By statute 11 & 12 Vict., c. 42, § 20, the justice before whom the preliminary investigation is heard, is authorised in all cases, whether of felony or misdemeanor, to bind by recognisance all such persons as know the facts or circumstances of the case, to appear and give evidence before the grand jury and at the trial against the party accused;' and the Act of 7 Geo. 4, c. 64, gives similar power to all coroners, taking an inquisition, whereby any person shall be indicted for manslaughter or murder, or as an accessory to murder before the fact.2

§ 1117. These provisions, which respectively apply to justices and coroners not only of counties, but of all other jurisdictions,' are obviously of great use in promoting the due administration of justice; but, in order to avoid any hardship which, in the event of non-attendance, witnesses might incur from having their recognisances indiscriminately estreated, it is enacted, that the officer of the court, by whom the estreats are made out, shall prepare a written list of defaulters, specifying the name, residence, and trade or profession of each, the nature of the offence respecting which he was to testify, the cause, if known, of his absence, and the fact whether by reason of his non-attendance the ends of justice have been defeated or delayed. This list must then be laid before the judge at the assizes, or before the recorder or other corporate officer, or the chairman or two other justices of the peace at the sessions, who are respectively required to examine it, and to make such order touching the estreating of the recognisances as they shall consider just; but no recognisance can be estreated or put in process, without the written order of the presiding judge or other persons, before whom the list has been laid. If the witness,

The corresponding Irish Act, 14 & 15 Vict., c. 93, enacts in § 13, clause 6, that "whenever in cases of indictable offences the justice or justices shall see fit, they may bind the witnesses by recognisance to appear at the trial of the offender and give evidence against him," and if such witnesses refuse to be bound, they may be committed. The form of the recognisance is given in the Schedule of the Act.

27 Geo. 4, c. 64, § 4; 9 Geo. 4, c. 54, § 4, Ir.

3 11 & 12 Vict., c. 42, §§ 1, 16, 20; 7 Geo. 4, c. 64, § 6; 14 & 15 Vict., c. 93, § 44, Ir.

4

+7 Geo. 4, c. 64, § 31; 9 Geo. 4, c. 54, § 34, Ir.

after having been examined on oath before the magistrate or coroner, shall refuse to be bound over, he may be committed; ' and where a married woman, who could not enter into her own recognisance, refused either to appear at the sessions or to find sureties for her appearance, the Court held that the justice was fully warranted in committing her, in order that she might be forthcoming as a witness at the trial. It seems that a recognisance to prosecute or give evidence is binding on an infant; at least, it has been held that infancy is no ground for discharging a forfeited recognisance to appear at the assizes to prosecute for felony; but the better opinion is, that a justice is not authorised to commit any witness for refusing to find sureties to be bound with him, provided he be willing to enter into his own recognisance.*

§ 1118. This mode of enforcing the attendance of witnesses is not confined to proceedings by indictment, but may be adopted in several cases, where an appeal lies to the sessions from the conviction of one or more justices. Thus for example, the Act of 9 Geo. 4, c. 61, which was passed to regulate alehouses, after enacting, in § 27, that any person, who thinks himself aggrieved by any act of any justice done in execution of that Act, may appeal to the sessions, on giving due notice to the justice of his intention so to do, and entering into his recognisance with two sufficient sureties to appear at the sessions, try the appeal, abide by the judgment of the Court, and pay the costs awarded;provides that, in such case, the justice, before whom the recognisance shall have been entered into, may summon any person, whose evidence shall appear material, and require him to be bound in recognisance to appear at the sessions, and to give evidence in such appeal; and in case such person shall neglect or refuse to obey the summons, or shall refuse to enter into the

1 11 & 12 Vict., c. 42, § 20; 2 Hale, P. C. 282; Bennet v. Watson, 3 M. & Sel. 1; 9 Geo. 4, c. 54, § 2, Ir. See Ashton's case, 7 Q. B. 169.

* Bennet v. Watson, 3 M. & Sel. 1.

2 Ex parte Williams, 13 Price, 670; M'Clel. 493, S. C.

Per Graham, B., as cited 2 Ch. Burn's J., 122, per Lord Denman in

Evans v. Rees, 12 A. & E. 59.

recognisance, he may be apprehended by the warrant of the justice; and if he shall still refuse to enter into such recognisance, he may be committed to prison. So if any person, convicted of a third offence against the Act passed to permit the retail of beer and cyder,' shall appeal to the sessions, and enter into the recog nisance mentioned in the Act, the justices, who shall take such recognisance, are required to bind the person who shall make the charge in a recognisance to appear at the sessions, to give evidence against the person so charged; "and, in like manner, to bind any other person who shall have any knowledge of the circumstances of such offence." Again, the statute for the punishment of rogues and vagabonds enacts, in § 9, that when any justice shall commit any incorrigible rogue to the house of correction, there to remain till the next sessions, or when any idle or disorderly person, rogue and vagabond, or incorrigible rogue, shall give notice of his intention to appeal, and shall enter into recognisances to prosecute such appeal, such justice shall require the person by whom such offender shall be apprehended, and the persons whose evidence shall appear material to prove the offence, and to support such conviction, to become bound in recognisance to appear at the sessions, to give evidence against such offender; and the justices at sessions are empowered to order the treasurer of the county, &c., to pay such sum to the prosecutor and witnesses, as will re-imburse them for their expenses and trouble and loss of time; and in case any such person shall refuse to enter into such recognisance, the justice may commit him to prison.

§ 1119. Similar clauses, varied, as to their language, according to the taste or practical knowledge of the draughtsmen, are scattered through the volumes of the statutes; though in numerous instances, as in the larceny Act,' the Act relating to

1 11 Geo. 4 & 1 Will. 4, c. 64.

2 § 16.

See also 4 & 5 Will. 4, c. 85, § 11; and 3 & 4 Vict., c. 61, § 21.

3 5 Geo. 4, c. 83.

* See the Act for the suppression of Gaming Houses, 17 & 18 Vict.,

c. 38, § 10; and that regulating the slaughter of horses, 7 & 8 Vict., c. 87, § 9.

5

7 & 8 Geo. 4, c. 29, § 72.

malicious injuries to property,' the Game Acts,' the Act regulating mines and collieries,' the Act to prevent frauds of manufacturers, the Lunatic Asylums Act of 1853,' the Coal-whippers Act of 1851, and in many more that might be cited, the power of binding witnesses by recognisance is omitted in the clauses giving an appeal to the sessions; and in some statutes, as in those which relate to buildings in the metropolis,' and to the embezzlement of public stores, the justices in sessions, to whom the appeal lies, are expressly empowered to call witnesses before them by summons or precept.

§ 1120. A second mode" of procuring the attendance of witnesses, which may be adopted in criminal cases, and which constitutes the ordinary summons in civil proceedings, is by serving the witness with a writ of subpœna ad testificandum. This a judicial writ, directed to the witness, commanding him in the Queen's name and under a certain penalty," to appear at the Court, and to testify what he knows in a cause pending therein, which is described in the writ. If the witness be required to produce any books or papers in his possession, a clause to that effect is inserted in the writ, which is then termed a subpoena duces tecum.

1 7 & 8 Geo. 4, c. 30, § 38.

252 Geo. 3, c. 93, Sched. L, § 13; 1 & 2 Will. 4, c. 32, § 44; 9 Geo. 4, c. 69, § 6.

10

$ 39 & 40 Geo. 3, c. 89, § 21.

A portion of the following 34 pages has already appeared in the Law Rev., No. 2, p. 284-297.

"In the forms issued by the Court of Chancery, the penalty is omitted.

This additional clause is to the following effect :-" and also, that you do diligently and carefully search for, examine, and inquire after, and bring with you and produce at the time and place aforesaid, a bill of exchange, dated" &c. (here describing with precision the papers and documents to be produced,)"together with all copies, drafts, and vouchers relating to the said documents, and all other documents, letters, and paper writings whatsoever, that can or may afford any information or evidence in the said cause; then and there to testify and show all and singular those things, which you (or either of you) know, or the said documents, letters, or instru

§ 1121. When a witness is served with a subpoena duces tecum, he is bound to attend with the documents demanded therein, if he has them in his possession, and he must leave the question of their actual production to the judge, who will decide upon the validity of any excuse that may be offered for withholding them.' An attachment, therefore, will lie against an overseer or solicitor of a parish, who, in an inquiry touching the settlement of a pauper, refuses to bring the rate-books of such parish to the petty sessions, in obedience to a Crown office subpœna; though it may be very questionable whether he would be bound to submit these books to examination, in the event of his bringing them into court. So, the fact that the legal custody of the instrument belongs to another person will not authorise a witness to disobey the subpoena, provided the instrument be in his actual possession; but documents filed in a public office are not so in the possession of the clerk, as to render it necessary, or even allowable, for him to bring them into court, without the permission of the head of the office."

§ 1122.5 Writs of subpoena suffice for only one sitting or term of the Court; and, therefore, if the cause be made a remanet, or be adjourned to another term or session, the writ must be resealed, and the witness summoned anew. But a subpoena, requiring the party to attend a trial on the commission-day extends to the whole assizes, which, by a curious fiction of law, are supposed to last but one day.' Again, if any alteration be made in the writ, after it is sued out, though before it is served, it must be re

ments in writing do import, of and concerning the said cause now depending. And this you (or any of you) shall in no wise omit," &c. 3 Chitty's Gen. Pract. 830, n.; Amey v. Long, 9 East, 473.

1

Amey v. Long, 9 East, 473; 6 Esp. 116; 1 Camp. 14 S. C. ante, § 22; and as to what is a valid excuse, see ante, §§ 428-430.

2 R. v. Greenaway, and R. v. Carey, 7 Q. B. 126.

3

Amey v. Long, 1 Camp. 14, per Lord Ellenborough.

See

Thornhill v. Thornhill, 2 Jac. & W. 347; Austin v. Evans, 2 M. & Gr. 430.

Gr. Ev., § 309, as to first four lines.

Sydenham v. Rand, 3 Doug. 429; S. C. cited 2 Tidd, 855, 8th ed.

7 Scholes . Hilton, 10 M. & W. 15; 2 Dowl. N. S. 229, S. C.; Swanne v. Taaffe, 8 Ir. Law R. 101.