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Witness

bound to attend.

Warrant may be issued.

Refusal to testify.

Commitment.

2. Delivering to such witness a copy of the summons or a ticket containing its substance: and,

3. Paying or tendering to such witness the fees allowed by law, for travelling to and returning from the place where he is required to attend, and the fee allowed for one day's attend

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Every person, thus summoned, is bound to attend according to the command of the summons; and for every failure so to attend, without a reasonable excuse, is responsible to the aggrieved party for the loss and hindrance, and all damages sustained thereby, and fifty dollars in addition thereto."

In addition to this remedy, the officer issuing the summons is authorised, upon due proof of the service of the summons and of the failure of the witness, to issue his warrant to the sheriff of the county, to apprehend such witness, and to bring him before such officer, to be examined; or before any persons named in a commission issued by a court of any other state or country, as the case may be.72 It is further provided, that "if any witness attending before any judge, officer, or commissioners, pursuant to a summons, or brought before them or either of them, shall, without reasonable cause, refuse to be examined, or to answer any legal and pertinent question, or to subscribe his deposition after the same has been reduced to writing, the officer issuing such summons shall, by warrant, commit such witness to the common jail of the county, in which he resides, there to remain until he submits to be examined, or to answer, or to subscribe his deposition, as the case may be, or until he be discharged according to law.""

Every warrant, issued in pursuance of these provisions, must be directed to the sheriff of the county in which the witness may be, and must be executed by him in the same manner as process issued by courts of record; and if a warrant of

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commitment, must specify particularly the cause of such commitment; if the commitment be for refusing to answer any question, the question must be stated in the warrant.74

These provisions do not apply to subpoenas issued by justices of the peace, nor to witnesses summoned to attend courts held by justices of the peace, nor to any other case where special provision is made by law for compelling the attendance of witnesses.75

prison.

Habeas corpus ad testificandum.] Where a witness is de- Witness in tained in prison, a habeas corpus ad testificandum is necessary, to bring him before the court to testify. It is provided by statute, that " every court of record shall have power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court any prisoner, who may be detained in any jail or prison within this state, for any cause except a sentence for a felony, to be examined as a witness in such suit or proceeding, in behalf of the party making the application.76 The writ may likewise be Chancellor, granted by the chancellor, a justice of the supreme court, and grant writ. by any officer authorised to perform the duties of a justice of the supreme court, upon application of a party to any suit or proceeding, pending in a court of record, or pending before any officer or body who may be authorised to examine witnesses in any suit or proceeding."

&c. may

Every application for this writ must be verified by affida- Affidavit. vit, and must state the title and nature of the suit or proceeding in regard to which the testimony of the prisoner is desired, and that the testimony of such prisoner is material and neces

74

4 Ib. s. 48. 49. p. 401. 402.

75 Ib. s. 50.

77 Ib. s. 3. The writ may likewise be granted in certain cases, on ap

76 R. St. P. 3. Ch. 9. T. 1. s. 1. plication of a party to a suit before

Vol. 2. p. 559.

a justice of the peace. Ib. s. 4.

Witness

must be re manded.

Sheriff bound to

soner.

sary to the party applying, on the trial or hearing of such suit or proceeding, as he is advised by counsel and verily believes. But where the application is made by the attorneygeneral or the district-attorney, it is not necessary to swear to advice or counsel.78

Whenever a person, in execution on any civil process, or committed on any criminal charge, is brought up on a habeas corpus, to testify before any court or to answer for any contempt or other matter, and it is returned on the writ that the prisoner is so charged in execution or committed, as aforesaid, he must be remanded after having testified; and if any order or commitment is made against him, he must be committed to the prison from which he was taken.79

It has been decided that it is not an escape for a sheriff to bring up, on a habeas corpus ad testificandum, a prisoner in his custody on execution;80 and that the sheriff is bound to produce pri- bring up the prisoner on tender of the fees allowed by law." And it is provided by statute, that "it shall be the duty of every sheriff, coroner, constable or marshal, upon whom a writ of habeas corpus shall be served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed,82 to obey and return such writ according to the exigency thereof."83 The bond here mentioned must be in a penalty double the amount of the sum for which the prisoner may be detained, if he be detained for any specific sum of money, and if not, then in the penalty of one thousand dollars, conditioned that such person will pay the charges of carrying back such prisoner if he shall be remanded, and that such prisoner will not escape by the way, either in going to or

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fees.

returning from the place to which he is to be taken.84 The Sheriff's fees allowed the sheriff, on a habeas corpus ad testificandum, are one dollar and fifty cents, and for travelling, each mile from the jail, twelve and a half cents;85 which must be computed for the distance of both going to, and returning from, the place of trial.86

87

.

If the writ do not contain the words "to testify," yet if it have words equivalent, it is sufficient; so, though it do not specify a place of return within the county, as at the office of the first judge, for this is to be intended. If the writ be valid on its face, and issued by an officer of ompetent authority, though irregularly or erroneously allowed, the sheriff is bound to obey it, and will be protected in his obedience to it ; and the alteration of the writ, after it is executed, without the knowledge or privity of the sheriff, will not deprive him of the right to give it in evidence for his justification, though such alteration be made by the deputy who executed it.88

84 Ib. s. 78. For some provisions relative to writs of habeas corpus in general, as the form of the writ, service, &c. See article third, R. St. of the chapter and title before cited.

38.

85 R. St. P. 3. Ch. 10. T. 3. s.
Vol. 2. p. 646.

86

7 Cowen. Rep. 424. 27 5 Cowen. Rep. 176. 835 Cowen. Rep. 176.

Requisites of

writ.

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CHAPTER VIII.

OF THE TRIAL AND ITS INCIDENTS.

General

routine.

Calendar.

At the day appointed for the circuit, upon the judge's taking his seat, the crier opens the court by proclamation, to all persons who have any business, to appear and be heard. After going through such preliminary matters as may be necessary, such as calling over the jury list, fining the absent jurors, and discharging those who are by law exempt, or who present satisfactory excuses, the judge takes up the calendar.

The calendar is made out by the clerk, and contains a list of the causes noticed for trial, according to the dates of their issues; and it seems that where there is more than one issue, the cause should be placed there, according to the date of the oldest issue; but the supreme court will not interfere with the practice of the circuit judge, as to the correction of his calendar.' Actions against corporations, commenced by summons, in the manner we have before mentioned, which are founded upon a note or other evidence of debt, for the absolute payment of money, on demand, or at any particular time, have a preference by statute to all other causes.s

The causes are called according to the order in which they are arranged on the calendar; and if a cause be improperly placed, either party may move the court to put it in its proper place. If the plaintiff's counsel be ready, he answers when the cause is called; otherwise the cause loses it prece

1 6 Cowen. Rep. 32.

3

Ante, p. 355.

3 R St. P. 3. Ch. 8. T. 4. s. 5 to 11. Vol. 2. p. 458. 459.

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