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before the cause was called on; and having been also detained five days at the preceding assizes, when the same cause was made a remanet. His Lordship observed, that the former detention of the witness was owing to circumstances which no one could foresee, and that the court could grant him no relief.

Thus the question of propriety, in point of law, of allowing to witnesses a remuneration for loss of tinie, must, so far as regards insurance brokers, be considered at present as settled, although it still remains open as to witnesses of other descriptions.

. In considering the point on general grounds, it is certain that a wide difference subsists between actions which are instituted for the public advantage, and those for private redress. A witness in the one case appears on behalf of the public, in whose interest his own is involved; but in the adjustment of private disputes, by recourse to law, the appeal is for the benefit of the individual alone.

If, therefore, a witness sustain a loss in consequence of his attendance to support the interest of another, it is only reasonable that he should be compensated for such loss by the party requiring his testimony, according to the maxim qui sentit commodum sentire debet et onus.

The law, in consideration of the difficulty which individuals might experience in procuring the attendance of witnesses, has provided the means of compelling their appearance, by the process of subpæna ad testificandum; but this compulsory remedy, which was found necessary for the ends of justice, should, like all other measures, that are justifiable only on principles of necessity, be rendered as little burthensome to the party against whom it is to operate, as possible.

There are few instances in which some inconvenience is not experienced, or some profitable or pleasurable

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engagement interrupted, where persons are obliged to leave their business or their homes in obedience to a subpœna.

When no further inconvenience can result from being unexpectedly summoned to attend at a distant place, than the interruption of some pleasurable pursuit, the witness can only regret that he is obliged to discharge, at that particular period, a duty which the laws of his country. have imposed upon him; but when not only an inconvenience, but a positive loss, must be the consequence of his attendance, on behalf of a person with whom he may have no connexion, and perhaps no acquaintance, there can be no ground whatever on which to require that such loss should be borne by the witness.

The object of the law, in giving to individuals the benefit of the process of subpoena ad testificandum, was to furnish them with the means of procuring justice, in cases where they might be aggrieved, and not to enable them to oppress or harass those whose attendance they have thus the means of compelling; and therefore, the party who has obtained the benefit of a witness's testimony, should be required to place that witness, as nearly as circumstances would permit, in the same situation as the subpoena found him.

And this is perfectly consistent with public policy; for, although excessive payments to witnesses might be an inducement to perjury, it is clear that the refusal of any remuneration for loss of time, would be a temptation to them to withhold their testimony, and thus to impede the course of public justice.

The number and expense of suits would manifestly be increased, by the difficulty of obtaining information, before the trial, as to the merits of the case; for, as soon as any dispute should appear likely to come before the court for

investigation, the mouths of all those who might be able to furnish information would be closed, and parties might proceed, from not knowing the weakness of their case, while the attorney, whose duty it is to inquire into the nature of the evidence which may be produced, and to select those witnesses only whose testimony may be absolutely requisite for establishing his client's case, would be obliged, instead of the exercise of his discretion in that respect, to subpoena, on a blind speculation, all those to whom report might attribute any knowledge of facts connected with it, without any certainty that their evidence would be favorable to his client's interest.

This may, by some, be considered as an extreme view of the subject; but to those professional gentlemen to whose lot it has fallen to apply for information to unwilling witnesses, it must be a well known fact that it is often utterly impracticable to obtain any knowledge whatever, previously to the examination of witnesses in court, of the nature of the evidence which they may be able to give.

This difficulty, which, even under the present practice of paying witnesses for loss of time, is of considerable extent, would be greatly increased if no such allowance were made; as, by this circumstance alone, all those who ́are not bound, by any tie of interest, or otherwise, to the party on whose behalf they are subpoenaed, would be rendered unwilling witnesses. It appears as necessary, that a witness should entertain no prejudice against the party subpoenaing him, which must be the case if his attendance be detrimental to him, as it is that he should have no leaning towards that party, in consequence of being paid more than a reasonable remuneration for his loss of time.


By adopting the middle course of procedure, and paying

witnesses a reasonable sum for loss of time, not only would the ends of justice be better satisfied, as between the immediate parties to the suit; but the witnesses themselves would have no reason to complain. They would not then be required to sustain a burthen which, by the present practice, must be imposed on them, and which certainly has neither the principles of reciprocity nor of necessity to justify it.

In the case of Atkinson v. Sadler, it was observed by the Lord Chief Justice of the court of King's Bench, that "the plaintiff should be indemnified, and ought not to be a loser by the attendance of a witness;" but surely the arguments which are capable of being urged in support of this observation, may be applied with much greater force in favor of the converse of the proposition, that "the witness should be indemnified, and ought not to be a loser by his attendance on behalf of the plaintiff.'


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This latter position affords perhaps the best criterion by which to determine in what cases witnesses ought to be paid for loss of time.

When the extent of the loss is capable of being ascertained, no further guide seems requisite in order to fix the quantum of the remuneration. And it is equitable that the remuneration should not be confined to the amount of profits ordinarily resulting to the witness, from his personal attendance upon his own concerns, but should have reference also to extraordinary gains, when such gains are capable of being clearly made manifest, and where it can be shewn that he has been deprived of them, by being compelled to give his attendance, in obedience to a subpœna.

Upon this point, however, there has been a contrary decision in the case of Thelluson v. Staples, (a) wherein an application was made to the court of King's Bench, on behalf of two of the plaintiff's witnesses, for a rule to

(a) Doug. 438.

shew cause why the Master should not be directed to review his taxation, and make an allowance to them, adequate to the profits to which they would have become entitled, as super-cargoes of two French East Indiamen, to which they had been appointed; the voyage being lost to them in consequence of their having been brought from France to England, to attend the trial of the cause.

In the absence of Lord Chief Justice Mansfield, the court, in that case, refused the rule, saying "they could not allow for contingent damages; that it would be a dangerous precedent; and that the Master had certified that such applications had frequently been made, and always without success.'

Yet it does not appear that the wise and salutary maxim stare decisis, would be infringed if an allowance were now to be made to witnesses, except indeed under particular circumstances for contingent damages.

For the solitary case cited, which was decided by the court in the absence of the Lord Chief Justice, and in a great measure, as appears by the report, upon the representation of the Master as to the practice of the court, must be considered as resting upon a foundation very different from the claim of witnesses in general.

In that case the application appears to have been made on behalf of the witnesses themselves, who were resident in France, and consequently not compellable to come to this country to be examined, and were therefore in a situation to make their own terms with the party on whose behalf they were subpoenaed; but even supposing the application to have been made on the part of the plaintiff, it is clear that he could be entitled to little favor from the court, as he might have put off the trial of the cause, until the return of the witnesses from their voyage, when their time would have been less valuable; or at all events he might have proceeded by the less expensive course, of ob

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