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WHEN A WITNESS IS IN PRISON.
An application may be made to a judge of the Superior Courts at chambers, on affidavit, stating the imprisonment of the witness; that his evidence is material to the applicant, and that he cannot proceed safely to trial without securing his attendance. The judge, if satisfied with the substance of the application, will then grant the applicant a writ of habeas corpus ad testificandum, directed to the governor of the gaol in which the prisoner is confined, and commanding him to bring up the prisoner for examination at the trial.1 By a recent act, the Secretary of State, or a judge of the Superior Courts of Common Law, is empowered, on a similar application, to issue a warrant or order to bring up, as a witness in any court or criminal proceeding, any prisoner undergoing imprisonment on a criminal charge or conviction.
The court will grant a habeas corpus to bring up a prisoner for examination before an arbitrator appointed by the court, under 3 & 4 Will. 4, c. 42.3
MANNER AND TIME OF SERVICE.
The service must be on the witness personally; and where several witnesses are included in one writ, the practice is to serve each witness with a ticket containing a copy, or the substance of the writ, showing him at the same time the original.5 The service must be a reasonable time before trial; and generally service on the day of trial, even when the witness resides in the town, is insufficient, unless the witness receive the service without objection.7
144 Geo. 3, c. 102.
2 16 & 17 Vict. c. 30, s. 9.
3 Graham v. Glover, 26 L. T. Rep. 73
Re Pyne, 1 Dowl. & L. 703.
5 Wadsworth v. Marshall, 1 Cr. & M. 87. Barber v. Wood, 2 M. & R. 172.
Maunsell v. Ainsworth, 8 Dowl. P. C. 869.
During his attendance the witness is privileged from arrest on civil process, and he is allowed a reasonable time, in going and returning from court. If he be arrested during the time, it is a contempt of court.1 The privilege does not extend to an arrest on criminal process,2 nor where the witness is retaken by his bail, after he has finished his evidence.3
EXPENSES OF WITNESSES.
By 5 Eliz. c. 9, s. 12, a witness is substantially rendered liable to penalties if he do not attend at the trial, after having been served with process out of a Court of Record, "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, not having a lawful and reasonable cause to
Accordingly, in civil proceedings, no witness, although served with a subpoena, is bound to attend at trial unless his reasonable expenses are tendered to him when he is served, or a reasonable time before trial. The sum tendered should be a reasonable compensation for his travelling expenses and subsistence during the attendance. The amount allowed in the Superior Courts of Common Law is fixed by the scale approved by the judges (Reg. Hil. T. 16 Vict.), and a scale is also fixed by the County Court Rules. A witness will be entitled to his expenses, although a party to the cause, if he be a material and necessary witness. It appears to be assumed that in Courts of Equity a witness's expenses will be taxed as at common law.5 In criminal
1 Kimpton v. London and North Western Railway Company, 23 L. J. 252, Exch.
2 Re Douglas, 3 Q. B. 825.
32 Phill. 429.
Howes v. Barber, 21 L. J. 254, Q. B.
5 Tayl. 971.
cases a witness for the prosecution is not entitled absolutely to his expenses, and he cannot refuse to attend or give evidence on the ground that his expenses have not been tendered or paid; but in courts of final jurisdiction they are generally allowed by the court under various acts. When the witness lives out of the jurisdiction of the court, and in a distinct part of the United Kingdom, as in Scotland or Ireland, by the 45 Geo. 3, c. 92, s. 3, he is not bound to appear to give evidence in a criminal prosecution unless his reasonable expenses be paid or tendered to him at the time when he is served with the subpoena.1 In any other case a witness, subpoenaed on a criminal trial, is bound to attend without any tender of expenses, and will be liable to attachment for non-attendance; although, if it appeared that he could not defray the expenses of his journey, the court would probably refuse to attach.2
If a witness appear on his subpoena in a civil proceeding, he will not be compellable to give evidence until his reasonable expenses have been paid him, or tendered by the party who subpœnaes him.3
If a witness appears on a subpœna duces tecum, and refuses to produce the documents on the ground of privilege, secondary evidence will be admissible. But if he refuse to produce them without any such justification or excuse, secondary evidence cannot be given; but the witness will be liable to attachment, or an action.4
NON-ATTENDANCE OF WITNESSES.
In criminal cases and examinations under commissioners, depositions may generally supply the place of
1 R. v. Brownell, 1 A. & E. 602.
2 2 Phill. 441.
3 Newton v. Harland, 1 M. & G. 956.
an absent witness; but, in civil proceedings generally, a party has no right to claim a postponement of a trial on the ground that a witness whom he had subpoenaed does not appear. But when a witness is material, and a satisfactory case is presented to a judge on affidavit of the facts, and the applicant has been guilty of neither fraud nor laches, a judge will usually grant a postponement of a trial, with the consent of parties, till a later day of the sittings, if the business of the court permit; otherwise the party must proceed; or, if a plaintiff, he may withdraw the record.
ON THE EXAMINATION OF WITNESSES.
WHEN a witness is placed in the witness box, and no objection taken or sustained against his competency by the adverse party, he must be sworn by the officer of the court, or, when an affirmation is allowed, he must declare an affirmation. He may then be submitted to three distinct kinds of examination as to his knowledge of the facts which he is called to prove. 1st. He may be examined in chief by the party who calls him. 2nd. He may be cross-examined by the adverse party. 3rd. He may then be re-examined by the party who calls him. Rules are established for the general conduct of each of these modes of examination, and it is the purpose of this chapter to state and explain them.
THE EXAMINATION IN CHIEF.
The object of the examination in chief is to elicit from the witness all the material facts which tend to prove the case of the party who calls the witness. In such a case, as the presumption and the ordinary fact are, that the witness, having been chosen by the party who calls him, is favourable to his cause, and therefore likely to overstate or misstate the circumstances which conduce to establish the party's case, it is a principal rule that