an action of this kind, it must be shewn that the witness was called on his subpoena. On this expression of his Lordship's opinion, the plaintiff's counsel did not offer any evidence, and the plaintiff was accordingly nonsuited. Exch. of Pleas, 1840. In an action against a party for not appear ing to give evi dence in obe dience to a writ of subpoena ad testificandum, it is not neces sary to shew that the defen dant was called on his subpoena by the officer of the Court, if it be shewn by other satisfac tory evidence that he was not present at the proper time and place when he was required to give evidence; or even that he was absent when the cause was called on for trial, under such circum stances that he could not have been forthcom ing when required to give evidence. And in such case it that the jury is not necessary should have been sworn and withdrew the cit trial in the ab Thesiger having obtained a rule nisi for a new trial, ing Barrow v. Humphreys (a), Rex v. Stretch (b), Mullett v. Hunt (c), and Davis v. Lovell (d), (a) 3 B. & Ald. 598. (c) 1 C. & M. 752; 3 Tyr. 875. sence of the witness. Exch. of Pleas, 1840. LAMONT v. CROOK. Crowder and Swann now shewed cause.-The plea of not guilty puts in issue all the facts alleged in the declaration, which are necessary to shew that there was a breach of duty in the defendant. If then it be necessary, before he could be guilty of any breach of duty, that he should have been called upon his subpoena, that fact is in issue on these pleadings. If he was not so called, and it is necessary that he should be, he did not neglect or refuse to attend, in the terms of the declaration. [Parke, B.-If your argument be good, the question is, whether there may not be an objection to the declaration, for not averring that the defendant was called. Alderson, B.-The first question is, whether, on this record, it is necessary to prove the calling of the defendant; the second, whether it be in all cases. necessary to call the witness, even if he be not there.] Malcolm v. Ray (a) appears to be a decision directly in favour of the defendant, although it must be admitted that its authority is shaken by subsequent cases. It was there held, that an affidavit in support of an application for an attachment against a witness for disobedi ence to a subpoena, was defective for not stating that he was duly called at the trial. The precedents, also, all allege that the defendant was called (b). Hunt, the present question did not arise. In Mullett v. There the de fendant was in fact called on his subpoena, and it was so averred in the declaration: and the necessity of calling him seems to have been assumed by the Court. Bayley, B., says, "If the Judge suffers the witness to be called on his subpoena, without the jury being sworn, and the witness does not appear, I think the plaintiff has a right to withdraw his record." In Dixon v. Lee (c), Alderson, B., certainly intimated an opinion, that when the witness is not in fact in attendance, it cannot be necessary, because (a) 3 B. Moore, 222. (b) See 2 Chit. Pl. 531; 9 East, 473; 8 Bing. 224; 1 C. & M. 752. (c) 1 C., M., & R. 645. 1840. LAMONT v. CROOK. it would be useless, to call him on his subpoena; but there Exch. of Pleas, also, the decision proceeded on another ground. In Barrow v. Humphreys (a), the Court only expressed an inclination of opinion, (as was afterwards decided in Mullett v. Hunt), that the witness was in contempt by neglecting to attend, although the cause was not called on for trial, he having been called on his subpœna. In Rex v. Stretch (b), the Court expressly declined to decide the question now in discussion. [Lord Abinger, C. B.-The subpoena binds the witness to be there from day to day, until the cause is tried.] But he cannot appear in the box as a witness, until called for that purpose; until he be so called, therefore, it can hardly be said that he has disobeyed the injunction of the writ, "to appear to testify the truth." Thesiger and Busby, contrà.-The circumstances opened in this case sufficiently shewed a breach of duty in the defendant. There may well be a distinction between the case where the witness is in fact in attendance upon the Court, and where, as in the present case, he was altogether absent, and no object could have been answered by calling him on his subpoena. It is a matter, not of the essence of the case, but of evidence, whether the calling of him was necessary or not: and that is the distinction taken by Alderson, B., in Dixon v. Lee, and also by Patteson, J., in Rex v. Stretch. There is no rule of law which compels a plaintiff, who obtains a subpoena ad testificandum, to do more than duly to serve the party with the writ; it is a common-law writ, and the party is bound to obey it at his peril: Amey v. Long (c), Mullett v. Hunt. The requisition of the writ is, that "all other things being set aside, and ceasing every excuse," he shall appear in Court on a day named therein, "and from day to day until the cause is tried." The requisition is absolute, not conditional. The proposition 1840. LAMONT v. Своок. Exch. of Pleas, contended for on the other side is in effect this, that the witness may absent himself until the instant when he is formally called on by the officer of the Court: but that is wholly at variance with the large and general requisition of the writ. The legal effect and obligation of the writ of subpoena was much considered in Collins v. Godefroy (a). Lord Tenterden says "If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think that such a duty is imposed by law." The writ itself does not require the witness to be called. The question is not whether that be a convenient practice or not: the onus lies on the defendant to shew that it is the law. There is no obligation on the plaintiff dehors the writ, and the writ imposes no such duty. Lord ABINGER, C. B.-We think this rule must be made absolute for a new trial; although we do not intend therefore to be understood as laying down any rule that a party may sustain an action against every person summoned by him as a witness, who is not present at each particular moment of the assizes or sittings for which he is summoned: for although to be present there is a duty which the witness owes to the Court, yet he sufficiently discharges his duty to the party who summons him, if he be there when his evidence is wanted, and he is called upon ad testificandum. Here the cause of Lamont v. Southall was actually called on in its turn, and the period had arrived when the presence of the defendant as a witness was essential to the discharge of his duty to the plaintiff. The case of Mullett v. Hunt has decided, that in order to render the witness liable to an action for disobedience (a) 1 B. & Adol. 950. |