have never been required, and no inconvenience caused, the party may recover back the expenses already paid in prospect of attendance.1

3

In criminal cases, owing to their supposed greater urgency and importance, this right of the witness to an advance of the expenses was never recognised as a preliminary to his obeying the subpoena, and he cannot refuse to attend on the ground of such payment not being made.2 But if poverty or the want of means to defray travelling expenses were satisfactorily established, no court could with reason punish him for not attending; and hence when the witness is summoned from a great distance, as, for example, Scotland, his expenses must be tendered in advance. Owing to the lamentable want of method in everything relating to criminal prosecutions in this country, no provision was made for paying witnesses' expenses in such cases till the year 1732; after which date it began to be usual to provide for these in particular cases, the loss of time and money being felt grievously by all who assisted in this capacity. And since then enactments authorising the payment of witnesses have accumulated. These expenses, though still not claimable beforehand or in advance, may nevertheless afterwards be reimbursed, along with the prosecutor's expenses, in all felonies and all the more serious misdemeanours.5 And the expenses of attending the preliminary examination before magistrates are also now allowed, as well as the costs of attending justices when they exercise their summary jurisdiction in some indictable cases.7 And when a witness is summoned in cases where expenses are allowable, he is not deprived of them merely by some mistake; and he is entitled to any incidental costs which arise out of the performance of his duty. But as showing the want of method and system in this branch of the law, these rules as to costs of witnesses apply,

1 Martin v Andrews, 7 E. & B. 1. 957; R. v Cooke, 1 C. & P. 322. 4 25 Geo. II. c. 36.

5 7 Geo. IV. c. 64; 14 & 15 Vic. c. 55; c. 97, § 214; c. 98, § 54; c. 99, § 42 ; c. c. 35; 33 & 34 Vic. c. 23.

6 29 & 30 Vic. c. 52. c. 118; 10 & 11 Vic. c. 82. R. v Robey, 5 C. & P. 552.

8

2 Pell v Daubeny, 5 Exch. 3 45 Geo. III. c. 92, § 4.

24 & 25 Vic. c. 96, § 121 ; 100, § 67; 30 & 31 Vic.

7 18 & 19 Vic. c. 126; 19 & 20 Vic. 8 Re Mallison, 1 Lew. C. C. 132, 133;

not to all indictable offences, but only to the greater and more serious portion of them; and hence in those cases, which are not so included, the witness may be bound to attend at his own expense, as, for example, in prosecutions for keeping disorderly houses, for nuisance, libel, forcible entry, night-poaching, and some others. Nor are expenses claimable in any cases where the indictment is removed by certiorari into the Queen's Bench Division.1 If the witness is summoned on the part of the accused, the expenses in every case of felony or misdemeanour have, since 1867, been allowed in like manner, subject to the qualification that the court shall think the evidence to be of consequence to the accused.2 These expenses were at first payable out of the county and borough rate, but are now ultimately paid wholly by the consolidated fund, with some trifling exceptions.

Remedy for witness not attending in Supreme Court.—The remedies against a witness, who neglects to attend a trial or court after being duly summoned, are twofold :—(1) he may be committed to prison for contempt of court; (2) he may be sued for damages in a court of law.

Commitment of witness for disobeying subpona.-One of the punishments of a witness, who after being duly served with process refuses to attend, is by imprisoning him under an attachment. For this purpose it is necessary to apply to the court promptly, and to satisfactorily show that the witness wilfully refused to answer, or was absent, or if the trial has not taken place, that he had not been ready to attend when required. This process has nothing to do with reimbursing the party any damages caused by the witness's absence, but is a mode of vindicating the dignity of the court, and making memorable any instance of slighting it; and hence some conduct on the part of the witness strongly implying disrespect must be shown in order so to punish him.3 Thus it is required by those applying for this process to satisfy the court that they had done all that was required to be done. It is true that if it appears from the facts before the court, that the witness thus required was

1 R. v Kelsey, 1 Dowl. 481; R. v Richards, 8 B. & C. 420; R. v Jeyes, 3 A. & E. 419; R. v Exeter, 5 M. & R. 167; 8 A. & E. 590. 2 30 & 31 Vic. c. 35, §§ 3, 4, 5; 32 & 33 Vic. c. 89, § 10. 3 Scholes v Hilton, 10 M. & W. 15; Horne v Smith, 6 Taunt. 10; Netherwood Wilkinson, 17 C. B. 226.

unable to give any material evidence, and he had been summoned vexatiously, this summary process will not be issued against him. Yet it is dangerous for a witness to decide this point for himself, and such a defence will not usually be listened to.2 Nor will it be deemed any excuse that the witness could not obtain permission from his master, for the process of the court overrides all the exigencies of private business, and the master's interests must give way to the public interest.3 But however flagrant may be the apparent contempt of court committed by a witness who refuses to attend or to answer, the process of imprisoning him for contempt is never issued without first giving him an opportunity of showing cause and urging, if he can, some satisfactory excuse. And if the court is not satisfied after hearing the witness, it may either commit him to prison, or fine him a sum of money. While a witness who refuses to attend may be thus punished, it is obviously much the same ground of complaint, that when attending he refuses to swear. And Lord President Keble fined a witness 500l. and imprisonment during pleasure, for so refusing. And while an almost unlimited power is placed in the hands of litigants to consider who shall be summoned as witnesses on their behalf (for no leave of court is ever required to control their discretion), it is necessary to make some distinctions, for otherwise persons may be harassed in their business and avocations on frivolous pretexts. It is on this ground that where high officers of state are summoned, and are sought to be fined or punished for non-attendance, the question, how far their evidence was reasonably necessary, comes to be material, because to allow them to be called away unnecessarily is an interference with the public business.

6

Action against witness for not attending.-Another remedy against a witness, who, when summoned, refuses to attend the High Court, is an action of dainages. An action of debt in such circumstances was expressly authorised by statute

1 Dicas v Lawson, 1 Cr. M. & R. 934; R. v Russell, 7 Dowl. 693. 2 Chapman v Davis, 3 M. & Gr. 609; Scholes v Hilton, 10 M. & W. 16. 3 Goff v Mills, 2 D. & L. 23. 4 Rule Pr. 1853, § 168. 55 St. Tr. 134. A limit has not been imposed by statute to the length of imprisonment on this ground.

6 Dicas v Lawson, 1 C. M. & Ř. 934; R. v Russell, 7 Dowl. 693.

of Elizabeth, in which case the court had power to inflict a penalty of ten pounds, as well as award damages. But it proved to be so unusual a proceeding for a court to award damages, that this form of action has seldom been adopted, especially as the proceeding for attachment is usually available.1 And yet when a court fines a party it exercises precisely the same kind of calculation as to the amount of mischief and relative loss. This action against witnesses for damages may be sustained, though the cause was not in fact tried, and therefore not lost, and without proving that the cause was well founded. All that is necessary to be proved is, that the witness was material, and that some damage was occasioned by his not attending at the time of hearing.2

Summoning witnesses in Parliament.-Where a witness is required before the House of Commons, the order is signed by the clerk and served or sent by post, and if disobeyed, the Speaker will issue his warrant, directing the Serjeantat-arms to apprehend the witness, and, after being brought to the bar, he is usually committed to Newgate.3 And the warrant of the House to commit need not state the particular reason for the committal on the face of it. So the Speaker's warrant, addressed to a gaoler to bring up a prisoner, must also be obeyed; 5 or the High Court will send a habeas corpus to the gaoler for the purpose.

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6

And in like manner an order of the House of Lords, signed by the assistant clerk of Parliament, must be obeyed. The Black Rod will be sent to apprehend any disobedient witness, and if he cannot find him, the House may address the crown to issue a proclamation, offering a reward for the witness's apprehension. In public matters the witness's expenses in both Houses are allowed by the Treasury; but in private matters the party requiring the witness's attendance is answerable for the expenses.

Witnesses before inferior courts and statutory judicial officers. The processes, by which inferior courts, and officers and commissioners exercising judicial powers,

2 Mullett v

1 5 Eliz. c. 9, § 6; Pearson v Isles, 2 Doug. 556. Hunt, 1 Cr. & M. 752; Yeatman v Dempsey, 7 C. B., N. S. 628; 9 C. B., N. S. 881. 3 Gossett v Howard, 10 Q. B. 359. 4 Ibid. 5 90 Com. J. 533. 6 Re Price, 4 East, 587; Re Pilgrim, 3 A. & E. 485. 7 66 Lords J. 400; 21 & 22 Vic. c. 78, § 2. 8 66 Lords J. 538, 400.

9 Ibid. 441.

enforce the attendance of witnesses, are modelled on the process of subpoena in the High Court. But as in all these cases there is no inherent power to call on one person to testify for the benefit of another, it requires statutory authority, either expressly or by implication, to be conferred for the purpose. And the rules as to punishment for disobedience and payment of expenses are similar; though, as regards fines, the power of the tribunal is limited to a small fixed sum, or the punishment is effected by resorting to the High Court for auxiliary powers. In the county courts, in which much of the inferior kind of litigation in civil matters is carried on, express power to summon and fine for disobedience the witnesses necessary to assist the administration of justice, was conferred by the statutes.1

Witnesses summoned by justices of the peace.-A vast variety of criminal and quasi-criminal business being done before justices of the peace, their compulsory powers over witnesses require particular notice, for the smaller the subject-matter for adjudication, the more irksome is the compulsion of attendance. The jurisdiction, which justices of the peace exercise, is twofold. They have the jurisdiction to entertain all charges for indictable offences, and to hear the evidence with a view to decide whether such evidence is prima facie sufficient to authorise them to commit the accused for trial. Secondly, they have jurisdiction to convict parties, and make orders on them for payment of money, in a great variety of subjects. This is usually called the exercise of their summary jurisdiction, that is to say, it is the power to hear charges against persons, and to convict, and in certain events commit these to prison, the whole proceeding commencing and ending in petty sessions, and no other higher court requiring to confirm their decision.

Justices of peace enforcing witness's attendance in indictable cases. When a justice sits out of sessions, as it is called, to hear charges for indictable offences, he may in all cases, on the oath of a credible person, issue a summons under his hand and seal to a witness, who is not likely to attend voluntarily. If this summons is

1 9 & 10 Vic. c. 95, §§ 85, 86; 19 & 20 Vic. c. 108. The fine for disobedience is ten pounds.