1820. WILLIS บ. PECKHAM. the defendant, but never paid to the plaintiff. It appeared, however, that the master refused to allow this sum expressly for loss of time, but allowed it under the head of general expences. The counsel for the defendant contended, that this action could not be maintained. That it was contrary to all practice to allow for loss of time; that the attendance of witnesses was a public duty, and they could recover for expences only; and that, even the express promise to pay, being without consideration, could not aid the plaintiff. The learned judge expressed his opinion decidedly, that the action could not be maintained. The jury, notwithstanding, having found a verdict for the plaintiff; leave was given to the defendant, to move to set aside the verdict, and enter a nonsuit. Accordingly, Lens Serjt., on a former day, having obtained a rule nisi to that effect, Vaughan Serjt. and Bosanquet Serjt. now showed cause against the rule, and finding that the inclination of the Court was against the allowance of any compensation for a witness's time, contended, that as the defendant had actually received the money, under the charge of general expences, the plaintiff was entitled to recover it upon the count for money had and received, or, at all events, upon the defendant's express promise to pay. DALLAS C. J. There were in fact no expences, as the witness came but a short distance, and how could there be any consideration for a promise, when the witness was bound to remain to give evidence under his subpœna? PARK J. Compensation for loss of time in attendance as witness is only allowed to medical men and attornies. The The point has been settled in the King's Bench, by the 1820. Hullock Serjt. having on a former day, obtained a rule nisi for the prothonotary to tax the Defendant treble costs, according to 43 Eliz. c. 2. s. 19. Vaughan Serjt. now showed cause against the rule: where a party was entitled to damages at common law, if treble damages are given by statute, he shall have treble costs also: alitèr where, as in the present case, the party was not entitled to damages at common law, Okely v. Salter (a); and the statute of 43 Eliz. c. 2. s. 19. which is a penal statute, does not say the party shall have treble costs, but treble damages with his costs. The prothonotary refused to allow treble costs some years since, in the only case which has occurred of late years on this statute (b). Hullock Serjt. in support of his rule. The point relied on in Noy's report of Okely v. Salter, is not men (a) Noy. 137. S. C. Yelv. 176. (b) Hempson v. Josselyn, Dec. 15. 1798. Feb. II. The avowant in replevin on a distress for poor rates is only entitled under 43 Eliz. tioned 1820. BUTTERTON ข. FURBER. tioned in Yelverton, who says, that the statute of Eliz. is not penal, but to be construed largely in aid of charity. And in Lawson v. Story (a), a case turning on stat. 2 W. & M. sess. 1. c. 5. treble costs were given: the words of that statute are in substance the same as those of the statute of Eliz.* the party being allowed in the former his treble damages and costs of suit. In the case provided for by that statute, damages would have been recovered at common law, but, that circumstance is not noticed in the report, as having influenced the judgment of the court. DALLAS C. J. There seems to me to be no doubt on the construction of this statute, and still less on the case to which we have been referred. The question is, whether, where a statute gives treble damages in a case where none were recoverable at common law, treble costs are also to be intended; I see no ground for such a construction. The statute of Elizabeth says the party shall recover, not treble costs, but "his costs also." Treble damages constitute an enactment sufficiently penal, without adding treble costs. In the statute of William & Mary the expression is not the same: the word and may there be considered, as conjoining damages with costs; both the words and the collocation are different. The case in Noy is a direct authority against the Defendant. PARK J. I am of the same opinion. The words of the act are decisive; there is much better reason for the Defendant's argument, where the copulative and is em (a) Carth. 321. 1 Ld. Raym. 19. in that behalf, with his costs also, The words of the stat. of W.&M are "the person or per sons grieved shall recover his and their treble damages and costs of suit." ployed ployed in the statute, than where the words are put disjunctively, as in the act of Elizabeth. Even if the case in Lord Raymond was rightly decided, (which I don't say,) it does not apply to the present question, the words of the two acts being so different. BURROUGH J. of the same opinion. RICHARDSON J. In the case arising on the statute of William & Mary damages were recoverable at common law; here, we must rest on the words of the statute, which give the party treble damages with his costs. The report in Noy must be considered as accurate, notwithstanding the silence of Yelverton, as to one of the points mentioned. Rule discharged. 1820. BUTTERTON V. FURBER. GRILLARD V. HOGUE. Feb. 12. Under the 13 G. 3. 6.63. the court will court in India to examine VAUGHAN Serjt., on a former day, had obtained a rule nisi for a mandamus to the Court in India, to examine witnesses on behalf of the Defendant grant a manin this case. The application was founded upon damus to the stat. 13 G. 3. c. 63. § 44. which, (after reciting that his majesty's subjects were liable to be defeated of the witnesses on several rights, titles, debts, dues, demands, or suits, defendant in a for which they had cause arising in India, &c. and, for civil action. preventing such failure of justice,) enacts" that when and as often as the united company of merchants of England trading to the East Indies, or any person or persons whatsoever, shall commence and prosecute any action or suit at law, or in equity, for which cause has arisen, or shall thereafter arise, in India, against any VOL. I. other NN 1820. GRILLARD บ. HOGUE. other person or persons whatever, in any of his majes ty's courts of Westminster, it shall and may be lawful for such Court respectively, upon motion there to be made, to provide and award such writ or writs in the nature of a mandamus or commission to the chief justice, &c. &c. as the case may require, for the examination of witnesses as aforesaid, &c." Lens Serjt. now showed cause and contended, that the power of granting the writ to Defendants as well as Prosecutors, being only given by the 40th section, was, by that section, confined wholly to cases arising on indictment and information (a): And, that the 44th section, which related to civil cases, differed from the 40th both in wording and substance, and afforded the Court no authority to grant the writ on the application of the Defendant; nor was there any hardship in this; for, where it was necessary, the Court would stay proceedings on behalf of the Defendant. Vaughan and Taddy Serjts., in support of the rule, were stopped by the Court. DALLAS C. J. It would be most unreasonable, that a Defendant should not have this mandamus as well as a Plaintiff, but the first thing is to enquire, what the statute has provided; because, if the Defendant is thereby placed in a situation different from that of the Plaintiff, the Court cannot interfere. Upon the justice of the (a) 13 G.3. c. 63. which enacts that in all cases of indictments and informations laid or exhibited in the court of K. B. for misdemeanors or offences committed in India, it shall be lawful for the said court, on motion made on behalf of the prosecutor or de fendant, to award a writ of man damus to the chief justice and judges of the supreme court of judicature, &c. to hold a court for examination of witnesses, and receiving proofs concerning the matters charged in such indictments. case |