alteration be immaterial, or according to the original intent of the parties (b).

Thus, when the defect is unintentional, and the alteration makes the writing merely what it was intended originally to have been, it will not require to be restamped (c). Where a promissory note was made originally payable to the plaintiff, who complained that it ought to have been payable to order, it was held that, as between the parties to the note, the interlineation of the words, "or to order," did not render a new stamp necessary (d). So, when a bill is altered by the consent of parties before the note has issued, it will not require to be restamped. But when the bill has issued, and where the alteration is material and varies the essential character of the writing, so as to amount to a new contract, a new stamp will be required, notwithstanding the consent of the parties to the alteration (e).

TIME OF OBJECTING TO THE WANT OF STAMP.

Where an objection is raised to an instrument for want of a stamp, the objection should be taken as soon as the instrument is tendered, and before it is received in evidence. If the instrument be received, and read without objection, it cannot afterwards be objected to for want of a stamp (f). Such a deficiency is clearly not ground for a new trial; but it may be doubted

(b) Master v. Miller, 1 Smith L. C. 796, and notes.

(c) Cole v. Parkin, 12 East, 471.

(d) Byrom v. Thompson, 1 A. & E. 31.

(e) Bowman v. Nicholl, 5 T. R. 537.

(f) Robinson v. Lord Vernon, 7 C. B. N. S. 235.

whether a judge at Nisi Prius has not at least a discretionary power to reject a document which, after being put in, appears to be unstamped, or insufficiently stamped (g). But, generally, an objection to an unstamped writing should be taken before it is read in evidence (h).

(g) Field v. Wood, 7 A. & E. 114.

(h) Foss v. Wagner, 7 A. & E. 116, note.

PART III.

CHAPTER I.

ON THE ATTENDANCE OF WITNESSES.

PROCESS.

THE attendance of witnesses in the superior courts of common law, in courts of equity, and, when such process is necessary, in the criminal courts, is obtained by serving the witness with a subpœna ad testificandum. If the witness is required to produce a document he is served with a subpœna duces tecum. In India, a summons to witnesses or other persons to attend either to give evidence or produce documents is issued by the court (a).

PENALTY FOR NON-ATTENDANCE.

(5 Eliz. c. 9, s. 12) (b).

"If any person upon whom any process out of a court of record shall be served to testify concerning

(a) Act viii. of 1859, s. 149.

(b) Act viii. of 1859, sects. 159 & 160.

P.

BB

any cause or matter depending there, and having tendered to him, according to his countenance or calling, such reasonable sum of money for his costs and charges, as with regard to the distance of the place is necessary to be allowed, do not appear according to the tenor of the process, not having a lawful and reasonable cause to the contrary, he shall forfeit for every such offence 107., and yield such further recompense to the party grieved as by the discretion of the judge of the court, out of which the process issues, shall be awarded."

If a witness do not attend on his subpoena, he may be proceeded against in either of three ways:—

1st. Under the above statute he may be sued in an action of debt for the penalty of 107., and further recompense; or,

2nd. In an action on the case for damages (c); or, 3rd. He may be attached for contempt of court: but, on the motion for an attachment, it must be shown distinctly on affidavit that the witness was served; that his expenses were paid or tendered to him at the time of service; and that everything reasonable has been done to secure his attendance (d).

ATTENDANCE IN CRIMINAL PROCEEDINGS.

Generally the witnesses for a prosecution are bound over, by the committing magistrate or coroner, on recognizances conditioned to be forfeited if the witness do not appear to give evidence on the trial of the prisoner; but, if a witness be not so bound over, his

(c) Pearson v. Isles, Dougl. 561.

(d) Garden v. Cresswell, 2 M. & W. 319.

attendance may, and ought to be, secured at the trial by serving him previously with a subpoena to appear and give evidence, on the prosecution of the prisoner, at the trial. A magistrate or coroner may bind over a person to appear as a witness at the trial, at any time before the trial, and may commit him if he refuse to be bound over. If the witness do not appear, the recognizance is forfeited and the penalty levied. subpoena may be obtained at the Crown Office in London, from the clerk of assize at the assizes, and the clerk of the peace at quarter sessions. If a subpoenaed witness do not attend he may be attached, or indicted. A prisoner may subpoena witnesses for his defence (e).

A

Now by the 3rd section of the 30 & 31 Vict. c. 35 (which came into operation on the 1st October, 1867), prisoners are to be asked by magistrates if they wish to call witnesses; if they do, the depositions are to be taken, and signed, and transmitted to the court of trial in the same way as the depositions of the witnesses for the prosecution; and the magistrate may bind over by recognizance to give evidence at the trial such witnesses as in their opinion give evidence material to the case, or tending to establish the innocence of the accused; such witnesses are to be liable to all the laws in force relating to witnesses for the prosecution. This provision is not to extend to witnesses to character. And by the 5th section, where witnesses are bound over to appear on behalf of the prisoner at his trial, the court may allow (ƒ) their expenses.

(e) 1 Anne, c. 9, s. 3.

(ƒ) Cf. Act xxv. of 1861, ss. 207, 208.