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doubted the propriety of the Master's allowing any remuneration to witnesses for loss of time, excepting to poor persons, to whom it might be said to be of direct impor
Mr Justice Le Blanc said, "I take it that it is never demandable; and is only allowable to persons in poor circumstances, whose families cannot subsist without such allowance:" and Mr. Justice Dampier observed, that, “Even in the case of laborers and poor persons, 'it is only allow
Although the courts profess to allow to poor persons described as laborers" a remuneration for loss of time, the allowance is merely nominal, as the sum hitherto allowed for maintenance, as well as loss of time, has not exceeded five shillings per day, notwithstanding the high price of labor, and the increased expense of every article of subsistence.
The insufficiency of this allowance for the maintenance alone of a laboring man, at an assize town, must be evident, when it is considered that, instead of living at the same expense only as if he were at home, he must necessarily, in a strange place, go to a public-house, where, from the uncertainty of his stay, he would generally be obliged to remain at an expense of not less, on the most moderate computation, than seven or eight shillings per diem.
It was said indeed by Mr. Justice Bailey, on the first application to the court, in the case of Atkinson v. Sadler, that out of five shillings per diem, a laborer may take home two shillings and sixpence per diem to his family! But, on a second application in the same case, grounded upon an affidavit, stating that five shillings per diem had been allowed to laborers for their maintenance and loss of time, thirty or forty years back, the Lord ChiefJustice, (who was absent when the first application was made) said, “If that was the sum paid thirty or forty years ago, when the price of ordinary labor was fourteen-pence per day, according to one's knowledge of that period, it seems to have been somewhat too large; whereas it may be too little as things stand now.”
His Lordship, in adverting to the difficulty of laying down any scale of allowance for expenses, which should be applicable to all cases, owing to the circumstance of some towns being better accommodated than others with public-houses, to which witnesses might resort, and where they might be lodged, and living being cheaper in some places than in others, expressly stated, that the remuneration for loss of time would differ according to the sum the witness might earn, but that the allowance for his expenses must be subject to the variations and conveniences of the assize towns.
From these observations, it is probable that the Master will, in future,
able by analogy to the statutes, (a) which give it to witnesses in poor circumstances in criminal cases."
Notwithstanding these dicta, it was admitted by Mr. Justice Le Blanc, in the same case, that "the terrors of a subpoena are not sufficient to induce a witness, who has business of his own, to neglect that business, in order to attend for a plaintiff or defendant, if he be paid merely. sufficient to cover his expenses."
Hence it would appear, that the courts want either the power or the inclination to enforce obedience to their own subpoenas, ' and that suitors who would ensure the atten
(a) 27 Geo. 2. c. 3. and 18 Geo. 3. c. 19.
make such an allowance to witnesses, of the class of laborers, as will be sufficient to cover their necessary expenses, and to afford them also a reasonable remuneration for their loss of time.
It is really curious to consider how many difficulties oppose any recourse to the remedies which the law prescribes in cases of negligence or refusal, on the part of a witness, to give his attendance in obedience to a subpœna.
The statute 5th Eliz. chap. 9. sec. 12. gives to the party grieved, by such non-attendance, the penalty of ten pounds, and a further recompense at the discretion of the judge of the court out of which the process issues, to be recovered in an action of debt.
Ancient precedents certainly shew, that the penalty has occasionally been sued for: at the present day, however, and according to the existing system of taxing costs, this remedy would be worse than the disease; and the plaintiff, as is quaintly observed in a case relative to the costs of this identical kind of action, would "be at a losse to expend more than he recovers.' (Cro. Car. 560.)
This statute can therefore now only be resorted to in respect of the "further recompense,” which it holds out to the party grieved; but, mirabile dictu! only one solitary case, (Pearson v. Iles, Doug. 556.) is to be found in the books, where the recompense, in addition to the penalty, was sued for, and in that instance the plaintiff, on the recommendation of the court, consented to take a verdict for the ten pound penalty only! In delivering the opinion of the court in that case, Lord Mansfield stated, that, although precedents had been cited of actions of debt for the penalty, there were none for the damages; and for this reason, that there is a preferable remedy by attachment. His Lordship, however, stated that an action on the case will lie for damages against a material witness who absents himself without any excuse.
dance of their witnesses, and induce them to perform what the law considers to be a duty, must, of necessity, pay them a sum of money beyond their actual expenses, without the possibility of having any part of it allowed on taxation: this, on the principle already stated, is evidently unjust, and renders the observation of the Lord Chief Justice that, “the plaintiff should be indemnified, and ought not to be a loser by the attendance of a witness" I a mere nullity.
Amid these conflicting authorities, and while the question is still sub judice, it may not be an unprofitable task to consider whether the allowance, as between party and party, of a reasonable remuneration to witnesses for loss of time, be inconsistent with any of our existing laws; and
With respect to the remedy by attachment, it only requires a reference to a variety of cases, (1 Str. 510. 2 Str. 810. 1054. 1150. Barnes's Cases, 33. 35. 497. 1 Bl. 36. 1 H. Bl. 4. Rep. Temp. Hard. 313.) in which applications have been made for attachments against witnesses for non-appearance, to be satisfied that redress cannot be obtained by this measure even in the K B. without considerable difficulty; and in the C. P. it appears that it has not been usual to grant attachments against witnesses for non-attendance upon a subpœna; but the party aggrieved "is left to his remedy by action."— (2 Tidd, pr. 809. 5th edit.)
It only remains, therefore, to notice the remedy by action on the case for damages, of which it is perhaps sufficient to observe that there does not appear to be a single instance wherein it has been brought; probably because a verdict, in such an action, could only be obtained by going through the whole of the plaintiff's case in the original action, and also proving the averment, which must necessarily be made in the declaration against a witness, that the plaintiff had sustained damage to such an amount, by reason of the witness's not appearing; for which purpose it would be neces sary to shew in evidence what particular testimony he would have given on the trial, and what impression it would have made on the jury, after hearing the evidence on the other side. Surely no argument was ever more capable of proof by a reductio ad absurdum !
'This observation was made by his Lordship upon a second application to the court, in the above-mentioned case of Atkinson v. Sadler, confined to the point of allowance for the expenses and loss of time of persons coming under the description of laborers.
whether, though unsupported by any act of parliament, rule of court, or direct decision, it has not been so long tacitly acquiesced in, and acted upon by the taxing officers, as to have acquired the force of a law.
It is somewhat singular, that those treatises which have been written expressly upon costs, afford no information on this particular branch of the subject.
Sayer, (a) in a chapter "On the Costs of Witnesses, makes no mention whatever of loss of time; but, as if he would avoid the question, invariably speaks of the "expense of a witness," or, "the expense on account of a witness," leaving the nature of the expense unexplained.
So in Hullock's Law of Costs, the only notice which is taken of loss of time of witnesses in civil cases, is in a paragraph introductory to the case of Thelluson v. Staples, (a) wherein it is merely stated, on the authority of that case, that "contingent losses which witnesses may have sustained by obeying a subpoena, cannot be allowed in the taxation of costs." (b)
The observation of Mr. Justice Dampier, that a compensation for the loss of time, even in the case of laborers and poor persons, is only allowable by analogy to the statutes which give it to witnesses in poor circumstances in criminal cases, is perhaps scarcely correct; for, with the utmost deference to the opinion of that learned judge, it appears probable that an allowance was made to witnesses, for loss of time, at different periods, long before the passing of either of those acts.
It may indeed, without any great latitude of construction, be fairly inferred, that, even in the days of Lord Coke, such an allowance was sanctioned, as consistent with the law arising by implication out of the statute of Glou
(a) On Costs p. 152.
(b) Vide infra, p. 219.
(c) P. 438.
For, in his lordship's reading upon that part of the statute which speaks of "costages de son brief purchase," he "Here is express mention made but of the costs of his [the plaintiff's] writ; but it extendeth to all the legal costs of the suit, but not to the costs and expenses of HIS TRAVEL AND LOSS OF TIME."
This reading, which negatives only the allowance to the plaintiff, for his travel and loss of time, leaves a strong ground for presumption that an allowance was made to witnesses in respect of their loss of time, as well as for the expenses of their travel; indeed, these two items of charge, by being constantly mentioned together,' seem to have been considered as resting on the same footing, and as being equally demandable; and, certainly, in cases where a person can establish a claim to the expenses of his travelling, he must, generally speaking, be entitled, by a parity of reason, to a remuneration for his loss of time.
It may also be observed, that witnesses, at all times, were obliged, er necessitate rei, to give their personal attendance, while the actual appearance of the plaintiff, on suing out his writ, and of the defendant to answer it, had, in the days of Lord Coke, ceased to be necessary, in consequence of the old law on that head having yielded to the practice then and now in use of appearance by attorney. (a)
It is possible, however, that in the passage cited, the plaintiff's loss of time might be mentioned in contradistinc
'Shakespeare, in the following passage, written evidently in allusion to the language of the law, couples loss of time with travel and expense:
"Deliver Helen, and all damage else,
As honour, loss of time, travel, expense,
Wounds, friends, and what else dear that is consumed
In hot digestion of this cormorant war,
Troilus and Cressida, Act ii. scene 2. (a) 2 Inst. 249.