Mode of compelling the attendance of witnesses-by recognizance. There are two modes of compelling the attendance of witnesses; first, by recognizance; second, by subpoena. The power to bind witnesses by recognizance to appear and give evidence was originally given by the 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10. It was further extended by the 7 Geo. 4, c. 64, which repealed the prior statutes; and is now regulated by the 11 & 12 Vict. c. 42, s. 20, by which power is given in all cases, whether of felony or misdemeanor, to bind by recognizance the prosecutor and witnesses to appear and give evidence at the next court of oyer and terminer and general gaol delivery, or the next court of quarter sessions, as the case may be. The same power is exercised by coroners under the 7 Geo. 4, c. 64, s. 4, in cases of murder and manslaughter. So, also, witnesses for the defence may now be bound over to appear. See 30 & 31 Vict. c. 35, s. 3, incorporated with the 11 & 12 Vict. c. 42; see section 4, post, Appendix of Statutes. When a trial is postponed, the presiding judge, exercising the ordinary functions of a justice of the peace, usually binds over the prosecutor and witnesses to appear and give evidence at the next assizes or the next quarter sessions, as the case may be. If a witness on his examination before a magistrate refuses to be bound over he may, by the express provisions of the 11 & 12 Vict. c. 42, s. 20, be committed. It seems doubtful whether, in any case, a witness can be compelled to find sureties for his or her appearance. Per Graham, B., Bodmin Summ. Ass. 1827; 1 Stark. Ev. 83, 3rd ed.; per Lord Denman, Evans v. Rees, 12 A. & E. 55, 40 E. C. L. It was once thought that an infant was bound to find sureties in such a case and could be committed in default, on the ground that his own recognizance would be invalid; but it has been since held that infancy is no ground for discharging a forfeited recognizance to appear at the assizes and prosecute for felony. Ex parte Williams, 13 Price, 670. It is still the *practice generally not to take the recognizance of a married *108] woman, but that of her husband, or some person willing to be bound for her if any such there be; but if no such person be at hand, she herself is frequently bound; and there seems no reason why her recognizance should not be binding, especially since the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), where she has separate property. Formerly it was the practice to estreat indiscriminately all recognizances for the appearance of the prosecutor or witnesses when the witnesses did not appear; but now, by the express provisions of the 7 Geo. 4, c. 64, s. 31, it is enacted, that "in every case where any person bound by recognizance for his or her appearance, or for whose appearance any other person shall be so bound to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, or to abide an order in bastardy, shall therein make default, the officer of the court by whom the estreats are made out shall, and is hereby required to prepare a list in writing specifying the name of every person so making default, and the nature of the offence in respect of which every such person or his or her surety was so bound, together with the residence, trade, profession, or calling of every such person and surety, and shall in such list distinguish the principal from the sureties, and shall state the cause, if known, why each such person has not appeared; and whether by reason of the non-appearance of such person the ends of justice have been defeated or delayed; and every such officer shall, and is hereby required, before any such recognizance shall be estreated, to lay such list, if at a court of oyer and terminer and gaol delivery in any county besides Middlesex and London, or at a court of great sessions, or at any one of the superior courts of the counties palatine, before one of the justices of those courts respectively; if at a court wherein a recorder or other corporate officer is the judge or one of the judges, before such recorder or other corporate officer; and if at a session of the peace, before the chairman or two other justices of the peace who shall have attended such court, who are respectively authorized and required to examine such list, and to make such order touching the estreating or putting in process of any such recognizance as shall appear to them respectively to be just; and it shall not be lawful for the officer of any court to estreat or put in such process any nizance without the written order of the justice, recorder, corporate officer, chairman, or justices of the peace before whom respectively such list shall have been laid." recog Mode of compelling attendance of witnesses-by subpœna for prosecution. Where a witness is not bound by recognizance to appear he may be compelled to do so by subpana. This process is issued by the clerk of the peace at sessions, or by the clerk of the assize at the assizes, or it may be issued from the crown office. And the last is the most effectual mode, for not only, as will be seen presently, are the proceedings upon it for contempt more speedy and effective, but The defendant is entitled to a subpoena before the grand jury have found the bill. 1 Burr's Trial, 178; United States v. Moore, Wallace, 23. S. On the powers of the U. S. District Attorney in summoning witnesses, see U. S. v. Durling, 4 Biss. 509. Mode of compelling the attendance of witnesses-by recognizance. There are two modes of compelling the attendance of witnesses; first, by recognizance; second, by subpoena. The power to bind witnesses by recognizance to appear and give evidence was originally given by the 1 & 2 P. & M. c. 13, and 2 & 3 P. & M. c. 10. It was further extended by the 7 Geo. 4, c. 64, which repealed the prior statutes; and is now regulated by the 11 & 12 Vict. c. 42, s. 20, by which power is given in all cases, whether of felony or misdemeanor, to bind by recognizance the prosecutor and witnesses to appear and give evidence at the next court of oyer and terminer and general gaol delivery, or the next court of quarter sessions, as the case may be. The same power is exercised by coroners under the 7 Geo. 4, c. 64, s. 4, in cases of murder and manslaughter. So, also, witnesses for the defence may now be bound over to appear. See 30 & 31 Vict. c. 35, s. 3, incorporated with the 11 & 12 Vict. c. 42; see section 4, post, Appendix of Statutes. When a trial is postponed, the presiding judge, exercising the ordinary functions of a justice of the peace, usually binds over the prosecutor and witnesses to appear and give evidence at the next assizes or the next quarter sessions, as the case may be. If a witness on his examination before a magistrate refuses to be bound over he may, by the express provisions of the 11 & 12 Vict. c. 42, s. 20, be committed. It seems doubtful whether, in any case, a witness can be compelled to find sureties for his or her appearance. Per Graham, B., Bodmin Summ. Ass. 1827; 1 Stark. Ev. 83, 3rd ed.; per Lord Denman, Evans v. Rees, 12 A. & E. 55, 40 E. C. L. It was once thought that an infant was bound to find sureties in such a case and could be committed in default, on the ground that his own recognizance would be invalid; but it has been since held that infancy is no ground for discharging a forfeited recognizance to appear at the assizes and prosecute for felony. Ex parte Williams, 13 Price, 670. It is still the *108] *practice generally not to take the recognizance of a married woman, but that of her husband, or some person willing to be bound for her if any such there be; but if no such person be at hand, she herself is frequently bound; and there seems no reason why her recognizance should not be binding, especially since the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75), where she has separate property. Formerly it was the practice to estreat indiscriminately all recognizances for the appearance of the prosecutor or witnesses when the witnesses did not appear; but now, by the express provisions of the 7 Geo. 4, c. 64, s. 31, it is enacted, that "in every case where any person bound by recognizance for his or her appearance, or for whose appearance any other person shall be so bound to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, or to abide an order in bastardy, shall therein make default, the officer of the court by whom the estreats are made out shall, and is hereby required to prepare a list in writing specifying the name of every person so making default, and the nature of the offence in respect of which every such person or his or her surety was so bound, together with the residence, trade, profession, or calling of every such person and surety, and shall in such list distinguish the principal from the sureties, and shall state the cause, if known, why each such person has not appeared; and whether by reason of the non-appearance of such person the ends of justice have been defeated or delayed; and every such officer shall, and is hereby required, before any such recognizance shall be estreated, to lay such list, if at a court of oyer and terminer and gaol delivery in any county besides Middlesex and London, or at a court of great sessions, or at any one of the superior courts of the counties palatine, before one of the justices of those courts respectively; if at a court wherein a recorder or other corporate officer is the judge or one of the judges, before such recorder or other corporate officer; and if at a session of the peace, before the chairman or two other justices of the peace who shall have attended such court, who are respectively authorized and required to examine such list, and to make such order touching the estreating or putting in process of any such recognizance as shall appear to them respectively to be just; and it shall not be lawful for the officer of any court to estreat or put in process any such recognizance without the written order of the justice, recorder, corporate officer, chairman, or justices of the peace before whom respectively such list shall have been laid.” Mode of compelling attendance of witnesses-by subpoena for prosecution. Where a witness is not bound by recognizance to appear he may be compelled to do so by subpoena. This process is issued by the clerk of the peace at sessions, or by the clerk of the assize at the assizes, or it may be issued from the crown office. And the last is the most effectual mode, for not only, as will be seen presently, are the proceedings upon it for contempt more speedy and effective, but The defendant is entitled to a subpoena before the grand jury have found the bill. 1 Burr's Trial, 178; United States v. Moore, Wallace, 23, S. On the powers of the U. S. District Attorney in summoning witnesses, see U. S. v. Durling, 4 Biss. 509. favor of the prisoner for an inspection of them. R. v. Collucci, 3 F. & F. 103. Mode of compelling the attendance of witnesses-habeas corpus ad testificandum. Where a person required as a witness is in custody, or under the duress of some third person, as a sailor on board of a ship of war, so as to prevent his attendance, the mode of compelling is to issue a habeas corpus ad testificandum. For this purpose application must be made to the court before which the prisoner is to be tried, or to a judge, upon an affidavit, stating that the party is a material witness, and willing to attend. R. v. Roddam, Cowp. 672; 2 Phill. Ev. 429, 10th ed.; 1 Stark. Ev. 81, 3rd ed. The court will then, if they think fit, make a rule, or the judge will grant his fiat for a writ of habeas corpus; R. v. Burbage, 3 Burr. 1440; 2 Phill. Ev. 429, 10th ed.; which is then sued out, signed, and sealed. Tidd's Prac. 809. Formerly, it was doubted whether persons in custody could be brought up as witnesses by writ of habeas corpus, to give evidence before any other courts than those at Westminster; but by the 43 Geo. 3, c. 140, a judge of the King's Bench or Common Pleas, or a baron of the Exchequer, may, at his discretion, award a writ of habeas corpus ad testificandum, for bringing any prisoner detained in any gaol in England before a court martial, or before commissioners of bankruptcy, commissioners for auditing the public accounts, *or other commissioners, acting by virtue of any royal com *111] mission or warrant. By the 44 Geo. 3, c. 102, U. K., the Judges of the King's Bench, or Common Pleas, or Barons of the Exchequer in England or Ireland, or the justices of oyer and terminer, or gaol delivery (being such judge or baron), have power to award writs of habeas corpus, for bringing prisoners, detained in gaol, before such courts, or any sitting at nisi prius, or before any court of record in the said parts of the said United Kingdom, to be there examined as witnesses, and to testify the truth before such courts, or before any grand, petit, or other jury, in any cause or matter, civil or criminal, which shall be depending, or to be inquired into, or determined, in any of the said courts. The application under this statute ought to be to a single judge. R. v. Gordon, 2 M. & S. 582. The writ should be left with the sheriff or other officer, who will then be bound to bring up the body, on being paid his reasonable expenses. 2 Phill. Ev. 430, 10th ed.; 1 Stark. Ev. 82, 3rd ed. If the witness be a prisoner of war, he cannot be brought up without an order from the Secretary of State. Furly v. Newnham, 2 Doug. 419. A witness may be brought up on habeas corpus from a lunatic asylum, on an affidavit that he is fit for examination, and not dangerous. Fennel v. Tait, 5 Tyrw. 218; 1 Cr. M. & R. 584. Mode of compelling the attendance of a witness-by warrant from the Secretary of State or judge. It is enacted by 16 & 17 |