Examina tion. mined out of the hearing of each other, (2) Ch.III.f.6. by their variations in little circumftances, as to which they are unprepared, betray the villany of their attempt; and by their contradictions be rendered utterly unworthy of credit. A cross-examination to this extent has never been objected to; but how far a counfel may, on cross-examination, inquire into matters foreign to the caufe, for the purpose of affecting the character and credit of the witness, is, as I have before obferved, at prefent not very well fettled. Of late years, the rule has been fomewhat relaxed in the cafe of an original examination, and where it evidently appeared that a witness was hoftile to the party by whom he was called, and unwilling to answer questions put to him; the examination in chief has been permitted to affume the appearance of a cross-examination, and leading queftions to be put to a witnefs. It is impoffible to point out the cafes in which the general rule of law fhall be fo departed from; and therefore it must be left wholly to the difcretion of the judge, who in general is (x) It appears that the prefent practice of ordering witnesses out of Court during the progress of a cause, so as to prevent them from hearing the teftimony of others, is very ancient. Fortefcue de Laudibus, c. 26, fays, " Et fi neceffitas exegerit, dividantur Teftes hujufmodi, donec ipfi depofuerint, quicquid velint, ita quod dictum unius non docebit aut concitabit eorum alium ad confimiliter teftificandum. See alfo Williams v. Hulie, 1 Sid. 131. Ch.III.f.6. guided by the demeanour of the witness, and the fituation he ftands in with relation to the parties. tion. Ante, 8. Taylor, cited 3 T. Rep. 754 Jacob v, The party examined muft, as was before obferved, depofe to thofe facts only of which he has an immediate knowledge and recolTanner v. lection. He may refresh his memory with a copy taken by himself from a day-book; and if he can then fpeak pofitively as to his recollection, it is fufficient; but, if he has no recollection, further than finding the entry in his book, the book itself must be produced. Where the defendant had figned acknowledgments of having received money, in a daybook of the plaintiff, and the plaintiff's clerk afterwards read over the items to him, and he acknowledged they were all right, it was held that the witnefs might refresh his me mory by referring to the book, although there was no ftamp to the items on which the receipt was written; for this was only proving a verbal acknowledgment, and not a written receipt. Though witneffes can in general speak only as to facts, yet in queftions of fcience, perfons verfed in the fubject, may deliver their opinions upon oath, on the cafe proved by the other witneffes. Thus a physician who has not feen the particular patient, may, after hearing the evidence of others, be called to prove on his oath, the general effects of the difeafe defcribed by them; and its proba ble ble confequences in the particular cafe: for Ch.III.1.6. though not a diftinct fact, it is ftill general Examinainformation, which the reft of mankind ftand in need of, to enable them to form an accurate judgment on the fubject in difpute. tion. SECTION VII. Of procuring the Attendance of Witnesses, and their Privilege from Arrest. To enable a man to produce his witnesses before a jury in cafes where they will not voluntarily appear on his behalf, the law has provided a compulfory remedy by the writ of fubpana. The names of four witneffes may be put in this writ, and if the person whofe teftimony is required is in poffeffion of any deed or writing, the production of which is neceffary for the party, a special claufe may be inferted in the writ commanding him to bring it with him, (whence the writ is denominated a subpœna duces tecum, ) or a notice to produce the inftrument may be given to the witness at the time of ferving the fubpœna. Under this writ however the party cannot compel a third perfon to produce any paper which conftitutes a part of his title, or 405. which would expofe him to an action. The fervice Miles v. Efp. Caf. Dawson, Pearson v. Iles, Dougl 556. Ch.III.f.2. fervice of the writ of fubpoena is made by delivering a copy to the witness and fhewing him the original, at the fame time tendering a reafonable fum of money for his expences according to his ftation in life; and if after this, he neglects to attend, he will be liable either to an attachment, to an action at the common law for damages, or to an action on the ftatute of 5 Eliz. c. 9. for the penalty of ten pounds, and the further recompence given by that ftatute, at the election of the party injured by his negligence. v.Pomton, 2 Stra. 1150. But Courts of Juftice take care of the interefts of the witnefs at the fame time that Hammond they are attentive to thofe of the fuitor; and 1 Stra. 510. therefore, unless the fubpoena be ferved a reafonable time before the day of trial, fo as to Chapman enable a witness to arrange his affairs, and a fufficient fum of money tendered to him, to enable him to go to, ftay at, and return from, the place of trial, he will not be liable to punishment for neglecting to attend: if having omitted to infift on receiving the neceffary money at the time the fubpana is ferved, the witness asks for it when called, the Judge will not compel him to be fworn till fully indemnified; and if he attends and gives evidence without having been paid any thing, the perfon who caufed him to be ferved with a fubpana, will be liable to an action for his expences. When a witness is in cuftody, or ferving on board affi Fortefc. 396. Rex v. Rodham, Rex v. Burbage, board a ship and his commanding officer will Ch.III.f.7. not let him attend, a Habeas Corpus ad teftificandum is neceffary; for which an application fhould be made to a Judge, upon davit, fworn by the party applying, ftating that he is a material witness, and willing to attend. Upon this application the Judge will, if he thinks right, grant his fiat for the Cowp.672.. writ; but where it appears not to be done bond fide but with a view of removing a prifoner in execution, the Court will refufe it. So where the defendant is in cuftody on a charge of high treafon, or as prifoner at war, it will not be granted without the confent of the Secretary of State. When this writ is granted it is delivered to the officer in whofe cuftody the witnefs is, who brings him up on being paid his reasonable charges. 3 Burr. 1440, Langton K B. Sittings after 35 G. 3. v. Cotton, Trin. T. Furley v. Newnham, 419. The perfon of a witnefs attending the trial of a cause is safe from arreft in any civil action while going to, ftaying at, or returning from the place of trial, or, as it is ufually termed, eundo, morando, et redeundo, and if arrefted during this time, the Court on which he is attending will difcharge him, and cenfure the officer. This privilege has been extended even to a party attending an arbitrator; and though in ftrictnefs it does not authorize a man to loiter or deviate from the way, yet Courts of Juftice have not been very rigid Lightfoot in confining the protection; therefore, where v. Came Spence v. Stuart, 3 Eaft. 89. ron, 2 a de- Blac.1113. |