A TREATISE ON THE LAW OF EVIDENCE. PART THE FIRST. work. THE arrangement, which has been adopted in the follow- Plan of the ing treatise, is that which appeared the most simple and perspicuous. The work consists of two parts; the former, relating to parol or unwritten evidence; the latter, to written evidence. The subject of the first chapter is the method of compelling the attendance of witnesses for the purpose of being examined; and the five succeeding chapters treat of the causes, which render witnesses incompetent. In these, the writer has inquired into the seyeral objections to witnesses, arising from want of reason or understanding, from defect of religious principle, from conviction of certain crimes or from infamy of character, from interest, and lastly that arising from the relation which subsists between a client and his counsel or his solicitor. After ascertaining whether the witness is competent to give evidence, the next question that arises, is, what evidence ought to be given, and how the witness ought to be examined. The seventh chapter, therefore, treats of the general nature of proofs; and the eighth, of the regular mode of * 2 examining a witness. And the first part *then concludes with an inquiry into bills of exception and demurrers to evidence. The second part, which relates to written evidence, treats of records, of the admissibility of verdicts, and judgments, and other judicial proceedings, and of the manner in which they are to be regularly proved. Public writings, not of a judicial nature, and the inspection of such writings, are next considered; after which, follows an inquiry into the proof of private writings, the requisite of stamps on written instruments; and, lastly, into the admissibility of parol evidence by which written instruments may be explained or varied. Attendance THE process, in civil cases. CHAP. I. On the Attendance of Witnesses. which courts of law have instituted for the purpose of compelling the attendance of witnesses, is, the writ of subpoena ad testificandum (a). This writ commands the witness to appear at the trial to testify what he knows in the cause, under the penalty of 100l. to be forfeited to the king. And the stat. 5 Eliz. c. 9. s. 12. gives an additional remedy by enacting, that, "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 (a) A subpœna is not necessary, if the witness will appear without one, and in case of his voluntary attendance and examination, his expenses are to be allowed equally as if he had appeared on subpoena. De Benneville v. De Benneville, 1 Binney 46. Bac. Abr. Evidence. (D) the place is necessary to be allowed,) do not appear according to the tenour of the process, not having a lawful and reasonable cause to the contrary; he shall forfeit for every such offence 101., 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 (b)." *No witness is bound to appear in civil cases, unless his reasonable expenses, for going to and returning from the (b) The statute of the state of New-York, on this head, is as follows:-Each person served with process to testify in any court of record within this state, shall be entitled to receive as a compensation for his attendance and expenses of such court, the daily allowance specified in the act regulating the fees of the several officers and ministers of justice within this state; and if any person being subpoenaed, upon being tendered with the amount of the said allowance, estimating each day's travelling to, attending at, and returning from such court, computing thirty miles to a day's travelling, and including one day's attendance only, shall not thereupon appear according to the tenour of the said process, without a lawful and reasonable excuse, shall forfeit to the party grieved fifty dollars, and shall also yield further recompense to the party grieved according to the loss and hindrance sustained, to be recovered by action of debt in any court, with costs of suit. Sess. 36. c. 56. s. 20. 1 R. L. 524. The fees here alluded to are, for a witness attending in his county, twenty-five cents per day and attending from a foreign county, and coming and returning, fifty cents per day. 2 R. L. 29. No fees for witnesses can be taxed, without proof by affidavit, of their attendance and travel. Jackson d, Kincard v. Scott, 6 Johns. Rep. 330. In Massachusetts, the cer tificate of the witness himself, as to his travel and attendance, is conclusive in taxing costs, unless something suspicious appear on the face of the certificate. Cook v. Holmes, 1 Mass. Rep. 295. In Connecticut, the usual process is by subpoena, signed by a justice of the peace or magistrate. When a witness has been thus summoned to appear, and his fees for travel and one day's attendance tendered to him, if he neglect to appear, the court will, on motion, issue a capias to take his body, and bring him before them, to testify. Swift's Ev. 105, : * 3 4 trial, be tendered him at the time of serving the subpoena ; nor, if he appears, is he bound to give evidence, till such charges are actually paid or tendered (1), except he reside within the bills of mortality, and be summoned to give evidence within them (2). The necessity of this previous tender arises from the special provision in the act of Elizabeth before cited. If a necessary witness is brought over from a foreign country after the commencement of an action, and gives evidence at the trial, the reasonable expenses of his passage over, and of his subsistence here pending the action, will be allowed on the taxation of costs. This point was determined by the Court of Common Pleas in the case of Cotton v, Witt (3); in which case, it may be proper to observe, an application had been made to the opposite party for his consent to the examination of the witness on interrogatories, which had been refused. In the taxation of costs in that case, the expenses of the witness's return to his own country after the trial were not allowed. According to the report, little notice appears to have been taken of that point; and no reason seems to have been stated for making the distinction. The allowance of expenses in the case of foreign witnesses is from analogy to the common case of witnesses resident in this country; and there, on the taxation of costs, the expenses are allowed for the witness's return to his place of residence, as well as for his journey to the place of trial. And it should seem, from the reported opinion of the present Chief Justice of the Court of Common Pleas in the later case of Sturdy v. Andrews (4), that, when a witness is brought over from a foreign country after the commencement of an action, the expenses both of his *coming to this country and of his return ought to be allowed in the taxation of costs. But such costs will not be allowed, if the witness has been brought over from abroad (1) Chapman v. Poynton, Stra. 1150. 13 East, 16. n. a. S. C. more fully stated. Bowles v. Johnson, 1 Blac. Rep. 36. Fuller v, Prentice, 1 H. Blac. 49. (2) 3 Blac. Com. 369. Tidd, Prac. 805. (3) 4 Taunt. 55. |