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It was perhaps owing to a laudable attachment to the cause of the liberty of the subject, that this remedial part of the statute was not extended to cases where execution is sued out against the person of the debtor.
While partial aid has been afforded to the rightful creditor in this instance of Parliamentary interference, it is to be regretted that so much remains to be done effectually to relieve the successful party to a suit, whether plaintiff or defendant, from a load of what are emphatically called extra costs, which probably owe their origin to a gradual departure from the true signification of the technical terms "costs as between party and party," and "costs as between attorney and client."
These extra costs amount in most cases to 207. or 301. frequently to 30% or 60%. and sometimes to a much larger sum. Hence it is evident, that an effectual bar is opposed to the recovery of any demand, however just, the amount of which does not exceed the sums thus paid by the suitors; and hence it may easily be conceived that the means of oppression are placed in the hands of the wealthy, to whom the payment of the costs of a suit is of little moment compared with the gratification of private pique or resentment, which may be indulged with certainty, since the just creditor, though obtaining a verdict, must of necessity be a loser by the suit: and there is too much truth in the adage, "Multi litigant in foro, non ut aliquid lucrent, sed ut vexent alios."
The first step towards obtaining a remedy for this increasing evil is to ascertain its cause; and it is the object of the following pages to assist in the investigation.
One of the principal points of difference between the costs out of pocket and those allowed on taxation, consists in the disallowance of a considerable proportion of the
payments made to witnesses in respect of their expenses and loss of time.
It is the design of the author to limit his present Considerations to the latter item.
It is a matter of sufficient notoriety that persons of every description, who are subpoenaed to give their testimony on the trial of causes, and who are necessarily obliged, on' that account, to absent themselves from their ordinary occupations, expect to receive, and do usually receive, a sum of money as a remuneration for their loss of time.
On the taxation of costs this remuneration is in some instances allowed, and in others is either partially or wholly disallowed; but it does not appear, that in making the allowance or disallowance, the taxing officer is guided by any determinate rule or principle.
Here then is an instance of that uncertainty, which is justly called "the mother of contention and confusion,” (a) and which is the frequent occasion of the most serious hardship and injustice, inasmuch as the payments to witnesses for loss of time are made entirely on the faith of. their being allowed on taxation; and consequently, if disallowed, they become an irremediable loss to the party, making them.
A latitude of discretion has been wisely reposed, at first. in the judges of the courts by whom costs were originally taxed, and, subsequently, when business had accumulated, in officers appointed by them: but the exercise of that discretion has invariably been confined to the determination of the quantum of allowance, and certainly ought not to be so extended as to contravene the ends of justice.
With regard to the general question of propriety, in
(a) Co. Litt. 9. (a.)
point of law, of allowing a reasonable sum to witnesses as a remuneration for loss of time, the answer, whether in the negative or affirmative, must shew either that the allowance or the disallowance, made by the taxing officer, has been incorrect.
This question, although evidently of great public interest, has never yet been brought under serious discussion: this circumstance may be accounted for by the fact that few attorneys, especially among practitioners in the country, ever become acquainted with the particulars of the deductions made on the taxation of costs, as between party and party; yet this absence of information is by no means attributable to any want of exertion on the part of the attorney for the interests of his clients, as will appear from the following account of the usual proceedings on such taxation.
An affidavit is made of the several payments in respect of fees to counsel, expenses and attendance of witnesses, and other extraordinary disbursements, on behalf of the party in whose favor a verdict has been obtained; and this affidavit of increased costs, as it is technically called, is produced to the taxing officer, accompanied generally with a bill of the particulars of the costs attendant on the
Where such a bill of costs is not exhibited, the officer, on an inspection of the pleadings, rules, summonses, orders and briefs, and of the affidavit of increase, makes his calculation of the allowance which he conceives ought, under the circumstances of the case, and in conformity with the
practice of his office, to be made, and then marks upon the postea, in a gross sum, the amount which the party is intitled to receive for his costs from his opponent.
From this mode of taxation, it is evident that the attor ney can acquire no information respecting the particulars
of the deductions that have been made, unless by the uncertain channel which a casual conversation with the officer during the taxation may afford him.
It is now, however, the usual practice to produce, along with the affidavit of increase, a regular bill of costs, in which a blank margin is left for the insertion of the several deductions to be made by the officer, who has, upon this plan, an opportunity of taxing each item seriatim.
But, even according to this mode of taxation by bill, as it is termed, the allowance in respect of the expenses, and loss of time of witnesses, is generally made in such a manner as to preclude the possibility of the attorney's ascertaining what proportion of each item is disallowed, and consequently of knowing in what instances he has improperly expended his client's money; for, certainly, every expenditure must be considered as improper which is ultimately disallowed on taxation.
What has been advanced on the obscurity and uncertainty in which the taxation of costs in this particular is involved, is fully justified by the following observation.
All items in bills of costs are taxed separately, except those which are charged in respect of witnesses; these are almost invariably marked in the first instance in the vacant column, as being taken off, and a sum in gross, amounting in most cases to considerably less than even the actual disbursements for the necessary expenses of the witnesses, is added at the foot of the bill to the allowed items under the general head," For Witnesses;" but without specifying whether any allowance is made for loss of time; or in what manner, where such an allowance is made, the sum allowed is to be apportioned.
Without questioning the propriety of this mode of taxation, so far as it respects the duty of the officer, it is to
be regretted that greater facilities are not afforded to the profession for ascertaining the particulars of the allowance for witnesses, since bills of costs, if properly taxed, would offer the best guide to attornies for the regulation of their disbursements.
Until the great question shall have received a judicial determination, whether in any case, and to what extent, witnesses shall be remunerated for loss of time, it may be impracticable to avoid making to all witnesses, as at present, a remuneration on that account, without endangering the loss of the suit, by rendering those who are subpœnaed what, in legal phraseology, is termed "unwilling witnesses."
Besides, if there be truth in the maxin that communis error facit quasi jus, the practice, hitherto invariable, of paying witnesses for loss of time, has so far confirmed the principle, that the remuneration is now reasonably expected, not so much from the bounty or liberality of the party, on whose behalf their evidence is demanded, but as a debt arising out of a legal obligation.
Thus in the case of Hallet against Mears and another, (a) the plaintiff, who had been subpoenaed as a witness, and who attended the trial, but did not give his evidence, obtained at the Chester assizes, in 1810, against the parties who had subpoenaed him a verdict in an action of assumpsit for work and labor, expense of journies, and attendance in consequence of the subpœna.
And yet, on a recent application (b) to the Court of King's Bench, for a rule to shew cause why the Master should not review his taxation of the plaintiff's bill of costs, on the ground of inadequacy of allowance in several instances, the court, in the absence of the Lord Chief Justice,
(a) 13 East 15.
(b) Atkinson v. Sadler, Trin. Term, 1815. MS.