Subpcena

2 1.

A writ requiring a person to appear at a certain time and place, or in default to pay a penalty or undergo punishment. Devised about 1382, by John Waltham, chancellor to Richard II, to make a feoffee to uses accountable in chancery to his cestui que use. The process was afterward extended to matters wholly determinable at common law. In the time of Edward IV U46I-83), process by "bill and subpcena" had become the daily practice in chancery. 3 As soon as a common bill is filed, process of subpoena is taken out, which is a writ commanding the defendant to appear and answer the bill, on pain of one himdred pounds. If he is served and does not appear, within the time limited by the rules of the court, and plead, answer, or demur, he is in contempt.^ Compare Summons.

3.

In divorce causes, an order to appear and answer the bill or libel.

See Libel, 3. 3.

In courts of common law, a process for bringing witnesses into court in order to obtain tbeir testimony — a writ of subpoena ad testificandum: a "subpoena for testifying,'' for causing a person to appear and testify. The writ commanded the witness, laying aside all pretenses and excuses, to appear at the trial on pain of one hundred pounds to be forfeited to the king, and, by 5 Eliz. (1564), c. 9, twenty pounds to the party aggrieved, and, also, damages equivalent to the loss sustained by the want of the evidence.^ But no witness, unless his reasonable expenses are first tendered him, is bound to appear in a civil suit; nor, if he appears, is he bound to give evidence till such charges are actually paid him.^ Subpoena duces tecum. A subpoena that you bring with you. A writ issued to procure, in addition to a witness's oral testimony, the production of one or more writings in his possession.

1 F. suborner: L. subornare: sub, under, secretly; ornnre, to furnish.

2 L. sub-pcena, under penalty.

3 3 Bl. Com. 51-52; 1 Story, Eq, § 46. * 3 Bl. Com. 443, 444-45.

It consists of a clause of. requisition, particularly designating the document, added to the ordinary subpoena. ' A witness examined under Rev. St., § 863, may be compelled to produce books and papers in his possession which would be material and competent evidence for the party calling him, upon the trial of the cause, but he cannot be compelled to produce them merely for the purpose of refreshing his memory.* The writ is used to compel the production of written testimony. It cannot issue to a witness, not a party, to produce a thing like a stove-pattern. = The witness must obey the subpoena, leaving to the court the sufficiency of the reason for not producing the document. Whether a private paper belongs to him or not, he must bring it into court, if in his possession. But a custodian of public records cannot be compelled to produce such records, they not being within his power.* See further Produce, 1. Subpoenas are to be personally served. The length of time depends upon the circumstances of each case; generally, twenty-four hours notice for ea'ch twenty m Ues is sufficient.* The manner of service is regulated by local statutes or rules, as are likewise fees, mileage, etc. If the cause goes over to another term, the witness must be subpoenaed anew."

4.

The word is also used, as seen above, in verbal senses: to subpoena, be subpoenaed, subpoenaing, etc.

See DisoovEKY, 6; Inspection, 2; Pkocess, 1; Wit- IfESS.