A TREATISE ON THE LAW OF EVIDENCE. PART THE FIRST. THE arrangement, which has been adopted in the fol lowing Treatise, is that which appeared the most simple and perspicuous. The work consists of two parts; the former, relating to parol or unwritten evidence; the latter, to written evidence. The subject of the first chapter is the method of compelling the attendance of witnesses for the purpose of being examined; and the five succeeding chapters treat of the causes, which render witnesses incompetent. In these, the writer has inquired into the several objections to witnesses, arising from want of reason or understanding, from defect of religious principle, from conviction of certain crimes, or from infamy of character, from interest, and lastly that arising from the relation which subsists between a client and his counsel or his solicitor. After ascertaining whether the witness is competent to give evidence, the next question, that arises, is, what evidence ought to be given, and how the witness ought to be examined. The sev enth chapter, therefore, treats of the general nature of proofs; and the eighth, of the regular mode of examining a witness. And the first part then concludes with an inquiry into bills of exception and demurrers to evidence. The second part which relates to written evidence, treats of records, of the admissibility of verdicts, and judgments, and other judicial proceedings,and of the manner in which they are to be regularly proved. Public writings, not of a judicial nature, and the inspection of such writings, are next considered; after which, follows an inquiry into the proof of private writings, the requisite of stamps on written instruments, and lastly into the admissibility of parol evidence by which written instruments may be explained or varied. Attendance in civil cases. CHAP. I. Of the Attendance of Witnesses. THE process, which courts of law have instituted for the purpose of compelling the attendance of witnesses, is by the writ of subpoena ad testificandum. (a) This writ commands the witness to appear at the trial to testify what he knows in the cause, under the penalty of 1007. to be forfeited to the King. And the stat. 5 Eliz. c. 9. s. 12. gives an additional remedy by enacting, that, "if any person (upon whom any process out of a court of record shall be served, to testify concerning any cause or matter depending there, and having tendered to him according to his countenance or calling, such reasonable sum of money for his costs and charges, as with regard to the distance of the place is necessary to be allowed,) (a) A subpœna is not necessary, if the witness will appear without one, and in case of his voluntary attendance and examination, his expenses are to be allowed equally as if he had appeared on subpœna. De Benneville v. De Bennewille, 1 Binney 46. Bac. Abr. Evidence. (D) By the act of congress of the 29th of Sept. 1789, c. 21, s. 2. revived and continued by the act of the 26h May, 1790, c. 40, it is provided, "that until further provision shall be made, and except where by this act and other statutes of the United States, it is otherwise provided, the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges in the Circuit and District courts, in suits at common law, shall be the same in each state respectively as are now used, or allowed, in the Supreme courts of the same." do not appear according to the tenor of the process, not having a lawful and reasonable cause to the contrary; he shall forfeit for every such offence 101. and yield such further recompense to the party grieved, as by the dis cretion of the judge of the court, out of which the process issues, shall be awarded." (a) * No witness is bound to appear in civil cases, unless his reasonable expenses, for going to and returning from the trial, be tendered him at the time of serving the subpœna; (b) nor, if he appears, is he bound to give evi (a) The statute of the state of New-York, on this head, is as follows:-Each person served with process to testify in any court of record within this state, shall be entitled to receive as a compensation for his attendance and expenses of such court, the daily allowance specified in the act regulating the fees of the several officers and ministers of justice within this state; and if any person being subpœnaed, upon being tendered with the amount of the said allowance, estimating each day's travelling to, attending at, and returning from such court, computing thirty miles to a day's travelling, and including one day's attendance only, shall not thereupon appear according to the tenour of the said process, without a lawful and reasonable excuse, shall forfeit to the party grieved fifty dollars, and shall also yield further recompense to the party grieved according to the loss and hin. drance sustained, to be recovered by action of debt in any court, with costs of quit. Sess. 36. c. 56. s. 20. 1 R. L. 524. The fees here alluded to are, for a wit ness attending in his county, twenty-five cents per day and attending from a foreign county, and coming and returning, fifty cents per day. 2R. L. 29. No fees for witnesses can be taxed, without proof by affidavit, of their attendance and travel. Jackson d. Kincard v. Scott, 6 Johns. Rep. 330. In Massachusetts, the certificate of the witness himself, as to his travel and attendance, is conclusive in faxing costs, unless something suspicious appear on the face of the certificate. Cook v. Holmes, 1 Mass. Rep. 295. In Connecticut, the usual process is by subpœna, signed by a justice of the peace or magistrate. When a witness has been thus summoned to appear, and his fees for travel and one day's attendance tendered to him, if he neglect to appear, the court will, on motion, issue a capias to take his body, and bring him before them, to testify. Swift's Ev. 105. (b) By the act of Congress of the 28th Feb. 1799, c. 125, s. 6, it is provided, "that the compensation to jurors and witnesses, in the courts of the United States, shall be as follows, to wit: to each grand, and other jurer, for each day he shall attend in court, one dollar and twenty-five cents, and for travelling, at the rate of five cents per mile, from their respective places of abode to the place where the court is holden, and the like allowance for returning; to the witnesses summoned in any court of the United States, the same allowance as is above provided for jurors." *3 [3] dence, till such charges are actually paid or tendered (1) If a necessary witness is brought over from a foreign (1) Chapman v. Poynton, 2 Stra. 1150, 13 East, 16. n. a. S. C. more fully stated. Bowles v. Johnson, 1 Blac. Rep. 36. Fuller v. Prentice, H. Blac. 49. Hallett v. Mears, 13 East, 15. Ex parte Roscoe, 1 Merivale, 191. (3) 4 Taunt. 55. Sturdy v. Andrews, (a) If the plaintiff subpoena witnesses, and remunerate them accordingly, who have been previously subpoenaed by, and received their expenses from the defendant,, which circumstances they conceal from the plaintiff; the court will allow the latter, the expenses he has paid those witnesses for their attendance, although they were not called for him at the trial, on the ground that such payment was obtained by fraud, Benson v. Schneider, 1 B. Moore's R. 76. King's Bench and the Court of Common Pleas, that when a witness is brought over from a foreign country, (whether brought after the commencement of an action, or before its commencement, provided he is brought over bona fide for the purposes of the particular action,) the expenses both of his *coming to this country and of his return, ought to be allowed in the taxation of costs. (1) (a) As only four witnesses can be included in one writ of subpoena (2) several writs are frequently necessary. In order to save expense, it is settled that leaving a ticket, containing the substance of the writ, will be as effectual as the writ itself; (b) but the writ ought to be shown. (2) (c) The writ or ticket should be served personally on the witness(4), and in reasonable time before the day of trial, that he may suffer the less inconvenience from his attendance on the court. (5) Notice to a witness in London at two in the afternoon, requiring him to attend the sittings at Westminster in the course of the same evening, has been held to be too short. (6) If the witness, whose attendance is required, be a married woman, it will be necessary to serve the subpoena upon her personally, (1) Tremain v. Faith, 6 Taunt. 88. 1 Marshall, 563. S. C. (2) Cowp. 846. (3) Goodwin v. West, Cro. Car. 522. 540. Maddison v. Shore, 5 Mod. 355. S. P. (4) Smalt v. Whitmill, 2 Stra. 1054. (5) Hammond v. Stewart, 1 Stra. 509. [4] (a) The Supreme Court of the state of New-York has decided, that where witnesses are brought from another state, the time of their attendance can only be computed from the place of trial, coming and returning, to the boundary line of the state. Howland & others v. Lenox & Maitland, 4 Johns. Rep. 311. (b) A subpoena ticket to appear at a term of the Supreme Court, not mentioning the place where the court was to be held, was adjudged to be sufficient. The People v. Van Wyck, 2 Caines' Rep. 338. (c) The name of a witness though not in the original subpoena may be inserted therein at any time, if the subpoena have been regularly served with a copy, Wakefield vs. Gall. 1 Holt, N. P. Rep. 526. |