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taining a commission for the examination of the witnesses abroad, to which the defendants would have been compelled by the court to consent.(a)
But the disinclination of the courts to make a remuneration to witnesses for loss of time, is not confined to contingent profits, as is evident from the tenor of the discussion which took place in the case of Atkinson v. Sadler. Mr. Justice Le Blanc, on that occasion, in addition to his observation that "loss of time is never demandable, and is only allowed to persons in poor circumstances, whose families cannot subsist without such allowance," stated that "it would lead to terrible consequences if witnesses of every description were to be allowed according to the value of their time."
And, although the Master expressly stated to the court, that it had always been the practice to allow to professional men a remuneration for loss of time, his Lordship observed, that he "did not know how such allowance would stand with the law, if examined into."
Now with regard to professional men, it is certain that, to most of them, every day's absence from their ordinary pursuits must be attended with an absolute loss, the amount of which is capable of being ascertained with tolerable accuracy; but even when that cannot be done, their usual and regular charge to their employers, on occasions requiring their absence from their occupations, would be a sure guide to the officer, in taxing the amount of their remuneration.
There would indeed be a peculiar hardship in denying to attornies a remuneration for loss of time, as the necessity of their attendance, as witnesses, almost invariably arises out of their professional engagements, which expose
(a) Tidd. Pr. 812.
them to a perpetual liability to be called upon, for the purpose of giving evidence of circumstances connected therewith.
For instance, attornies, by the simple act, exercised almost daily, of attesting the execution of deeds or other instruments, pledge themselves to give evidence of such execution, when called on;' and it frequently happens that an attorney, on the eve of the assizes in his own county, is obliged to attend for several days in London, as a witness, merely to prove a fact of this description.
From the nature of an attorney's business, it must also necessarily happen that he becomes acquainted with the hand-writing of a great variety of persons. This knowledge makes him perpetually liable to be summoned to give evidence of hand-writing; and his refusal to attend for the purpose of giving such proof, would be held a contempt of court, for which he would be liable to be committed.(a)
It is indeed unnecessary to multiply instances, to shew that persons in different situations in life are very unequally subject to be called upon as witnesses; and if this be conceded, the principle of reciprocity, upon which alone it can be contended that a witness ought to sacrifice his time for the benefit of another, ceases to be applicable.
It may perhaps be urged against the propriety of allowing to witnesses a remuneration for loss of time, that the masters and prothonotaries cannot possibly judge what ought to be the extent of the remuneration in each particular case, from a bare inspection of the affidavit of increase; as the general description of a witness, as for instance, civil engineer, architect, auctioneer, surgeon or attorney, can afford no means of ascertaining the extent of
"By attesting an instrument, a man pledges himself to give evidence of it whenever he is called upon." Per Lord Mansfield. Cowp. 846.
(a) Wyatt v. Winkford, Ld. Raym. 1520. Vide supra. pa. 206.
the witness's business, or the amount of his ordinary gains. But this difficulty may be obviated, by requiring the affidavit of increase to state, that the several sums paid to the witnesses respectively, for their trouble and loss of time, were so paid under due consideration of the actual situations in life of the several witnesses, and were not more, in the judgment and belief of the deponent, than reasonable and proper sums to be paid to them respectively, as a remuneration on that account.
By the adoption of such a measure, there could be no danger of any excessive allowance being claimed, unless where the affidavit might be made through misconception, or misinformation, as to the witness's real situation: and even in such cases no inconvenience could arise, as all errors would be subject to correction before the officer, upon a statement, or counter-affidavit, to be made on behalf of the opposite party, who always has it in his power to obtain a copy of the affidavit of increase, previously to the taxation of the costs.
In fine; it becomes a matter of most serious importance to the public, that the deliberate opinion of the several Courts should be obtained, and their solemn decision promulgated, in order that the great detriment to which suitors are now exposed may be avoided. For it is an alarming consideration, that within the last twenty or thirty years, the expenses of suits at law have been so much increased, from the heavy disbursements made on account of witnesses, and rendered indispensable by the change of times and other circumstances, that unless some relief be afforded on the principle here maintained, the protection of equal law, the Englishman's boast, will exist only in theory.
It is a fact, that in cases where there are many witnesses, the payments made to them frequently amount to one-third, or even one-half of the costs of a suit; and con
sequently if a moiety of those payments be disallowed, on the ground of its being the proportion for loss of time, the successful party must sustain a loss, from this source alone, of one-sixth, or perhaps one-fourth of his whole costs.
Under the existing circumstances, therefore, attornies will be guilty of an injustice towards their clients, if they do not explain to them that, until a decision of the Courts shall authorise such payments, it is highly probable that no part of the disbursements made to witnesses, for loss of time, will be allowed on the taxation of their costs. It is even doubtful whether the Master would allow to an attorney, on the taxation of his bill, at the instance of his client, any payments for the loss of time of witnesses, unless expressly sanctioned by the special instructions of the client.
The numerous difficulties and inconveniences which must occur, both to the public and to their professional agents, until the point in question shall have received a judicial decision, will probably operate as an inducement to the Courts, upon a proper application, to deliver their opinions in such a manner, according to the determination which shall be made, as will fully satisfy either the party as to the propriety of making, or the witness as to the propriety of foregoing, a remuneration for loss of time.
The Author's object in laying these pages before the public, is to bring the matter under general and immediate consideration. He trusts it will be found that all the facts mentioned in the progress of his observations, are correctly stated.
He has not intentionally withheld the arguments in sup port of a contrary opinion, although he has endeavoured, to the best of his power, to establish his own view of the subject, fully impressed as he is with the conviction of the equity, humanity, and policy, of allowing to witnesses an adequate remuneration for their loss of time.