PART III.

CHAPTER I.

THE ATTENDANCE OF WITNESSES.

PROCESS.

THE attendance of witnesses in the High Court (a), and, when such process is necessary, in the criminal courts, is obtained by serving the witness with a subpoena ad testificandum. If the witness is required to produce a document he is served with a subpœna duces tecum. A subpoena can be issued without leave of the court at any stage of the proceedings (b). A subpoena duces tecum ought to specify the documents required, but if a person served with a subpœna admits that he has the documents required with him, he must produce them (c). A person cannot, of course, be compelled by subpoena to produce books which are not in his possession or under his control.

(a) R. S. C. 1883, Ord. 37, r. 20.

(b) Raymond v. Tapson, L. R., 22 Ch. D. 430; 31 W. R. 394. (c) Lee v. Angus, L. R., 2 Eq. 59.

Thus, a secretary of a company served with a subpoena to produce the books of the company was held not to have disobeyed the subpoena by not producing the books, they having been removed from him since the service of the subpoena by the board of directors of the company (d).

PENALTY FOR NON-ATTENDANCE.

(5 Eliz. c. 9, s. 12.)

"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, 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 107., and yield such further recompense to the party grieved as by the discretion of the judge of the court, out of which the process issues, shall be awarded." This enactment is made perpetual by 26 & 27 Vict. c. 125.

If a witness does not attend on his subpoena he may be proceeded against in either of three ways:1st. Under the above statute he may be sued for the penalty of 107., and further recompense; or,

(d) See R. v. Stuart, 2 Times Law Reports, 144.

2nd. In an action for damages (e); or,

3rd. He may be attached for contempt of court: but, on the motion for an attachment, it must be shown distinctly on affidavit that the witness was served; that his expenses were paid or tendered to him at the time of service; and that everything reasonable has been done to secure his attendance (ƒ).

ATTENDANCE IN CRIMINAL PROCEEDINGS.

Generally the witnesses for a prosecution are bound over, by the committing magistrate or coroner, on recognizances conditioned to be forfeited if the witness do not appear to give evidence on the trial of the prisoner; but if a witness is not so bound over, his attendance may, and ought to be, secured at the trial by serving him previously with a subpœna to appear and give evidence, on the prosecution of the prisoner, at the trial. A magistrate or coroner may bind over a person to appear as a witness at the trial, at any time before the trial, and may commit him if he refuses to be bound over. If the witness does not appear, the recognizance is forfeited and the penalty levied. A subpoena may be obtained at the Crown Office in London, from the clerk of assize at the assizes, and the clerk of the peace at quarter sessions. If a subpoenaed witness

(e) Pearson v. Isles, Dougl. 561.

(f) Garden v. Cresswell, 2 M. & W. 319.

does not attend he may be attached, or indicted. A prisoner may subpoena witnesses for his defence (g). By 30 & 31 Vict. c. 35, s. 3, prisoners are to be asked by magistrates if they wish to call witnesses; if they do, the depositions are to be taken, and signed, and transmitted to the court of trial in the same way as the depositions of the witnesses for the prosecution; and the magistrate may bind over by recognizance to give evidence at the trial such witnesses as in their opinion give evidence material to the case, or tending to establish the innocence of the accused; and such witnesses are to be liable to all laws in force relating to witnesses for the prosecution. This provision does not extend to witnesses to character. By sect. 5, where witnesses are bound over to appear on behalf of the prisoner at his trial, the court may allow their expenses.

ATTENDANCE IN THE BANKRUPTCY COURTS

Is enforced by subpoena issued by the court at the instance of an official receiver, trustee, creditor, debtor, or respondent, in any matter (1). The subpoena may be duces tecum. The names of three witnesses may be inserted in the subpoena. The subpoena must be proved personally, and service may be proved by affidavit. Wilful non-compliance with a subpoena is punishable as a contempt of court.

(g) 1 Anne, c. 9, s. 3.

(h) Bankruptcy Rules, 1886, 61-71.

With the view of facilitating the obtaining of information as to the debtor, his dealings, or his property, the Bankruptcy Act, 1883, contains, in sect. 27, the following provisions:

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(1.) The court may, on the application of the official receiver or trustee, at any time after a receiving order has been made against a debtor, summon before it the debtor or his wife, or any person known or suspected to have in his possession any of the estate or effects belonging to the debtor, or sup posed to be indebted to the debtor, or any person whom the court may deem capable of giving information respecting the debtor, his dealings or property, and the court may require any such person to produce any documents in his custody or power lating to the debtor, his dealings or property (i). (2.) If any person so summoned, after having been tendered a reasonable sum, refuses to come before the court at the time appointed, or refuses to produce any such document, having no lawful impediment made known to the court at the time of its sitting and allowed by it, the court may, by warrant, cause him to be apprehended and brought up for examination. (3.) The court may examine on oath, either by word of mouth or by written interrogatories, any person so brought before it concerning the debtor, his dealings or property. (6.) The court may, if it think fit, order that any person who if in England would be

(i) The deponent may be cross-examined, but his evidence cannot be contradicted: Ex parte Tilley, L. R., 20 Q. B. D. 518: 59 L. T. 188; 36 W. R. 388.