CHAPTER VII. OF WITNESSES, COMPELLING THE ATTENDANCE THEREOF, TAKING DEPOSITIONS, AND OF OATHS AND AFFIRMATIONS. I. OF COMPELLING THE ATTENDANCE OF WITNESSES; AND HEREIN, 1. Of the Subpoena and Service thereof. 2. Of the fees allowed to Witnesses. 3. Of proving Demand, Discount, or Set-off by Adverse Party. 4. Of Attachment against Defaulting Witness. II. OF TAKING DEPOSITIONS. III. OF OATHS AND AFFIRMATIONS. 1. OF COMPELLING THE ATTENDANCE OF WITNESSES; AND HEREIN, 1. Of the Subpoena, and Service thereof. Revised Statutes, 320, Sec. 36: "When either party shall require the attendance of a witness, in any suit pending before a justice, it shall be the duty of the justice to issue a subpoena in the following form, as nearly as the case will admit, viz: STATE OF TULINOIS, Form of Subpoena. The People of the State of Illinois, to A. B.: You are hereby commanded to appear before me at day of on the at o'clock, then and there to testify the truth in a matter in suit, wherein C. D. is plaintiff, and E. F. defendant. And this you are not to omit under the penalty of the law. Given under my hand and seal, this day of, 18—. JOHN DOE, J. P. Which subpoena may be served by a constable, or any other person, by reading the same to the witness, but no mileage shall be allowed to the person serving the same. "SEC. 37. In all cases where a justice of the peace is required to issue a subpoena, at the instance of either party to a suit, it shall be his duty to insert the names of four witnesses in each subpoena, if the party demanding the same shall require the attendance of that number. And in no case shall a justice of the peace be permitted to charge and receive pay for any subpoena commanding the citation of a less number, where as many as four shall be required by the same party at the same time, to be used in the same suit." It not unfrequently happens that the party requiring the attendance of a witness, wishes also the exhibition in court of certain books and papers in his possession, or under his control, in which case a subpoena duces tecum may be issued, which is a writ or process of the same kind as the ordinary subpoena, including a clause requiring the witness to bring with him and produce to the court, books, papers, &c., in his hands, tending to elucidate the matter in issue.1 Form of Subpoena duces tecum. STATE OF ILLINOIS, The People of the State of Illinois, to A. B.: You are hereby commanded to appear before me at on the day of at o'clock, then and there to testify the truth in a matter in suit, wherein C. D. is plaintiff, and E. F. defendant, and that you then and there bring with you, and produce at the time and place aforesaid, to be used as evidence, (here describe the document required particularly by date, &c., as the case may permit.) And this you are not to omit under the penalty of the law. Given under my hand and seal, this day of 2. Of the Fees allowed to Witnesses. 18-. Revised Stat. 320, Sec. 38. "Each witness so summoned shall be entitled to fifty cents for attending on each trial, to be taxed with the other costs of suit, and paid when the debt and costs are collected; but if more than two witnesses shall be sworn in any case to testify to one (1) 3 Bl. Com. 383. fact on the same side, the party requiring such extra witness shall be at the whole expense of procuring the same; but no such fee shall be taxed by the justice, unless claimed by the witness attending." By this section, it will be seen that witnesses are allowed fees only in case they have been regularly summoned according to the provisions of section 36, and also where fees are claimed; which may be done at any time before the costs are taxed up by the justice. Witnesses who are subpoenaed and attend in a cause, on the trial, are entitled to their fees whether they are sworn or not.1 3. Of proving Demand, Discount, or Set-off by adverse party. Rev. Stat. 320, Sec. 39. "In all trials before justices of the peace, when either party may not have a witness or other legal testimony to establish his or her demand, discount, or set-off, the party claiming such demand, discount, or set-off, may be permitted to prove the same by the testimony of the adverse party. And if such adverse party shall not appear at the time of trial, or shall refuse to be sworn or to testify, then the party claiming the same shall be permitted to prove his or her demand, discount, or set-off, by his or her own oath; provided, that such party claiming the benefit of his own oath or that of the adverse party, shall first make oath that he has a demand, discount, or set-off, in said cause, and that he knows of no witness by whom he can prove the same except by his own oath, or that of the adverse party; provided further, that no person shall be allowed to prove his demand, discount, or set-off, unless the adverse party be present, or shall have been notified thereof, and for which purpose the justice may continue the cause for such time as may be necessary." Form of Oath to be Administered, where evidence of adverse party is desired. You do solemnly swear that you have a demand, discount, or set-off, against C. D. in the cause now in hearing, and that you know of no witness by whom you can prove the same, except by your own oath, or that of the said C. D. "Sec. 40. When any plaintiff, at the time of commencing his suit, shall signify his desire to prove his debt or demand, as provided in the preceding section, and shall file the necessary affidavit, the justice may issue his summons in the following form: (1) 3 Scam. 17. The People of the State of Illinois to any Constable of said County, in said county, on the "You are commanded to summon C. D. to appear before me at my office in day of 18—, at the hour of - o'clock, —, to answer the complaint of A. B. for a failure to pay him a certain demand not exceeding one hundred dollars, and hereof make due return as the law directs. The said defendant is hereby also notified that the said plaintiff says that he has no witness by whom to prove his demand, except it be by his own oath or the oath of the said defendant; and unless the said defendant appear at the trial of said complaint, the plaintiff will be permitted to prove his demand by his own oath, as by law is directed in such cases. "Sec. 41. If the defendant or defendants shall not appear at the time of trial, after being served with such summons according to law, and no sufficient reason be assigned to the justice why he or she does not appear, then the plaintiff shall be permitted to prove his or her demand by his or her own oath, without giving any other or further notice to the defendant or defendants." 4. Of Attachment against Defaulting Witness. By the Rev. Stat. 322, Sec. 48, it is provided that in all cases where a witness shall be duly served with a subpoena, and shall fail to attend at the trial, conformably thereto, the justice shall have power to issue an attachment, directed to any constable of the county, commanding him forthwith to bring before such justice the body of such witness, so failing to attend as aforesaid, to show cause why he should not be fined for such contempt; and on the appearance of such witness on such attachment, it shall be lawful for the justice of the peace to fine him in any sum not less than one dollar nor more than ten dollars, or wholly discharge him, if satisfactory excuse be made. It has sometimes been held necessary that the cause should be called on for trial, the jury sworn and the witness called to testify, before an attachment can issue against him for default; but the better opinion is, that the witness is to be deemed guilty of contempt whenever it is dis tinctly shown that he is absent from court with intent to disobey the writ of subpoena, and that the calling of him in court is of no other use than to obtain clear evidence of his having neglected to appear, but that is not necessary, if it can be clearly shown by other means that he has disobeyed the order of court. An attachment for contempt proceeds not upon the ground of any damage sustained by an individual, but is instituted to vindicate the dignity of the court; and it is said, that it must be a perfectly clear case to call for the exercise of this extraordinary jurisdiction; the motion for an attachment should therefore be brought forward as soon as possible; and the party applying must show by affidavit or otherwise that the subpoena was seasonably and personally served on the witness.1 Form of Attachment Against a Defaulting Witness. The People of the State of Illinois to any Constable of said County, GREETING: We command you to attach C. D., if he may be found in your county, and bring him forthwith before E. F., Esquire, a justice of the peace in and for the said county, at his office in in said county, to answer unto us and show cause, if any he has, why he should not be fined for contempt, in not obeying our writ of subpœna, commanding him to appear on the day of, 18-, before the said justice, to testify in a suit then and there depending, to be tried between J. K., plaintiff, and L. M., defendant, on the part of the plaintiff, (or “defendant.") And we further command you to detain him in your custody until he shall be discharged by said justice, or be further dealt with according to law. Given under the hand and seal of said justice, this 18-. day of E. F., J. P. [SEAL.] For further forms of proceeding in the foregoing case, see “DOCKET ENTRIES." II. OF TAKING DEPOSITIONS. A Deposition, is the testimony of a witness reduced to writing in (1) 1 Greenl. Ev. § 319. |