England and Wales High Court (King's Bench Division) Decisions

IN THE HICH COURT OF JUSTICE
KING'S BENCH DIVISION

An attorney, who has attended on subpoena as a witness in a civil suit, cannot maintain an action against the party who subpoenaed him, for compensation for loss of time.

[S. C. 1 D. P. C. 326; 9 L. J. K. B. O. S. 158. Distinguished, In re Working Men's "Mutual Society, 1882, 21 Ch. D. 834; Chamberlain v. Stoneham, 1889, 24 Q. B. D. 113.]

Assumpsit to recover a remuneration for the plaintiff's loss of time during his attendance on subpoena as a witness in the cause of Godefroy v. Dalton. The money counts were added. Plea, general issue. At the trial before Lord Tenterden C.J., at the London sittings after last Hilary term, it appeared that Dodefroy brought an action against Dalton, an attorney, for negligence and unskilfulness in the conduct of an action in C.P., and caused Collins, the present plaintiff, to be subpoenaed to attend; and he attended in Court six days for the purpose of giving his evidence, but was not called. Godefroy obtained a verdict, which the Court of Common Pleas afterwards set aside. Collins, the present plaintiff, on the 2d of November (1829) demanded of Godefroy six guineas as his regular fee for attendance, and gave him notice that unless that sum was paid in the course of the next day, he should enforce payment on it. The defendant said he thought that it had been paid by his then attorney. The plaintiff commenced his action on the 3d of November. On the13th the defendant applied to the Court of King's Bench to stay the proceedings upon payment of six guineas without costs, on an affidavit stating that Collins had commenced his action on the 3d, whereas, according to the notice, he had agreed to give the defendant the whole of that day for payment; but the Court made the rule absolute, upon payment of six guineas and the costs of the cause and of the application. Godefroy did not pay the costs pursuant to the rule, but pleaded the general issue. Upon these facts, Lord Tenterden was of opinion that the plaintiff was not entitled to recover, because, in point of law, he was bound to give his evidence pursuant to the subpoena; and the plaintiff was nonsuited, but liberty was reserved to him to move to enter a verdict for six guineas.

Kelly now shewed cause. A person who has attended a trial as a witness, on subpoena, cannot maintain any action for compensation for loss of time, because it is a duty imposed by law on all persons to attend and give evidence in Courts of Justice. The law will not, therefore, imply a promise by the party on whose behalf that duty has been performed to make any remuneration to the witness. An express promise of remuneration for the performance of such duty would be void, as having been made without consideration. On this principle, a promise to pay money to a sheriff, in consideration of his doing that for which the law did not allow him any thing, e.g. executing an elegit, is void in law, and will not support an assumpsit. Bridge v. Cage (Cro. Jac. 103). So a high bailiff or sheriff, when called upon by the King's writ to return members of Parliament, although he incur a great expense therein, cannot at common law recover from a candidate any part of the expense so incurred, inasmuch as it arises from acts which he is bound to do by virtue of his office. Morris v. Burdett (1 Campb. 218). Besides, it may be fairly inferred from the statute 5 Eliz. c. 9, s. 12, that such an action as this was not maintainable at common law. That statute enacts, that if any person upon whom any process out of a Court of Record shall be served, to testify concerning 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. To subject the party, therefore, to the penalty, that statute requires that there should be tendered to him merely that reasonable sum for his costs and charges, which, with regard to the distance of the place, ought to be allowed. It does not require that any thing should be tendered to him by way of compensation for loss of time. The practice in the Master's office, in taxing costs between party and party, cannot make the law. Dew v. Parsons. The right of action (if it exist) must accrue either by common law or by statute. Then, assuming that there was an express promise in this case, there was no consideration for it. And Willis v. Peckham (Brod. & B. 515), is an authority to shew what a witness cannot recover a compensation for his loss of time though there be an express promise. In Moor v. Adam (5 M. & S. 156), which was there referred to, the Court of King's Bench refused to allow compensation for loss of time of to two merchants who came from abroad as witnesses; and Holroyd J. mentioned from memory a case which he had received from Chambre J., where the Court delivered their opinion seriatim against the allowance of compensation for loss of time to a medical person who came as a witness from Edinburgh.

Campbell and Collins contra. First, this action is maintainable at common law independently of the Statute of Elizabeth. Secondly, that statute is no bar to the action; and thirdly, in this case there was evidence of an express promise. First, the plaintiff, a professional man, having been required by the defendant to attend a trial, in the result of which the latter had an interest, the law will raise an implied promise on his part to make compensation to the plaintiff for his loss of time. The public had no interest whatever in the result of the suit. It is different, therefore, from the case of an indictment for a felony or misdemeanor, in the prosecution of which the public may have an interest, and in such a case it may be the duty of every person, duly called upon, to give his evidence. But a party who attends a Court of Justice to give his evidence in a civil cause, does it, not in discharge of a public duty, but to confer a benefit o an individual; and if he sustain a loss thereby, as every professional man must, he ought to have a reasonable compensation for that loss. The usage which has prevailed in the Master's office shews that such a compensation is reasonable; and a professional man, aware of that usage, may be supposed to have attended to give his evidence, upon the faith that he would have the remuneration usually allowed in those cases. Such usage, therefore, may be considered the foundation of an implied contract. It would be most unfit to leave it in the option of a party to remunerate a witness for loss of time; for it might then be made to depend on the result of the cause; and that would manifestly lead to corruption. Then, assuming that this action was maintainable at common law, the statute 5 Eliz. c. 9, s. 12, does not take away the right of action. That Act gives an additional remedy in certain cases, to insure the attendance of a witness, and subjects the party making default to a penalty, provided his reasonable costs and charges, having regard to the distance of place, be tendered. But though a party cannot, without first tendering the expenses, enforce the penalty given by that statute, it does not follow that, if the expenses are not tendered, the witness cannot afterwards claim them in an action. It is the constant practice, indeed, for witnesses, to refuse in open Court to give their testimony until their expenses are paid. If the right, therefore, to compensation for loss of time existed at common law, it is not taken away by the statute. There is no express authority to shew that a professional man cannot maintain an action for the loss of his time in attendance as a witness. In Willis v. Peckham (1 B. & B. 515), the plaintiff was a labouring carpenter; and there Park J. said, "Compensation for loss of time is only allowed to medical men and attorneys." In Severn v. Olive (3 B. & B. 72), the Court of Common Pleas directed the prothonotary to review his taxation, on the ground that no allowance ought to be made for the time of scientific witnesses, unless they were medical men, such as physicialns or surgeons; and referred to Moor v. Adam (5 M. & S. 156), and Willis v Peckham, as conclusive that compensation for loss of time could not be allowed to others; but that expression, by reference to the cases mentioned, must be understood as not extending to attorneys. In Lopez v. De Tastet (3 B. & B. 292), the Court directed the prothonotary not to allow costs for the loss of a broker's time: the ground stated in argument there was, that such allowance could only be made to medical men and solicitors. In Moor v. Adam, though the Court decided that no compensation should be allowed to two merchants coming from abroad as witnesses, Lord Ellenborough expressly stated that the Court did not lay down any peremptory rule, that in no case whatever, where a witness came from abroad, should and allowance be made to him for loss of time. In Schimmel v. Lousada^[1], the Court allowed the costs of detaining a foreign witness in England from the commencement of the action till the trial, though not the expenses of bringing him over^[2] before the commencement of the action. But assuming that the law will not imply a promise by a party in a civil suit to make compensation to a witness who has attended the trial in a civil suit, on his behalf, there was in this case evidence of an express promise; for the defendant, having been applied to for six guineas, said he thought that it had been paid by his then attorney; and he afterwards applied to this Court to stay the proceedings in an action brought against him, upon payment of the six guineas without costs. That was equivalent to a tender of the money, and is evidence of an express promise. There was a moral obligation on the defendant to remunerate the plaintiff for the time which he lost in his service; and that was a good consideration for a promise.

Cur. adv. vult.

Lord Tenterden C.J. Assuming that the offer to pay the six guineas without costs was evidence of an express promise by the defendant to pay that sum to the plaintiff as a compensation to him for his loss of time, still, if the defendant was not bound by law to pay that sum, the offer to do so, not having been accepted, will not avail the plaintiff. If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We think that such a duty is imposed by law; and on consideration of the Statute of Elizabeth, and of the cases which have been decided on this subject, we are all of opinion that a party cannot maintain an action for compensation for loss of time in attending a trial as a witness. We are aware of the practice which has prevailed in certain cases, of allowing, as costs between party and party, so much per day for the attendance of professional men; but that practice cannot alter the law. What the effect of our decision may be, is not for our consideration. We think, on principle, that an action does not lie for a compensation to a witness for loss of time in attendance under subpoena. The rule, therefore, must be discharged.

Rule discharged.

Note 1   4 Taunt. 695. SeeThellusson v. Staples, Doug. 438.    [Back]

Note 2   Allowance may be made in costs for loss of time to a foreign witness necessary to the success of the cause, who is not accessible by subpoena, and refuses to attend without compensation.Lonergan v. Royal Exchange Assurance Company, 7 Bingh. 729. And see, there, the opinions of Tindal C.J. and Park J., on the allowance of compensation to professional men for loss of time.    [Back]