art. 118, n. See Burnham v. Morrissey, 14 Gray (Mass.) 226, 74 Am. Dec. 676.
1 The attendance of witnesses is ordinarily procured by means of a writ of subpcena ; sometimes, when they are in custody , Ly a writ of habeas corpus ad teatificandum; and sometimes, in criminal cases, by their own recognizance, either with or without sure ties ; 1 Green'. Ev. §§ 309, 312. If a witness disobey the summons, process of attachment for contempt will issue to enforce his attend ance and an action also lies against him at common law ; 1 Greenl. Ev. § 319 ; 6 C. B. 703.
Nor can any third party intervene to pre vent the attendance of a witness. Neither can be take advantage of a witness's attend ance at the place of trial, to arrest him on civil process. See PRIVILEGE FROM ARREST.
Where a non-resident is in attendance on a trial in a circuit court of the United States as a witness in a case therein pending, he is privileged from service of summons in a civil action issued from a state court of such state, and the privilege extends to a reason able time after the disposition of the cause to enable him to return to his own state; At chison v. Morris, 11 Fed. 582 ; see In re Healey, 53 Vt. 694, 38 Am. Rep. 713; and this is the general rule.
As to the EXAMINATION OF WITNESSES. III the common-Iaw courts, examinations are had viva voce, in open court, by questions and answers. The same course is now adopt ed to a great extent in equity and admiralty courts, and other proceedings according to the forms of the civil law. But a usual meth od of examining in these last-named courts, as also in the court of claims, is by deposition taken in writing out of court ; 2 Story, Eq. Jur. § 1527; 3 Greenl. Ev. § 251.
A trial court may ask a witness such ques tions as it deems necessary for its own in formation and that of the jury ; State v. Nickens, 122 Mo. 607, 27 S. W. 339.
The court permitted the state to ask an extremely ill witness a single question and no more ; accused was not refused a cross examination, but it was held that he could not be compelled to take the risk to the wit ness of doing so, with perhaps fatal result, and a conviction was reversed ; Wray v.
State, 154 Ala. 36, 45 South. 697, 129 Am. St. Rep. 18, 16 Ann. Cas. 362.
On motion, in civil and criminal cases, witnesses will generally be excluded from the court-room while others are undergoing examination in the same case ; this, however, is not matter of right, but within the discre tion of the court ; 1 Greenl. Ev. § 432; 4 C. & P. 585 ; Nelson v. State, 2 Swan (Tenn.) 237. This may extend to a medical expert witness ; Paul v. Ry. Co., 82 Mo. App. 500 ; it is too late if the request be made after some testimony has been received ; Pritchard v. Henderson, 3 Pennewill 128, 50 Atl. 217 ; some of the cases seem to regard ex clusion as the usual practice ; Colbert v. Garrett, 57 S. W. 853; Timberlake v. May er, 76 Miss. 76, 23 South. 767; Sharpton v.
Ry. Co., 72 S. C. 162, 51 S. E. 553. If a witness violates an order of exclusion, the party calling him will not be deprived of his evidence ; Murray v. Allerton, 3 Neb. (Unoff.) 291, 91 N. W. 518 ; it affects only his credit ; Ferguson v. Brown, 75 Miss. 214. 21 South. 603.
Witnesses are required to testify from their own knowledge and recollection. Yet they are permitted to refresh their memory by reference, while on the stand, to papers written at or very near the time of the trans action in question. See MEMORANWIM.
Being once in attendance, a witness may, in general, be compelled to answer all ques tions that may legally be put to him. See EVIDENCE. Yet there are exceptions to this rule. He is not compellable where the an swer would have a tendency to expose him to a penal liability or any kind of punish ment, or to a criminal charge or a forfeiture of his estate; 1 Greenl. Ev. § 451. See