writ must describe the papers required to be brought with such reasonable certainty that the witness will readily understand what they are. The service of the writ is accomplished by showing the original and leaving a copy of the subpoena or a ticket containing its substance with him, and by tendering to him the fee allowed by law for one day's attendance and the mileage allowed to him by law for traveling to and returning from the place at which he is required to attend.
It is only in civil cases, however, that the payment or tender of fees is a necessary element of service; in criminal cases the witness is required to defray his own traveling expenses, and, after attending, accept such provision as may be made by law for his reimbursement in the way of per diem and mileage.
The question of the character and amount of fees to which the physician as a witness is entitled will receive attention in the closing pages of this article.
Disobedience to the mandates of a subpœna, properly served, is punishable by commitment for contempt of court; in addition, the person so subpœnaed, by failing to appear, becomes liable to an action by the party in whose interest he was called to testify, for the recovery of damages sustained by reason of his failure to respond. In some jurisdictions[1] this liability is recognized by express statute and liability in an additional sum imposed as further penalty.
Competency of Witness.
Ordinarily there are many objections which may be urged against the competency or legal capacity of the witness to testify, which, manifestly, may not be urged against the class of witnesses in consideration. Thus, under the head of defect of understanding, may be grouped infants of such immature mind as to be unable to comprehend the import of an oath, idiots, insane persons and intoxicated persons, the capacity of which witness is to be determined by the trial judge.
The want of religious belief was, at common law, a complete bar to the right of a witness to testify. This ground of
- ↑ See N. Y. Code of Civil Procedure, Sec. 853.
