SU BP (E NA (Lat. sub, under, pwna, penal ty). A process to cause a witness to appear and give testimony, commanding him to lay aside all pretences and excuses, and appear before a court or magistrate therein named, at a time therein mentioned, to testify for the party named, under a penalty therein mentioned. This is called distinctively a sub poena ad testificandum.
On proof of service of a subpoena upon the witness, and that he is material, an attach ment may be issued against him for a con tempt, if he neglect to attend, as commanded.
Where a witness, duly served, fails to at tend, and gives as his excuse that he knows no evidence relative to the issue or that the subpoena was taken out merely for vexa tious purposes, the court may order it set aside. This was done in the case of the prime minister and home secretary of Great Britain; 25 T. L. R. 79. Members of the cabinet; People v. Smith, 3 Wheel. Cr. Cas. (N. Y.) 135; and congressmen may be sub poenaed (not while in attendance on or going to or from a session of congress ; Respublica v. Duane, 4 Yeates [Pa.] 347), and probably the President of the United States. See U. S. v. Burr, Fed. Cas. No. 14,692. Official duties may be a sufficient excuse for not ap pearing. See Thompson v. R. Co., 22 N. J.
Eq. 111. As a general rule, the court should assume that the executive is acting properly, and that his absence is due to his official duties ;, Appeal of Hartranft, 85 Pa. 433, 27 Am. Rep. 667. See 22 Harv. Law Rev. 376.
In Chancery Practice. A mandatory writ or process directed to and requiring one or more persons to appear at a time to come and answer the matters charged against him or them. The writ of subpoena was originally a process in the courts of common law, to enforce the attendance of a witness to give evidence ; but this writ was used in the court of chancery for the same purpose as a cita tion in the courts of civil and canon Jaw, to compel the appearance of a defendant, and to oblige him to answer upon oath the allega tions of the plaintiff.
It was invented by John Waltham, bishop of Salisbury, and chancellor to Rich. II., un der the authority of the statutes of West minster II. and 13 Edw. I. c. 34, which en abled him to devise new writs ; Cruise, Dig. t. 11, c.' 1, § 12. See Vin. Abr. Subpcena; 1 Swanst. 209; Spence, Eq. Jur.
A Latin form of a subpoena is given in 1 Holdsw. Hist. E. L. 433.