Act of February 23, 1819-January 1, 1820. R. C. ch. 154. 4. § 9. In any prosocution under this act, [see tit. CRIMES AND PUNISHMENTS, No. 45, 49, 50, 51, 52, 53, 54,] or for any forging or counterfeiting whatsoever, the testimony of no person shall be rejected on account of his interest in the subject, (b) unless he be a party defendant to the prosecution. Rev. 1819; 9 Geo. 4, c. 32, § 2. Act of January 10, 1818-January 1, 1820. R. C. ch. 131. 5. § 4. If any person summoned as a witness to attend any court within this commonwealth, or to appear before commissioners, referees or other persons appointed by or under the authority of such court, to take or receive his deposition, or testimony, or upon any order of survey, shall fail to attend accordingly, not having a reasonable excuse(c) for such failure, such person shall be fined by the court from whence the subpæna issued, sixteen dollars, to the use of the party for whom such witness was summoned; and the witness so failing shall farther be liable to the action of the party for all damages sustained by the non-attendance of such witness: Provided, That the witness on whom such fine shall be imposed, shall either be present in court at the time, or shall have been duly served with the rule of the court, returnable to some certain day, requiring him to shew cause why such fine should not be imposed upon him, and shall have failed to shew such cause; but if sufficient cause of his or her inability to attend be shewn, then no fine or action shall be incurred by such failure. (a) Feb. 1644-5, act 13, 1 Stat. Larg. 295; Oct. 1660-1, act 16, was a settled point at common law, that a slave could not be a witness; among other reasons, that it would be difficult to administer an oath to a slave, for want of knowing his religion. As to the defect of religious principle in general, see Curtiss v. Strong, 4 Day's R. 51, and Jackson v. Gridley, 18 Johns. R. 98106; Butts v. Swartwood, 2 Cowen, 431, and the opinions of Walworth and Williams, C. J. 433, 573; and Atwood v. Walton, 7 Connecticut Rep. 66, by Day; Wakefield v. Ross, 5 Mason, 16. (b) The rejection of the testimony of the party by whom the instrument purports to be made, is an anomaly in the law of evidence as now understood in England. "On what principle it was so settled, I cannot pretend to say; but having been so settled, it can only be remedied now by the legislature"-by Ld. Ellenborough, C. J. in The King v. Boston, 4 East, 582. In some of the U. States this anomaly has been remedied by the judiciary, who did not find it "too much for judges sitting on trials to break in upon" a rule, having no principle in the law to support it. See Resp. v. Keating, 1 Dall. 110; Resp. v. Ross, 2 Dall. 239, 2 Yeates, 1, S. C. more fully reported; Com. v. Snell, 3 Mass. R. 82; Com. v. Waite, 5 Mass. R. 261. This anomaly is remedied in England by act of 9 Geo. 4, c. 32, § 2. See The People v. Dean, 6 Cowen, 27; The King v. Wait, 1 Bing. 121. The principal obligor in a bond cannot be a witness for his surety jointly bound with him,-because the latter would have recourse against the former for the whole recovery against him, including all subsequent costs. Jones v. Raine, 4 Rand. 387. An interested witness, who has been examined on a former trial without being released, may be rendered competent on a subsequent trial by a release; on the authority of Jones v. Raine, 4 Rand. 387. (c) By a special provision in the stat. of Eliz. 'tis the duty of the person serving the subpana, to tender to the witness according to his countenance or calling, such reasonable sum of money for his costs and charges, &c. at the time of serving the subpana. This provision has been liberally expounded in favour of witnesses. See Chapman v. Paynton, note (a) 13 East, 16; Bowles v. Johnson, 1 Bl. R. 36, and Fuller v. Prentice, 1 Hen. Bl. 49; Battye v. Gresley, et al. 8 East, 319. (a) Using means to prevent, and preventing a witness from attending court, who had been duly summoned, is a contempt of court, punishable by information. Com. v. Feely, genl. ct. June T. 1815,2 Virg. Cas. 1; Hawk. B. 1, c. 21, § 15; Dick. Ses. Guide, 318, ed. 1829, Lond. And a defendant who keeps out of the way, a witness material to the plaintiff, and thereby impedes the service of a subpoena, is liable to an attachment.Clements v. Williams, 2 Scott, 814. See act 16 April, 1831, Ses. Acts 1830-31, c. 11, § 25, Sup. R. C. p. 144, subjecting persons offending to prosecution by indictment, information or presentment, and imposing penalty of fine and imprisonment, or both, at the discretion of the court, for corruptly influencing or intimidating witnesses. Act of January 10, 1818-January 1, 1820. R. C. ch. 131. 2 Stat. Larg. 23; March 1661-2, act 28, 2 Stat. Larg. 67; act 29, Ib.; Sep. 1696, act 6, 3 Stat. Larg. 144; 5 Eliz. c. 9, § 12; 1789, c. 23, 13 Stat. Larg. 32; 1792, c. 141, R. C.; Jan. 12, 1813, c. 20. 6. § 5. If any person, so summoned and attending in any of the causes above mentioned, shall refuse to give evidence upon oath or affirmation, (as the case may be,) [see tit. OATHS, No. 5,] to the best of his or her knowledge, every person so refusing shall be committed to prison by the court, commissioners, referees, or other persons authorized to take or receive his or her deposition or testimony, there to remain without bail or mainprize, until he or she shall give such evidence.(1) Dec. 1662, act 7, 2 Stat. Larg. 167; Oct. 1705, c. 19, § 30, 3 Stat. Larg. 298; 1777, c. 17, 9 Stat. Larg. 411; 1792, c. 141, R. C. 7. § 6. It shall not be lawful in any criminal prosecution whatever, (other than a prosecution for perjury,) or in any action founded upon a penal statute, (d) to give in evidence, against the defendant, any confession or state A subpana issued by order of cir. sup. ct. to summon D. and L. to appear and give evidence before the grand jury, then in session; D. and L. knowingly and wilfully kept out of the way of the officer, with design to prevent and elude the service of the subpana until the grand jury were discharged: a rule was made against D. and L. to shew cause why they should not be punished for a contempt. They appeared, and moved the court to quash the rule; motion sustained on the ground that, under the statutory provision, defining contempts, they were not liable to punishment by summary proceedings, but that they may be punished by information or indictment. Deskins & Lockhart's case, genl. ct. July T. 1834, 4 Leigh, 685. (1) See act Jan. 18, 1825, c. 34, Ses. Acts, 1824-5, p. 29; Sup. R. C. c. 202, p. 263, providing, 1. "That commissioners or other persons appointed by the authority of foreign courts to take depositions of witnesses residing in this state, shall have and exercise the same powers to compel the attendance of said witnesses in such cases, as commissioners appointed under the authority of the courts of this commonwealth; and said witnesses shall be liable to the same fines and penalties for failure to appear or give evidence as aforesaid, or for giving false testimony, and shall be entitled to the same compensation as witnesses summoned under the authority of the courts of this commonwealth: Provided, That said commissioners shall in all cases be citizens of this commonwealth: And provided also, That no witness shall be compelled to attend before any commissioners or other person appointed to take depositions by virtue of any commission issued from any court out of this commonwealth; unless the party or parties who may require his or her attendance, shall have paid or tendered to the witness, a reasonable time before he is required to attend, the amount of one day's attendance at least, and all mileage and ferriage to which the said witness may be entitled for going to and returning from the place of taking said depositions. Every fine for failure to attend and give evidence, in obedience to the summons which may be issued by such commissioners or other persons, shall be recoverable upon motion, on reasonable notice in the superior or inferior court of any county or corporation, where the witness incurring such fine may reside; and such court shall have full power, upon the application of the party interested, to compel such delinquent witness, by process of attachment or other proper process, to attend and give his evidence before such commissioners or other persons, at such time and place as the court shall designate. 2. "Nothing in this act contained shall be so construed as to authorize any commissioner or other person appointed to take depositions, to compel any witness to go beyond the limit of the county in which he resides, for the purpose of giving his deposition." See, also, Sup. R. C. c. 109, § 81, p. 165. (d) The general rule is, that a witness is not bound to answer any question which has a tendency to expose him to penalties, or to a criminal charge. In Ld. Geo. Gordon's case, 2 Doug. 593, a witness was asked, if he was a Roman Catholic; the court ruled that he was not bound to answer; because if he were to say he was, his declaration would be evidence against him, and might subject him to penalties. See J. Friend's case, 4 Stat. Larg. 259, 2 Stark. 366, acc'd. If this were the only reason, I presume the rule is changed by this section;-but, it is laid down "that at length, after much discussion it has been established, that a witness is not obliged to admit or answer to any matter which tends to throw a shade over his moral character, although it involves no offence for which he could be indicted." 1 Chitty's Crim. Law, [620] note (w) for autho. particularly Cooke's case, 4 State Trials, 748, Treby, Č. J.; and Act of January 10, 1818-January 1, 1820. R. C. ch. 131. ment, which he or she may have made in the course of his or her legal examination as a witness before any competent tribunal. Feb. 10, 1812, c. 28, c. 108, ed. 1812. 8. § 7. Witnesses shall be privileged from arrests in all cases, except treason, felony and breaches of the peace, during their attendance at any court, or other place where their attendance shall, by subpæna first duly executed by a sworn officer, or by some indifferent person who shall have made oath to the due execution thereof, have been required; (e) and in coming to, and returning from thence, allowing one day for every twenty miles from their places of abode: Provided always, That no person whatsoever, attending any of the courts in this commonwealth, or upon any reference or survey, by order of any such court in virtue of any subpana, shall be privileged from an arrest, by original or other process, unless such person shall be actually a witness in the matter in such subpæna expressed. Sep. 1664, act 9, 2 Stat. Larg. 213; Nov. 1682, act 10, Ib. 503; Oct. 1705, c. 19, § 32, 3 Stat. Larg. 299; 1748; 1777, 9 Stat. Larg. 414; 1786, c. 14, 12 Stat. Larg. 267; 1792, c. 141, R. C. see The People v. Herrick, 13 Johns. R. 82, where it was held, that a witness is not bound to answer any question which will render him infamous or disgraced. But in the case of Cundell v. Pratt, 3 Car. & Payne, (note) 238, Best, C. J., said, "I, for one, till I hear it decided by the house of lords, shall not go so far. I shall only prevent your asking such questions as may subject witnesses to a prosecution for a crime; but not such questions as merely tend to degrade them in their character. See The People v. Mather, 4 Wend. 229-250; Billinger v. The People, 8 Wend. 595. A witness is not only not bound to answer a question, the answer to which would criminate him, but he is not bound to answer any question, the answer to which would tend to criminate him.. Rex v. Slaney, 5 Car. & Pay. 213; Cor. Ld. Tenterden, C. J. A question to a witness, which the law will not permit him to answer,-as if he be asked to state the contents of a record; or to an attorney, to disclose the secrets of his client, &c.-is improper; and the court will not permit it to be put. But if the question be such, as if merely answered in one way, would disgrace or criminate the witness, the question is proper; because it is the privilege of the witness to refuse to answer it, and not the law which forbids him to do so, as in the former case. But, being a privilege merely, he may waive it and give the answer. U. States v. Craig, 4 Wash. C. C. Rep. 729, 732. If a witness declines to answer a question, no inference of the truth of the fact inquired into, should be drawn from that circumstance. If a demurrer to the question were to be taken as an admission of the fact inquired into, there would be an end of the protection of a witness. Rose v. Blackemore, 1 Ry. & Mo. 382, Cor. C. J. Abbott; and see Lloyd v. Passingham, 16 Ves. 64; The King v. Watson, 2 Starkie's N. P. C. 758; Tompkins v. Ashby, 1 Moo. & Malk. 32, Abbott, C. J.; Millman v. Tucker, Cor. Ld. Ellenborough, Peake's Addl. Cas. 222. Can a witness be compelled to give any evidence which may subject him to a civil action or charge him with a debt? In Bain v. Hargrave, 35 Geo. 3, Ld. Kenyon, C. J., a witness cannot be compelled to charge himself civilly, any more than to make himself liable to a criminal prosecution. Peake's Ev. note (d) 201, 4th ed. During the im peachment against Ld. Melville this question was propounded to the twelve judges. Ld. Ch. Erskine, Ld. Chief Baron of Exchr., Ld. Ellenborough, C. J., Le Blanc, J., Chambre, J., Lawrence, J., Heath, J., and Baron Graham, answered in the affirmative. Mansfield, C. J., Grose, J., Rooke, J., and Baron Thompson, answered in the negative. Notwithstanding this numerical preponderance, it was deemed advisable to settle the question in the affirmative by stat. 46 Geo. 3, (1806,) c. 37. For a sketch of the judges' opinions, see 1 Hall's L. Journ. 223-232. This question was recently (1818) settled by the sup. ct. of Penn. in the affirmative. See Baird v. Cochran et al. 4 Serg. & Raw. 397, 400. See Muran v. Lamb, 7 Cowen, 174. In the matter of Kip, 1 Paige, 601; Hays v. Richardson, 1 Gill. & Johns. 366. (e) Is it essential to the protection of a witness that he appear by virtue of a subpana? See Ld. Kenyon's remarks in Arding v. Flower, 8 T. R. 536; and Ex parte M'Neil, 6 Mass. R. 264. But a witness is not privileged from arrest by his bail on his return from giving evidence. He is always supposed to be in custody of his bail, even whilst attending as a witness in court. Ex parte Lyne, 3 Starkie, 132. It is not true that the privilege of a witness depends upon the subpæna. Pr. Buller, J. in Walpole v. Alexander, 3 Doug. 45, 26 Eng. C. Law Rep. 32-3. Party, when protected. See Lightfoot v. Cameron, 2 Wm. Bl. 1113; Pitt v. Coomes, 5 Barn. & Adolp. 1078, 27 Eng. C. L. R.270. Act of January 10, 1818-January 1, 1820. R. C. ch. 131. 9. § 8. In all cases where witnesses are required to attend any court, commissioners or referees, or on any order of survey, a summons shall be issued by the clerk, at the request of either party, or of the commissioners, referees, or surveyor, interested in, or acting under the order of any such court, expressing the day and place where they are to appear, the names of the parties to the suit, and in whose behalf summoned. Any subpana, or process to require or compel the attendance of any witness, may be served or executed in the county or corporation wherein the said witness shall be found. Ibid. [Any judge (of a superior court of law) in vacation, for good cause shewn, shall have power to order a subpœna duces tecum(f) to issue, returnable to any court to be held by him, in like manner as the same could be ordered by him holding a session of the court. Jan. 27, 1810, c. 11; R. C. ed. 1819, c. 69, § 71.] See act 16 April, 1831, c. 11, § 37, Sup. R. C. c. 109, § 37, p. 150. 10. § 16. When any plaintiff or defendant, in any suit depending in any court of law within this commonwealth, shall wish to have the benefit of the testimony of any of the judges of the court of appeals, superior court of chancery, or general court, or of any other officer of government, who, on account of his official duties, cannot attend court to give testimony on the trial of such suit, the party wishing the benefit of the testimony of such judge or other officer, may, on application to the clerk of the court in which such suit is depending, obtain a commission to take the deposition of such judge or other officer, which commission the said clerk is hereby authorized to issue; and any deposition or depositions of such judge or other officer, taken before any two(1) magistrates in the county in which said witness or witnesses reside, shall be read in evidence on the trial of such suit: Provided, The adverse party have reasonable notice of the time and place of taking such deposition or depositions. Feb. 7-Mar. 1, 1814, c. 18. 11. § 15. When any witness shall be about to depart the country, or, by age, sickness, or otherwise, [Oct. 1705, c. 19, § 28, 3 Stat. Larg. 297,] shall be unable to attend the court, upon affidavit thereof, in open court, or before the clerk in his office, or on a certificate that an affidavit has been made to that effect, from any justice of the peace, the clerk of the court, in which any suit is or shall be depending, may on request of either party, award a commission for taking the deposition of such witness de bene esse, to be read as evidence at the trial, in case the witness should be unable(g) to attend; but the party (f) For the history and nature of the duces tecum clause, see Amey v. Long, 9 East, 473-486. A person producing documents under a subpana duces tecum, need not be sworn if the party by whom he is called does not wish to examine him. Perry v. Gibson, 1 Adolphus & Ellis, 48, 28 Eng. C. L. R. 32. (1) The depositions of witnesses in suits depending in any court of this commonwealth, may hereafter be taken and certified by any justice of the peace within the commonwealth, and depositions so taken and certified, shall have the like force and validity as if the same had been taken and certified by two justices of the peace. Act January 23, 1834, c. 61, p. 75. The depositions of witnesses in suits depending in any court of this commonwealth, may hereafter be taken and certified by any commissioner appointed by any circuit superior court of law and chancery within this commonwealth for the taking of depo sitions; and depositions so taken and certified, shall have the like force and validity as if the same had been taken and certified by two justices of the peace. Act February 3, 1834, c. 62, § 2, p. 75. (g) This inability must be shewn to the court before the deposition can be read. In Collins v. Lowry et al. to authorize the reading of a deposition, a witness testified, that he had shortly, previous to the term, seen a person, from the place at which the deposition was taken, who informed him, that the deponent had, not long before that, sailed for Europe, and had not returned: Held not sufficient proof of inability. 2 Wash. 75. The mere return of a subpæna, duly executed, is not sufficient. Minnis v. Echols, 2 H. & M. 31. On this subject, see Falconer v. Hanson, 1 Campb. Cas. 172. It is improper to read a deposition on account of the absence of the witness, unless the party offering it proves that he has used due diligence to find the witness, or Act of January 10, 1818-January 1, 1820. R. C. ch. 131. obtaining such commission shall give reasonable notice(h) to the other party,(i) of the time and place(j) of taking the deposition; otherwise, the same shall that he is not within the jurisdiction of the court, and the reach of its process. Tompkins & Co. v. Wiley, 6 Rand. 242. A subpana taken out and served, is not an essential part of the proof of inability, all that is required is satisfactory proof that the witness is unable to attend; therefore where plaintiff had taken the deposition of an aged and infirm witness, (about 70 years of age,) to be read de bene esse, and failed to take out a subpana, the court permitted his deposition to be read on satisfactory proof of the witness's inability to attend the trial by reason of ill health. Lynch v. Thomas, 3 Leigh, 682; see Fitzhugh v. Lee, Ambler, 65; Prichard v. Gee, 5 Madd. R. 364. (h) A notice left with the wife of a party at his dwelling-house, when it was known by the adverse party that he was out of the state, and that he was certainly expected home sufficiently soon to receive notice personally, without the loss of a trial by the postponement, was held to be unreasonable. Coleman v. Moody, 4 H. & M. 5. This question must depend on the circumstances of each case. See Mumford v. Church, 1 Johns. Cas. 148; Cazenove v. Vaughan, 1 Mau. & Selw. 4. (i) If there be several adverse parties, notice should be given to each one; otherwise, the omitted party will not be affected by the deposition so taken without notice to him. Stubbs v. Burwell, 2 H. & M. 539. An attorney at law, merely as such, is not compellable to receive this notice. If the principal be out of the state, notice should be given to his agent or attorney in fact; and if there be none such, notice must be given in the manner prescribed by law. [See post. No. 16] Cahill v. Pintony, 4 Munf. 371. But an attorney at law may consent to receive it, or he may waive it, and shall not afterwards be permitted to object the want of it. Boddicum v. Kirk, 3 Cranch, 297. (j) Notice that a deposition will be taken on the 8th August, and that if not taken in one day, the commissioners will adjourn from day to day until finished: the commissioners met on the 8th, and adjourned from day to day till the 12th, and from the 12th they adjourned to the 19th, on which day the deposition was taken. Not taken agree ably to notice. Boddicum v. Kirk, 3 Cranch, 297; and see Chaney v. Saunders, 3 Munf. 51. The notice must designate the place, as well as the time at which the depositions are to be taken. If the commissioners meet at the time and place designated, and they cannot complete the commission that day, they must adjourn to some specific day, and thence from day to day. Hunter v. Fulcher, 5 Rand. 126. A deposition, taken at the time and place, different from that mentioned in the notice, may be read as evidence, the duly authorized agent of the party having consented to such change. Marshall v. Frisbie, 1 Munf. 247. I apprehend that commissioners, by their own mere authority, can adjourn the taking of depositions to any conrenient time and place, in the event that the business cannot readily be finished on the day and at the place to which the notice applied. Roane, J. p. 251. The magistrates [or commissioners] who have taken a deposition and closed the commission, should nevertheless open it within the hours appointed by the original notice, on the application of any party who was not present when it was taken, and wishes to cross-examine the deponent. Jeter v. Taliaferro et al. 4 Munf. 80. Commissioners are the officers of the court; the execution of the commission is the act of the court carried on by its ministers. Ld. Eldon, Ch. in Cooth v. Jackson, 6 Ves. jun. 30. 'Tis a great mistake to call the commissioner, appointed by the defendant, his agent; he is appointed by the court, though nominated by the party, and is no more the agent of the party nominating him, than an arbitrator is the agent of the party by whom he is chosen. Washington, J. in Gilpins v. Consequa, 1 Peters's R. 88. Commissioners have not power, as courts have, to reject a witness who is produced for examination. Roane, J. in Clay v. Williams, 2 Munf. 123. But they are not bound to divest themselves entirely of all discretion as to what is, or is not, legal evidence. Ld. Eldon, Ch. in Whitelock v. Baker, 13 Ves. jun. [515]. When a deposition is offered to be read, which is supposed to contain exceptionable matter, 'tis the duty of the objecting party, to point out the exceptionable matter, and to move the court to instruct the jury to disregard it. Tucker, J. in Buster's ex'r v. Wallace, 4 H. & M. 82. An objection to a deposition, "so far as it states the mere belief of the deponent as to matters spoken of by him; the sayings or doings of others not parties to the suit; and the understanding, reputation or tradition of the neighbourhood, and so far as the answers are given to leading questions;" was not sustained, because of the generality of the objection. It is incumbent on the party objecting to point out the exceptionable passages, and move the court to expunge or disregard them. Harriman v. Brown, 8 Leigh, 697, 705-6. In the recent case of Jones v. Lucas, 1 Randolph, 268, the defendant moved the court to exclude from the jury certain an |