* 10

[13]

he is willing to attend. (a) (1) Upon this application the court in its discretion will make a rule, or the judge will grant his fiat for a writ (2), which is then sued out, signed, and sealed. (3) 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.(b) If the witness be a prisoner of war, he may be examined by consent or interrogatories, but cannot be brought up without an order from the secretary of state. (4)

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 gaol in England, before a court-martial, or before commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting by virtue of any royal commission or warrant: and the stat. 44 G. 3. c. 102. authorizes the judges of the court of King's Bench, or Common Pleas, or Exchequer, in England or Ireland, or justices of oyer and terminer or gaol delivery (being such judge or baron), to award writs of habeas corpus for bringing prisoners detained in gaol before any of the courts, or any sitting at nisi prius, or before any court of record in those parts of the United Kingdom, to be then examined as witness in any civil or criminal cause; and by the same act, justices of great sessions in Wales and the county palatine of Chester have the same authority within the limits of their jurisdiction.

(1) Roddam's cases, Cowp. 672.
(2) Burbage's case, 3 Burr. 1440.

(3) Tidd. Pr. 739.

(4) Furly v. Newubam, 2 Doug. 419.

(a) Whether the witness should not have been previously served with a subpo na? Quare, R. v. Roddam, Corp. 672

(5) Noble v. Smith, et al. 5 Johns. Rep. 357.

When a material witness resides abroad, or is going Witness abroad. abroad, and cannot attend at the trial, the party requir ing 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, (a) if the witness reside in town, or, if he reside in the country or abroad, before commissioners, specially appointed and approved by both parties. (1) The rule or order for such examination, which is only secondary evidence, cannot be obtained without the consent of both parties. (b) 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. (2)

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. (3) 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.(c)

(1) 2 Tidd. Pr. 812.

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

(a) Post see 290, chap. 4. Pt. 2.

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

(b) In the state of New-York, the examination of witnesses before commissioners out of the state, is provided for by statute. And the consent of both parties is not necessary; either party may apply to the court, and upon shewing good cause, a commission will be granted. 1 N. R. L. 520. chap. 56. sec. 11.

(c) 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.

* 11

[14]

Subpœna duces tecum.

* 12

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 injustice 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.(1) 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 (2), &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 for a commission.(3) (a)

Where a cause of action has arisen in India, or any of fence 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. ss. 40. 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

(1) Saunders v. Pitman, 1 Bos. and Pull, 33.

(2) Robinson v. Smyth, 1 Bos. and

Pull. 454.
(3) Gallaird v. Vaughan, 1 Bos, and
Pull, 212.

(a) 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. The King of Spain v. Oliver, 1 Peters, 217. As to the practice relative to putting off trials on account of the absence of a material witness, vide Rer 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. Borven v Douglas, 2 Dall. 44, Pennington v Scott, ibid. 94. White v Lynch, ibid. 183. Symes's Lessee v Irvine, ibid. 383. Davidson v Bronn, 4 Binney, 243. Commonwealth v. Millard, ▲ Mass. Rep. 6 Smith v Barker, 3 Day, 280. Anonymous, ibid. 308. The United States v Frink, 4 Day, 471.

after proof of a reasonable notice they are refused, se condary 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 ther 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)

*CHAP. II.

Of the Incompetency of Witnesses from want of Under

standing.

WHEN a witness appears, he must be regularly sworn, unless an objection is made to his competency;

(1) Attorney-General v. Le Mer- Winter, 3 T. R. 306.

chant, 2 T. R. 203. n.

Cates q. t. v.

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

(a) Vide Wood v. Strickland, 2 Merivale, 464.

(b) Ina Nisi Prius case, Lord Kenyon ruled, that the court could not compel a witness, who had been served with a subpœna duces tecum, to produce a private paper. Miles v. Dawson, 1 Esp. 405. However, Lord Ellenborough considers that case as establishing in principle, nothing more than this, that there are circumstances in respect of which, the production of an instrument, required in the terms of a subpana, would not be inforced by the authority of the court. Amey v Long,

* 13

[16]

and the course of proceeding is, that the party, who objects to the witness, should state all his objections at the same time, in order to prevent unnecessary delay. (1) An exception to the credibility of a witness cannot exclude him from being sworn. The exception of kindred, for example, although it is a good cause of challenge against a juror, is not an objection to the competency of a witness; a father is a competent witness for, or against his son, and a master for his servant, or the, servant for his master. Such exceptions may affect the credibility, but they do not affect the competency of witnesses.

As it is the province of the jury to consider what degree of credit ought to be given to evidence, so it is for the court alone to determine whether a witness is competent or the evidence admissible. Whether there is any evidence, is a question for the cient, (a) is for the jury.(2)

(1) Lord Lovat's case, 9 St. Tr. 652. (2) By Buller, J. Comp. of Carpen

judge: whether it is suffi And whatever antecedent

ters, &c. v Hayward, Doug. 375. Bull. N. P. 297.

9 East. 485. It seems now to be well settled, that a witness under a subpœna du ces tecum must produce all papers called for which he has in his actual custody, even those which he holds as agent of third persons--and though there be a regu lar way prescribed by law for obtaining them, the court in their discretion will determine what papers ought to be withheld, and will guard the interest of third parties. Corsen v Dubois, 1 Holt. N. P. Rep. 239. Jackson v Burtis, 14 Johns Rep. 391. Post sec. 2. chap. 8. Pl. 2.

(a) Vide Wills v Tucker, 3 Binney, 370, 372, 373. Hardaway v Manson, 2 Mun. 230. Shanks & M Rae v Fenwick, Ibid. 487. 1 Wash. 90. Roseboom v Billington, 17 Johns. Rep. 182. The rule, that it is the province of the jury alone to decide on the sufficiency of the evidence, has, in Virginia, been carried to the extent of prohibiting the Court from instructing, or giving an opinion to, the jury, on the sufficiency of the evidence. Fisher's Ex'r. v Duncan & Turnbull, 1 Hen. and Mun. 563. Keel & Roberts v Herbert, 1 Wash. 203. When, however, the judge does give an opinion to the jury on a matter of fact, it should be by way of advice, and not of positive direction, as on a question of law. New-York Firemen Ins. Co. v Walden, 12 Johns. Rep. 513. Illegal or improper evidence, (however unimportant it may be to the cause,) ought never to be confided to the jury; for if it should have an influence upon their minds, it will mislead them; and if it should have none, it is useless and may at least produce perplexity. Lee v Tapscott, 2 Wash. 276. Brown & Boisseau v May, 1 Mun. 291. Pinfield v; Carpenter, 13 Johns, Rep. 350. Miller v Stalkes, ib. 517. The character of witnesses,