in the Princess of Wales's apartments that night; and the Princess Charlotte desired Mr. Brougham to make a minute (which would now-a-days be called a protocol) of her final resolution against the match, giving him and the others present authority, that as soon as they should hear of it being to proceed they should make this protocol public, to show that she gave no free consent, and that any pretended consent was extorted by force. All present signed this instrument - of which as many copies were made as there were persons present or rather it was executed in sexplicate original, and each of the six was signed by the young Princess and all the other five. Thus ended the extraordinary scene — and thus vanishes the illusion of Mrs. F.'s account, which has its origin in confounding some jocose remarks of her venerable relative, and giving, as facts, some matters which he must have stated as mere speculations. The fact as we have now given it was, though more shortly, given by Lord Brougham in the lifetime of the Duke of Sussex, as well as of two of the ladies above named, and who are still alive. His account was drawn up in Lord Eldon's lifetime also; and was expected to be read by him within a few days after it was written. He died, however, while it was printing.

We here close this article, which has extended to so considerable a length that we cannot now add the commentary which remains to be given upon Lord Eldon's judgments, the portion of the subject which, as we have already observed, Mr. Twiss's work, so valuable in other respects, has inadequately treated. It is sufficient for the present to observe, first, that these decisions, numerous as they are, and involving as they do a great variety of questions both of Equity and Law, bear very rarely any marks of personal or party prejudice having usurped the mind of the Judge; secondly, that with many important faults, arising from the over-anxious and over-subtle complexion of his mind, they contain a most valuable body of judicial learning, and of positive determination, to which the student of jurisprudence will ever resort for instruction, and the tribunals of this country for direction, as long as the system of English law endures.

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284

ART. II. ON ENFORCING

THE ATTENDANCE OF

WITNESSES AT COMMON LAW.

As we consider that we cannot render a better service to our readers than occasionally to collect and classify the latest cases on a practical subject, we shall endeavour, in the present article, to show in what manner the attendance of witnesses can be enforced in the common law courts; and we hope that those of our readers, who are daily engaged in the preparation of evidence for trials at Nisi Prius, may find the result of our labours of some practical use.

We do not, however, here purpose to discuss the mode of enforcing the attendance of witnesses by recognizance, which is a form of proceeding exclusively confined to the criminal courts, and to some few appeals at the quarter sessions; neither do we intend to treat of writs of habeas corpus ad testificandum, which are granted in those cases alone, where the witness is in custody, or, being in the military or naval service, is not amenable to the ordinary process of the law; but our observations will be confined to the incidents attendant on the service of writs of subpœna ad testificandum.

This process, which is often used in criminal cases, and constitutes the usual summons in civil proceedings, is a judicial writ, directed to the witness, commanding him, in the Queen's name, to appear at the Court, and to testify what he knows in the cause therein described, pending in such Court, under a certain penalty mentioned in the writ. If the witness is required to produce any books or papers in his possession, a clause to that effect is inserted in the writ, which is then termed a subpœna duces tecum.

This writ, equally with the common subpoena, is compulsory upon the witness, who must attend with the documents demanded therein, if he has them in his possession, and leave the question of their actual production to the judge, who

will decide upon the validity of any excuse that may be offered for withholding them. The fact that the legal custody of the instrument belongs to another person will not authorise a witness to disobey the subpoena, provided the instrument be in his actual possession2; but documents filed in a public office are not so in the possession of the clerk as to render it necessary, or even allowable, for him to bring them into Court without the permission of the head of the office." Writs of subpoena suffice for only one sitting or term of the Court; and, therefore, if the cause is made a remanet, or is postponed by adjournment to another term or session, the writ must be resealed, and the witness summoned anew. So any alteration be made in the writ after it is sued out, though before it is served, it must be resealed; and, therefore, when the day of appearance named in a subpœna was altered by the attorney from one term to another, it was held that the writ thereby became void, and that the witness, on whom it was served subsequently to the alteration having been made, might consequently treat it as waste paper. But a subpoena, requiring the party to attend a trial on the commission-day extends to the whole assizes, which, by a curious fiction of law, are supposed to last but one day."

if

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The service of a subpoena upon a witness ought always to be made in a reasonable time before trial, to enable him to put his affairs in such order that his attendance on the Court may be as little detrimental as possible to his interest.7 On this principle, a summons in the morning to attend in the afternoon of the same day has, more than once, been held insufficient, though the witness lived in the same town, and very near to the place of trial. Where, however, a witness was served at twelve o'clock, while standing on the steps of the

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1 Amey v. Long, 9 East. 473.; 6 Esp. 116.; 1 Camp. 14. S. C.

2 Id.; 1 Camp. 14., per Lord Ellenborough.

3 Thornhill v. Thornhill, 2 Jac. & W. 347.; Austin v. Evans, 2 M. & Gr. 430.

+ Sydenham v. Rand, 3 Doug. 429.; S. C., cited 2 Tidd. 855., 8th edit.

5 Barber v. Wood, 2 M. & Rob. 172., per Lord Abinger.

6 Scholes v.

Hilton, 10 M. & W. 15.; 2 Dowl. N. S. 229. S. C.

7 Hammond v. Stewart, 1 Str. 510.

8 Id.; Barber v. Wood, 2 M. & Rob. 172., per Lord Abinger,

court-house, and being then told that the cause was coming on that day, replied "very well," the Court held that his non-attendance at five o'clock, when the trial was heard, rendered him liable to an action, since his answer was equivalent to an admission that the service was in time.1 So if a witness is in Court, he cannot, it seems, object to give evidence on the ground that the subpoena has only just been served upon him2; neither in criminal prosecutions can he decline to be sworn, though he has not been subpoenaed at all. In civil cases, however, a witness may always refuse to be examined unless he be properly served with a writ.* Where a subpoena, requiring the attendance of a witness on the 31st of March, and so on from day to day, until the issue should be tried, was served on the 2d of April, when the witness was distinctly told that the trial had not come on, he was held civilly responsible for disobeying the writ on the 6th of April, when the cause was heard 5; though, had he received no notice at the time of service that the cause had not then been tried, the result might have been different, and he would, at least, have avoided the penalty of an attachment. As the question whether the writ has been served within a reasonable time is in the discretion of the judge, and must vary according to the circumstances of each case, it is hoped that the decisions cited above will be sufficient to illustrate the general practice; but we may notice, that, in the United States, the reasonableness of the time is generally fixed by statute, one day being usually allowed for every twenty miles, that intervene between the residence of the witness and the

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1 Maunsell v. Ainsworth, 8 Dowl. 869., per Parke & Alderson Bs.; Jackson v. Seager, 13 Law J. N. S. Q. B. 217., per Wightman J.

2 Doe v. Andrews, 2 Cowp. 845.

3 R. v. Sadler, 4 C. & P. 218., per Littledale J.

4 Bowles v. Johnson, 1 W. Bl. 36. See contrà, Blackburn v. Hargreave, 2 Lew. 259., where Hullock B. is reported to have held, that, if a witness be in Court, having come there on other business, he cannot refuse to be sworn, though his expenses be not tendered. Sed. qu. A witness is not bound to obey a subpoena unless his expenses be tendered, although the party who requires his testimony is suing in formâ pauperis. 2 Lew. 259., per Hullock B. 5 Davis v. Lovell, 7 Dowl. 178.

6 Id. 183.; Alexander v. Dixon, 1 Bing. 366.; 8 Moore, 387., S. C.

place of trial. Perhaps a somewhat similar rule might, with advantage, be adopted in this country.

As to the manner of service, it is not usual to part with the original writ, which may, indeed, include the names of four witnesses; but the practice is to make out for each witness a subpoena-ticket, which is a copy of the writ, or at least a statement of its substance duly certified, and then to serve the witness personally with this ticket, at the same time showing him the original writ. It seems that the necessity of personal service will not be dispensed with, even though it be sworn that the witness keeps out of the way to avoid such service3; and the provision, which requires the production of the original writ at the time of serving the copy, must be strictly followed, since otherwise the witness cannot be chargeable with a contempt in not appearing upon the summons. If the subpoena-ticket vary in any material degree from the original writ, as where the ticket required the witness to attend on the 24th of May, and the writ itself specified the 27th, an attachment for disobedience cannot be obtained. So the writ must state, with reasonable certainty, the name of the cause, as also the place, in which the attendance of the witness is required. Thus, in a subpoena to attend an action of ejectment, the names of the lessors of the plaintiff must be introduced; and if it be a town cause, the writ must specify whether it will be tried at Westminster or at Guildhall. Where, however, the subpoena required the attendance of the witness at Westminster Hall, the nisi prius sittings being, in fact, held at the adjoining Sessions House, it was held that an attachment might be granted for nonattendance at the Sessions House, notices being affixed to the wall of the Court in Westminster Hall, directing witnesses

1 See Doe v. Andrews, 2 Cowp. 846.

• Maddison v. Shore, 5 Mod. 355.; Cro. Car. 540.

3 See Re Pyne, 1 Dowl. & L. 703.

4 Wadsworth v. Marshall, 1 Cr. & M. 87.; R. v. Wood, 1 Dowl. 509., per Littledale J.; Garden v. Cresswell, 2 M. & W. 319.; 5 Dowl. 461. S. C.; Jacob v. Hungate, 3 Dowl. 456.

5 Doe v. Thomson, 9 Dowl. 948., per Wightman J.

Milson v. Day, 3 M. & P. 333.

6 Id.

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