4

(2) The testimonial duty, like other fundamental duties, may subject the violator of it to an action by the person injured by the violation, that is, by the party whose cause fails to be duly vindicated in court for lack of the testimony. Ordinarily, the plaintiff at common law in such an action on the case would have the difficult task of proving that his loss of his rights was caused specifically by the defendant's failure to bear testimony. The statute of Elizabeth * attempted to ease this difficulty by providing also that a person failing to obey a summons to testify should forfeit a specific sum of money to the party summoning him; the latter expedient has frequently been imitated in modern statutes.5 The action against one whose false testimony has resulted in the unjust loss of a party's cause seems to rest equally, in principle, upon a violation of the testimonial duty; but the doctrine of privilege in substantive law has been thought to protect against such claims.

(3) The testimonial duty is temporarily paramount to other considerations; moreover, subjectively, the witness should be encouraged, by the removal of all obstacles, to fulfil it freely and promptly; hence, an immunity from arrest on civil process is conceded to him, pending his travel to and from the place of trial and his stay at the place. This immunity, as affecting a number of rules of legal procedure and substantive right, is beyond the scope of the rules of evidence.

§ 2196. Privilege personal to the Witness; Party's Objections. The grounds for exemption from the testimonial duty are entirely extrinsic to the purpose of ascertaining the truth (ante, § 2175). They are based on a policy of dispensing with the compulsion of attendance and disclosure wherever it is not necessary, or is more disadvantageous in respect to other interests of the community (ante, § 2192). The exemptions are therefore in no sense provided for the benefit of the party whose opponent is deprived by them of the evidence which he desires. They are not intended to secure for him a better likelihood of demonstrating the truth of his cause; on the contrary, they constitute so many obstacles to the ascertainment of the truth, and these are suffered only because the several extrinsic policies are deemed to be in these respects paramount to the purpose of ascertaining the truth. For example, if Doe offers to prove the contents of a document, the rule that he must produce the original is a rule intended to secure a better likelihood of learning the contents accurately, and the invocation of it by his opponent Roe is the invocation of a rule which is directly intended to assist Roe in the establishment of the facts of the case. But, when Doe calls a witness who is exempted by illness from attendance, or is privileged not to disclose his title-deeds, it is

N. Y. 89, 61 N. E. 118 (attorney-general, and justices of the Supreme Court); 1903, U. S. v. Beavers, 125 Fed. 778 (U. S. Commissioner).

Upon the general question of the jurisdiction and power of various officers to use process of contempt in compelling testimony, consult the following: 1903, Manson v. Wilcox, 140 Cal. 206, 73 Pac. 1004; Rapalje on Witnesses, $$ 303 ff.

Ante, § 2190.

5 For examples, see the following cases: Yeatman v. Dempsey, 7 C. B. N. s. 628, and annotation in 97 Eng. Com. L. R.; 1834, Wilkie v. Chadwick, 13 Wend. 49; 1836, Smith v. Merwin, 15 id. 184; 1838, Mattocks v. Wheaton, 10 Vt. 493, 494.

6 The cases are collected in Ames' Cases on Torts, I, 618, note 6.

7 Greenleaf, Evidence, §§ 316-318, and cases cited; Rapalje on Witnesses, § 305.

obvious that this rule is in no sense directed to the better ascertainment of the facts, nor intended to safeguard Roe in his interest as a suitor entitled to a careful investigation of the facts. It concerns solely the interests of the witness, in his relation to justice and the State, - his interests not to have his testimonial duty enforced against him where paramount considerations of policy prevail over the purpose of judicial investigation.

Three consequences follow: (1) The claim of privilege can be made solely by the witness himself; the privilege (as the common phrasing runs) is purely personal to himself. Whether he chooses to fulfil his duty without objection, or whether he prefers to exercise the exemption which the law concedes to him, is a matter resting entirely between himself and the State (or the Court as its representative). The party against whom the testimony is brought has no right to claim or to urge the exemption on his own behalf; and, on the witness' behalf, the Court is to be left to accord the protection if it is a proper one.1

(2) (a) An improper ruling by the Court, upon a question of privilege, cannot be excepted to by the party as an error justifying an appeal and a new trial, if the ruling denies the privilege and compels the witness to testify. By hypothesis, the privilege does not exist for the benefit of the party nor for the sake of the better ascertainment of the truth of his cause. The offered testimony is relevant, and is, in all other respects than the privilege, admissible. The admission of it, by denying the privilege, has not introduced material which in any way renders less trustworthy the finding of the verdict; on the contrary, only the exclusion of it could have been an obstacle to the ascertainment of the truth. The only interest injured is that of the witness himself, who has been forced to comply with a supposed duty, which as between himself and the State did not exist; his remedy was to refuse to obey, and to appeal for vindication if the Court had attempted improperly to use compulsory process of contempt. This view has been accepted by some. Courts. But the opposite view naturally possesses attraction for those Courts and they are in the majority who cannot evade the AngloNorman instinct to look upon litigation as a legalized sport, of orthodox

1 This is conceded with practical unanimity. Its application to the privilege against self-crimination, the privilege against anti-marital testimony, and the privilege for client's communications to attorneys, where special questions arise, is treated post, § 2270, 2242, 2321. Its application to other privileges in general is seen in the following cases: 1841, Doe v. Egremont, 2 Moo. & Rob. 386 (on counsel appearing for a witness claiming privilege for documents, Rolfe, B., refused to hear him, ruling that the witness should state the reasons for his claim, and then the judge is "to give to the witness the protection claimed, if he finds him to be entitled to it "); 1877, Laliberté v. R., 1 Can. Sup. 117, 131, 139, 140, by three judges; 1822, Treat v. Browning, 4 Conn. 408, 418 (self-disgracing testimony); 1890, Boyer v. Teague, 106 N. C. 576, 625, 11 S. E. 665 (voter's privilege); 1890,

State v. Kraft, 18 Or. 550, 556, 23 Pac. 663, 665
(voter's privilege); 1842, Ralph v. Brown, 3 W.
& S. 395, 400; 1902, State v. Hill, 52 W. Va.
296, 43 S. E. 160 (self-disgracing facts); 1902,
State v. Prater, ib. 132, 43 S. E. 230 (similar);
1868, State v. Olin, 23 Wis. 309, 318 (voter's
privilege).

2 1834, Marston v. Downes, 1 A. & E. 31, 34
(the mortgage of a third person having been
proved to the jury, against his protest and in
supposed violation of his privilege, held that
"the defendants were not a privileged party,
and they therefore had no right of objection,
even on the supposition that the learned judge
had done wrong "); 1842, Ralph v. Brown, 3 W.
& S. 395, 400 (Gibson, C. J.; "Nor is the viola-
tion of his right a subject of exception, for no
one else is injured by it"); 1863, People v.
Pease, 27 N. Y. 45, 72, per Selden, J.

respectability, with high stakes, the game to be conducted according to strict rules under judicial supervision, and to be won or lost according as these rules are observed or disregarded. From this point of view, plainly, the trial Court's erroneous denial of privilege is a proper subject for exception and forms per se a reason for putting the opposing party, irrespective of the truth of the cause, to the delay, expense, and risk of a new trial. Upon the sporting theory of litigation there is no escape from this conclusion; though it is impossible to reach that conclusion upon any other theory. The sporting theory 3 maintains thus far the upper hand, and by most Courts the party is to-day allowed the right to except to a ruling erroneously denying a privilege.4

(b) If, however, the ruling erroneously affirms the privilege, the case is different; for here the party who desired the testimony has obviously lost evidence which by hypothesis is relevant and might have assisted the establishment of the truth of his cause. Hence, the deprival of this evidence is for him as proper a ground of complaint and exception as it would be in any other instance, and may become a ground for granting a new trial, so far as the rejection of a specific item of evidence can ever be properly so considered.6

(3) The privilege being purely personal to the witness, it follows, conversely, that the irrelevancy of a fact inquired about can never justify a privilege of refusing to answer. As the party has no concern with privilege proper, so the witness has no concern with anything but privilege. Irrelevancy is a ground for objection by the party alone.7

The kinds of exemption which

§ 2197. Kinds of Privilege, summarized. are accorded to a person in respect of his testimonial duty may be grouped under two heads, according as they exempt him either merely from the task of travelling to and attending the court where his testimony is desired, or, having attended, from disclosing a certain part of his knowledge. An exemption of the first sort which may be termed viatorial privilege - may and sometimes does result in an exemption also of the second sort, i. e. from giving any testimony whatever; but this is rather an accidental and not an intended effect-as appears when a witness is exempted from attendance at the court-room, but is nevertheless still liable to testify before a commissioner sent to take his deposition at his residence. An exemption of the second

The cases applying it to the privilege against self-crimination and the privilege against antimarital testimony, which involve special questions, are collected under those heads, post, §§ 2241, 2270. The following cases apply it to other privileges: 1854, Phelps v. Prew, 3 E. & B. 430; 1868, State v. Olin, 23 Wis. 309, 318.

5 This is conceded in all the cases cited supra, note 2: 1842, Coleridge, J., in Doe v. Date, 3 Q. B. 609, 621: "There is a very broad distinction between cases where the privilege has been [erroneously] allowed and those where

In

it has been [erroneously] disallowed. In the
former case, a party has been precluded from
proving that which he was entitled to prove.
the latter case, the party [person] whose privi-
lege has been disallowed has no locus standi in
banc....
Legitimate evidence has been pro-
duced against him [the party]; he is not preju-
diced by that, and can have no ground for com-
plaint." Contra: 1853, Dickerson v. Talbot, 14
B. Monr. 49, 53 (title-deeds of third person).

6 For these considerations, see ante, § 21.
7 This doctrine is examined in detail post,

§ 2210.

sort, which may be termed testimonial privilege, or Privilege proper, never includes or effects an exemption of the first sort.

The viatorial privilege consists in exempting the witness from attendance until three conditions are fulfilled: first, he is to have notice that his testimony is required, and be summoned to attend; secondly, he is, in some cases, to receive in advance an indemnity for his expenses; and, thirdly, he is to be excused where his health or other sufficient circumstance constitutes an inability to attend.

The testimonial privileges fall naturally under two heads, according as the disclosure which they affect is a topic or class of facts in his knowledge, or is a communication from or to another person, irrespective of its subject. The concededly privileged topics are some half-dozen in number, although others have been from time to time sought to be added to the list. The privileged communications, as universally conceded, are those made by persons holding a certain confidential relation, in particular, that of husband and wife, attorney and client, fellow-jurors, and government and informer; to these are added, in some jurisdictions, the relations of priest and penitent, and physician and patient; and occasionally sundry other additions have been attempted.

TITLE II (continued): PRIVILEGE.
SUB-TITLE II: VIATORIAL PRIVILEGE.

CHAPTER LXXV.

$ 2199. (1) Notice and Summons; Subpoena. § 2200. Same: Subpoena duces tecum for Documents.

§ 2201. (2) Indemnity for Expenses; (a) Tender in Advance.

§ 2202. Same: (b) Amount of Charges. § 2203. Same: Expert's Fees.

§ 2204. (3) Inability to Attend; in General. § 2205. Same: (a) Illness, and the like; Merchants' Books.

§ 2206. Same: (b) Sex, Occupation; Officers and Official Records.

§ 2207. Same: (c) Distance from Place of Trial.

§ 2199. (1) Notice and Summons; Subpœna. Common fairness prescribes that, before the witness be enforced to perform his testimonial duty, adequate and express notice be given him that the testimony is likely to be needed, and a formal summons be made to him to attend for the purpose. This process secures the effect, not only of notifying him when, and where, and in what sort of cause his testimony is wanted, but also of assuring him that the authority of State has sanctioned the demand, of furnishing him a voucher for proving his claim to indemnity (where it is not demandable in advance), as well as of satisfying the Court, in case the witness is not present when called to the stand, that due diligence has been used to procure him and (in a contempt proceeding) that a default appears prima facie on his part.

The form of document traditionally used for this purpose is the writ of subpoena,1 which commands the witness to appear at a certain court on a certain day to testify what he knows in a cause between certain parties and to attend the court for that purpose until discharged. Where the witness is desired to bring documents, a specific clause to that effect is additionally required to be inserted.2 The notice conveyed in the subpoena is secured by reading or showing it to him and furnishing him with a copy,3 the original being taken back by the process-server for filing in court with his indorsement or affidavit of service. The service is sometimes made by leaving the copy at the witness' place of abode or of business, although a personal service into the witness' hands may in strictness be required. The service should be made a reasonable time before the day specified for attendance; and the witness is ordinarily not deemed to be in default unless the service conforms to these requirements. The sufficient question in all cases should be, Has the person in all probability had actual knowledge, a reasonable time beforehand, that his testimony would be lawfully required at the time and place specified ? 4 Upon principle, therefore, where a person already in court is

1 So called from the closing words of the writ, which commanded the party to attend in person, on a penalty for disobedience; the full Latin clause is given ante, § 2190, note 19; for the history of the subpoena see the citations ib.

note 27.

2 Post, $2200.

66

3 It has long been settled that an abstract of the writ, or subpana-ticket" suffices: 1639, Goodwin v. West, Cro. Car. 522, 540.

This question depends rather upon general principles as to the service of process, and not