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Vict. c. 30, s. 9, that any Secretary of State, and any judge of the superior courts of Common Law at Westminster, may, if he think fit, upon application by affidavit issue a warrant or order under his hand, for bringing up any prisoner or person, confined in any gaol, prison, or place, under any sentence or under commitment for trial or otherwise (except under process in any civil action, suit, or proceeding), before any court, judge, justice, or other judicature, to be examined as a witness in any cause or matter, civil or criminal, depending, or to be inquired of, or determined in or before such court, judge, justice, or judicature; and the person required by any such warrant or order, to be so brought before such court, judge, justice, or judicature, shall be so brought under the same care and custody, and be dealt with in like manner, in all respects, as a prisoner required by any writ of habeas corpus awarded by any of her Majesty's superior courts of law at Westminster, to be brought before such court to be examined as a witness in any cause or matter depending before such court, is now by law required to be dealt with."

Mode of compelling the attendance of witnesses-consequences of neglect to obey subpoena. Where a person who has been duly served with a subpoena, and who is able to do so, neglects to appear in obedience to it, he is punishable by attachment, and if taken under the attachment, he may be detained until he has given evidence upon the trial of the prisoner, and may then be set at liberty. 1 Chitty, C. L. 614.1 The party disobeying is subject to an attachment although the cause was not called on. Barrow v. Humphreys, 3 B. & A. 598, 5 E. C. L. It is not necessary, in order to make a witness liable for disobeying a subpoena, that the jury should have been sworn. Mullett v. Hunt, 3 *Tyrw. 875; 1 Cr. & M. 752. Neither does it seem requisite that the party should have been called on his subpoena, [*112 particularly if he did not attend the court at all. Dixon v. Lee, 5 Tyrw. 180; 1 Cr. M. & R. 645; R. v. Stretch, 5 A. & E. 503, 31 E. C. L. But in order to ground a motion for an attachment, the affidavit must state that the party was a material witness. Tinley v. Porter, 2 M. & W. 822; and if it appear, by the notes of the judge at the trial or upon affidavit, that the testimony of the witness could not have been material, the rule for an attachment will not be granted. Dicas v. Lawson, 5 Tyrw. 235; 1 Cr. M. & R. 934.2

If the subpoena issued out of the crown office, the Court of Queen's Bench will, upon application, grant the attachment. R. v. Ring, 8 T. R. 585. When the process is not issued out of the crown office, and it is served in one part of the United Kingdom for the ance of witness in another part, it is enacted by 45 Geo. 3, c. 92, ss.

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1 United States v. Caldwell, 2 Dall. 333. S. Where under the Alabama code an indictment is laid for refusing to obey a subpoena, it must contain a substantive description of the subpoena and its service. Drake v. State, 60 Ala. 62. An attachment may issue solely on the sheriff's return. Wilson v. State, 57 Ind. 71.

The fact of the illness of a witness may be proved by the affidavit of the defendant. And in an application for a continuance upon such affidavit it is proper to refuse to issue an attachment for said witness. Cutler v. State, 42 Ind. 244.

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3, 4, U. K., that the court issuing such process may, upon proof to their satisfaction of the service of the subpoena, transmit a certificate of the default of the witness under the seal of the court, or under the hand of one of the justices thereof to the Court of King's Bench if the service were in England, to the Court of Justiciary if in Scotland, and to the Court of King's Bench in Ireland, if in Ireland, which courts are empowered to punish the witness in the same way as if he had disobeyed a subpoena issued out of these courts, provided the expenses have been tendered. Vide ante, p. 108.

Where the subpoena has not issued from the crown office, application must be made to the court out of which the process issued; for it has been decided that disobedience to a subpoena issued by a court of quarter sessions is not a contempt of the Court of King's Bench. R. v. Brownell, supra. It has been said that justices in sessions have no power of proceeding against a party by attachment. Hawk. P. C. bk. 2, c. 8, s. 33, the authority for which appears to be the case of R. v. Bartlett, 2 Sess. Ca. 291. But courts of quarter sessions may fine an individual for a contempt in not obeying a subpoena, in like manner as it is their constant practice to fine jurors who do not attend when summoned. See R. v. Clement, 4 B. & Ald. 218, 6 E. C. L. It has been held, that if a witness refuses to give evidence before a court of quarter sessions, he may be fined, and imprisoned until the fine be paid. R. v. Lord Preston, 1 Salk. 278. And it can scarcely be doubted that he may be committed, though he may not be attached, for there is a distinction between commitment and attachment; see R. v. Bartlett, ubi supra; Bac. Abr. Courts, E. A peer of the realm is bound to obey a subpoena, and is punishable in the same manner as any other subject for disobedience. Id. If the witness can neither be attached or committed, he may be indicted.

Remuneration of witnesses. At common law there was no mode provided for reimbursing witnesses for their expenses in criminal cases; but by the 27 Geo. 2, c. 3; 18 Geo. 3, c. 19; and 58 Geo. 3, c. 70, provision was made for this purpose in cases of felony. By the 7 Geo. 4, c. 64, the above statutes are repealed, and the expenses of witnesses in most cases of misdemeanor, and all cases of felony, are now allowed, as also the expenses of witnesses for the defence called before the magistrates and bound by recognizance to appear at the trial. See 30 & 31 Vict. c. 35, s. 5, post, Appendix of Statutes. See *also 29 & 30 Vict. c. 52, as to expenses before magistrates, *113] post, tit. Practice. The various statutory provisions which empower courts of justice to grant costs in criminal cases, showing when witnesses will be entitled to them, will be found discussed at length under the title "Costs."1

Witness bound to answer without tender of expenses. Where a subpoena is served on a person in one part of the United Kingdom for

1 The daily compensation of a witness is not increased by the fact that he is subpœnaed in more than one case. Harden v. Polk Co., 39 Iowa, 661.

his appearance in another, under the 45 Geo. 3, c. 92 (ante, p. 108), it is provided that the witness shall not be punishable for default, unless a sufficient sum of money has been tendered to him, on the service of the subpoena, for defraying the expenses of coming, attending and returning. In this case, therefore, in order that the subpoena may be effectual, the expenses must be tendered. But this only applies to a witness brought from one great division of the United Kingdom, as Scotland or Ireland, to another.1 Supra, p. 108. It has, indeed, been doubted whether in other criminal cases, a witness may not, unless a tender of his expenses has been made, lawfully refuse to obey a subpoena, and the doubt is founded upon the provision of the above statute. 1 Chitty, Cr. Law, 613. The better opinion, however, seems to be, and it is so laid down in books of authority, that witnesses making default on the trial of criminal prosecutions (whether felonies or misdemeanors) are not exempted from attachment, on the ground that their expenses were not tendered at the time of the service of the subpoena, although the court would have good reason to excuse them for not obeying the summons, if in fact they had not the means of defraying the necessary expenses of the journey. 2 Phill. Ev. 440, 10th ed.; 3 Russ. Cri. 599, 5th ed. "It is," says Mr. Starkie, "the common practice in criminal cases, for the court to direct the witness to give his evidence, notwithstanding his demurrer on the ground that his expenses have not been paid." 1 Ev. 83 (a) 2nd ed. And, accordingly, at the York summer assizes, 1820, Bayley, J., ruled, that an unwilling witness, who required to be paid before he gave evidence, had no right to demand such payment. His lordship said, "I fear Í have not the power to order you your expenses;" and on asking the Bar if any one recollected an instance in point, Scarlett answered, "It is not done in criminal cases." 1 Anon., Chetw. Burn. 1001; 3 Russ. Cri. 599, 5th ed. (s). So on the trial of an indictment which had been removed into the Queen's Bench by certiorari, a witness for the defendant stated, before he was examined, that at the time he was served with the subpoena no money was paid him, and asked the judge to order the defendant to pay his expenses before he was examined. Park, J., having conferred with Garrow, B., said, "We are of opinion that I have no authority in a criminal case to order a defendant to pay a witness his expenses, though he has been subpoenaed by such defendant; nor is the case altered by the indictment being removed by certiorari, and coming here as a civil cause." R. v. Cooke, 1 C. & P. 321. In R. v. Cousens, Glouc. Spr. Ass. 1843, 3 Russ. Cri. 599, 5th ed., (s), Wightman, J., directed an officer of the Ecclesiastical Court, who had brought a will from London under a subpoena duces tecum to go before the grand jury, although he objected on the ground that his

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1 Witnesses for the defendant in a prosecution for a misdemeanor are not bound to attend the trial, unless their fees are paid as in civil cases; otherwise in prosecutions for felony. Chamberlain's Case, 4 Cow. 49. [On the question whether experts can be compelled to testify without professional compensation in advance. Buchman v. State, 59 Ind. 1; Dills v. State, Id. 15.] The insufficiency of the sum tendered is of no avail, if no objection on that account was made by the witness at the time. Addrews v. Andrews, Coleman, 119; s. c. 2 Johns. Cas. 109. S.

favor of the prisoner for an inspection of them. R. v. Collucci, 3 F. & F. 103.

Mode of compelling the attendance of witnesses—habeas corpus ad testificandum. Where a person required as a witness is in custody, or under the duress of some third person, as a sailor on board of a ship of war, so as to prevent his attendance, the mode of compelling is to issue a habeas corpus ad testificandum. For this purpose application must be made to the court before which the prisoner is to be tried, or to a judge, upon an affidavit, stating that the party is a material witness, and willing to attend. R. v. Roddam, Cowp. 672; 2 Phill. Ev. 429, 10th ed.; 1 Stark. Ev. 81, 3rd ed. The court will then, if they think fit, make a rule, or the judge will grant his fiat for a writ of habeas corpus; R. v. Burbage, 3 Burr. 1440; 2 Phill. Ev. 429, 10th ed.; which is then sued out, signed, and sealed. Tidd's Prac. 809.

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Formerly, it was doubted whether persons in custody could be brought up as witnesses by writ of habeas corpus, to give evidence before any other courts than those at Westminster; but by the 43 Geo. 3, c. 140, a judge of the King's Bench or Common Pleas, or a baron of the Exchequer, may, at his discretion, award a writ of habeas corpus ad testificandum, for bringing any prisoner detained in any gaol in England before a court martial, or before commissioners of bankruptcy, commissioners for auditing the public accounts, *or other commissioners, acting by virtue of any royal commission or warrant.

*111]

By the 44 Geo. 3, c. 102, U. K., the Judges of the King's Bench, or Common Pleas, or Barons of the Exchequer in England or Ireland, or the justices of oyer and terminer, or gaol delivery (being such judge or baron), have power to award writs of habeas corpus, for bringing prisoners, detained in gaol, before such courts, or any sitting at nisi prius, or before any court of record in the said parts of the said United Kingdom, to be there examined as witnesses, and to testify the truth before such courts, or before any grand, petit, or other jury, in any cause or matter, civil or criminal, which shall be depending, or to be inquired into, or determined, in any of the said

courts.

The application under this statute ought to be to a single judge. R. v. Gordon, 2 M. & S. 582.

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 expenses. 2 Phill. Ev. 430, 10th ed.; 1 Stark. Ev. 82, 3rd ed. If the witness be a prisoner of war, he cannot be brought up without an order from the Secretary of State. Furly v. Newnham, 2 Doug. 419.

A witness may be brought up on habeas corpus from a lunatic asylum, on an affidavit that he is fit for examination, and not dangerous. Fennel v. Tait, 5 Tyrw. 218; 1 Cr. M. & R. 584.

Mode of compelling the attendance of a witness-by warrant from the Secretary of State or judge. It is enacted by 16 & 17

Vict. c. 30, s. 9, that any Secretary of State, and any judge of the superior courts of Common Law at Westminster, may, if he think fit, upon application by affidavit issue a warrant or order under his hand, for bringing up any prisoner or person, confined in any gaol, prison, or place, under any sentence or under commitment for trial or otherwise (except under process in any civil action, suit, or proceeding), before any court, judge, justice, or other judicature, to be examined as a witness in any cause or matter, civil or criminal, depending, or to be inquired of, or determined in or before such court, judge, justice, or judicature; and the person required by any such warrant or order, to be so brought before such court, judge, justice, or judicature, shalĺ be so brought under the same care and custody, and be dealt with in like manner, in all respects, as a prisoner required by any writ of habeas corpus awarded by any of her Majesty's superior courts of law at Westminster, to be brought before such court to be examined as a witness in any cause or matter depending before such court, is now by law required to be dealt with."

Mode of compelling the attendance of witnesses-consequences of neglect to obey subpoena. Where a person who has been duly served with a subpoena, and who is able to do so, neglects to appear in obedience to it, he is punishable by attachment, and if taken under the attachment, he may be detained until he has given evidence upon the trial of the prisoner, and may then be set at liberty. 1 Chitty, C. L. 614.1 The party disobeying is subject to an attachment although the cause was not called on. Barrow v. Humphreys, 3 B. & A. 598, 5 E. C. L. It is not necessary, in order to make a witness liable for disobeying a subpoena, that the jury should have been sworn. Mullett v. Hunt, 3 *Tyrw. 875; 1 Cr. & M. 752. Neither does it seem requisite that the party should have been called on his subpoena, particularly if he did not attend the court at all. Dixon v. Lee, 5 Tyrw. 180; 1 Cr. M. & R. 645; R. v. Stretch, 5 A. & E. 503, 31 E. C. L. But in order to ground a motion for an attachment, the affidavit must state that the party was a material witness. Tinley v. Porter, 2 M. & W. 822; and if it appear, by the notes of the judge at the trial or upon affidavit, that the testimony of the witness could not have been material, the rule for an attachment will not be granted. Dicas v. Lawson, 5 Tyrw. 235; 1 Cr. M. & R. 934.'

[*112

If the subpoena issued out of the crown office, the Court of Queen's Bench will, upon application, grant the attachment. R. v. Ring, 8 T. R. 585. When the process is not issued out of the crown office, and it is served in one part of the United Kingdom for the appearance of witness in another part, it is enacted by 45 Geo. 3, c. 92, ss.

1 United States v. Caldwell, 2 Dall. 333. S. Where under the Alabama code an indictment is laid for refusing to obey a subpoena, it must contain a substantive description of the subpoena and its service. Drake v. State, 60 Ala. 62. An attachment may issue solely on the sheriff's return. Wilson v. State, 57 Ind. 71.

The fact of the illness of a witness may be proved by the affidavit of the defendant. And in an application for a continuance upon such affidavit it is proper to refuse to issue an attachment for said witness. Cutler v. State, 42 Ind. 244.

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