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the Lord Chief Justice, and other Judges of the Court of King's Bench, before I give a decided opinion.
Mr. Justice Park. It has been suggested by my Brother Lens, that in the case of duplicate originals, it would be highly inconvenient if a paper preserved might not be received in evidence, without a notice to produce that delivered. I think there is great weight in that observation. In an action against the drawer or indorser of a bill or note, it is in general necessary to prove that due notice of the dishonour has been given ; but I do not see that any inconvenience would arise by admitting the copy of a letter containing the noțice of such dishonour, without proving a notice to produce the original letter.
Mr. Justice BURROUGH and Mr. Justice RICHARDSON, concurred in thinking that there was not any valid or substantial distinction between a duplicate original and any other copy inade at the time, and authenticated on oath.
Cur. Ado. Vult.
Lord Chief Justice Dallas on this day delivered the judgment of the Court as follows :
In this case we see no reason to change the opinion we in part expressed when the question was last before the Court : but as a matter of general practice, we wished to collect the opinions of other Judges; and the result is, that the copy of an original letter, giving notice of the dishonour of a bill, is admissible, without notice to produce the original letter; and consequently, that the verdict found for the plaintiff must stand, and the rule to enter a nonsuit be
(a) See Phillips on Evidence, 5th edit. vol. I. 448--9; vol. II, 23.
ant as an
LOPES V. DE TASTET. May 17th. Where a decla- This was an action on the case. The declaration conration in case contained seve- tained fourteen counts, the first twelve of which were ral special counts, imput. special, imputing misconduct to the defendant as an to the defendce agent, in not having forwarded and expedited a ship and
cargo with dispatch from London to Gottenburgh; and agent, and the two last were
the two last were founded in troder, and contained allefounded in trover, and con- gations of special damage. The defendant pleaded not tained allega., guilty tions of special damage ; but At the trial of the cause, before Lord Chief Justice the plaintiff failed in sub
Dallas, at Guildhall, at the Sittings after Trinity Term, stantiating any 1819, the plaintiff failed in substantiating any of the of the special counts, and the special counts, as the first nine, and the eleventh, were jury found a verdict for him founded on an illegal consideration, and the tenth was generally on the counts in
not supported by the evidence (a); and the jury accordtrover, thereby ingly found a verdict for the plaintiff generally on the special damage counts in trover, for the mere value of the ship and cargo, alleged in these thereby negativing the special damage alleged in those first, that he
and all the other counts of the declaration. was only entitled to the costs of those counts divested of the The Prothonotary, on taxation, severed all the counts, special allegations contained and confined the plaintiff's costs to those parts of the therein, and the counts in trover on which he had recovered at the trial, expenses of such of the wit- refusing to allow any expenses incurred by himn in prowere incurred curing witnesses and correspondence to substantiate the to support that part of those counts on which the verdict was taken._Secondly, that a bro. ker was not entitled to a compensation for a loss of time. Thirdly, that the plaiotiff was entitled to the allowance of a sum sworn to have been paid by him for the postage of foreign letters, as being solely applicable to the cause; but that he was entitled to the expenses of the production and translation of such letters only as were applicable to such parts of the counts in trover as related to the verdict.-Where foreign witnesses appear to be domiciled in this country, they are not entitled to the expenses of their return home: and it seems that a witness is not entitled to his costs, unless they have been paid him previously to taxation.
(a) See ante, Vol. IV. 266.
special counts or allegations of special damage. He also refused to allow the expenses the plaintiff had been put to in producing letters and other documents in the Court of Chancery, a bill having been filed against him by the defendant in that Court; but he allowed the plaintiff the sam of sixteen guineas for the loss of time of sixteen brokers, who attended as witnesses at the trial. He also refused to allow the plaintiff the sum of 2001. stated to have been incurred by him in translating foreign letters, which were applicable to the carrying on the suit; as well as the sum of 3961. 16s. charged by the plaintiff for the postage of such letters. He also refused to allow 240l. for the lodging and sustenance of certain witnesses, which the plaintiff had engaged to pay as soon as he received the costs. He further refused to allow the expense of the return of the foreiga witnesses to their own country'; and would not allow one of them the sum of 5231., charged and demanded by him as for his expenses, and who was brought over to this country for the purpose of proving the value of the ship and cargo; on the ground that such sum had not been paid to the witness by the plaintiff or his attorney previously to the taxation.
Mr. Serjeant Lens, in the last Term, obtained a rule nisi on the part of the plaintiff, that the Prothonotary might review his taxation, and increase his allowance ; and submitted in the first place, that as the plaintiff had adduced evidence, and procured the attendance of witDesses at a considerable expense, as applicable to and in support of all the counts in the declaration, he ought to have been allowed the whole of such costs, as he was obliged to be prepared to meet all the circumstances of the case. Secondly, that he was, at all events, entitled to the expenses incurred by him in the production of letters in the Court of Chancery, and wbich the defendant
had given him notice to produce. Thirdly, that the plaintiff was entitled to a larger allowance than sixteen guineas for the loss of time of witnesses ; and that the allowance should not have been confined to brokers.; Fourthly, that he should have been allowed the sum incurred by him in the translation of foreign letters, as such translations were not only called for by the defendant himself, but were absolutely necessary; as in the late case of The King v. Goldstein (a), where a prisoner was convicted of forging a foreign instrument, the Judges, after argument in the Exchequer Chamber, ordered judgment to be arrested, as an English translation was not set out in any of the counts of the indictment, Fifthly, that the plaintiff was clearly entitled to the postage of such letters as were applicable to the cause. Sixthly, that he was entitled to the sum which he had engaged to pay for the board and lodging of certain specified witnesses. Seventhly, that he should have been allowed for the retuen voyage of the foreign witnesses, as it was absolutely necessary that they should go back to their own country after the trial. And lastly, that the sum demanded by one of them, who was a most material witness, should not have been altogether disallowed by the Prothonotary, as he should have calculated what allowance he was fairly entitled to receive, and made the deduction accordingly.
Mr. Serjeant Vaughan obtained a like rule on behalf of the defendant, on the ground, that the Prothonotary had allowed costs to the plaintiff to which he was not entitled ; and more particularly so, the costs for the loss of time of the brokers, who attended as witnesses on his bebalf; and in the course of this Term shewed cause, with Mr. Serjeant Bosanquet, against the rule obtained
(a) Ante, page 1.
by Mr. Serjeant Lens. They submitted, that the Prothonotary had most properly confined the plaintiff's costs to those parts of the counts in troder, on which the verdict had been taken at the trial, the jury having thereby negatived all the special counts, as well as the special damage con. tained in those two latter counts. The rule applicable to a case of this description was most properly laid down by Lord Eldon, in Penson v. Lee(a), viz. that where a declaration consists of different counts, upon some of which a verdict has been found for the plaintiff, he is entitled to the costs of those counts only which are found for him, and so much of the expenses of the trial as were necessarily incurred by him in support of such counts. It is true that a peculiarity exists in this particular case, as the verdict was taken on the counts in trover generally, although they contained allegations of special damage ; but if the costs of the witnesses who attended to prove that damage were to be allowed, a plaintiff might introduce an unlimited number of counts, and subpoena witnesses to prove them, though he knew he had no right: whatever to recover on them. So the notices to produce letters in the Court of Chancery were only given with reference to the special counts, and the translation of them could only be connected with those counts :' and as the plaintiff obtained a general verdict, as in a mere action of trover, the contract between the parties, for the breach of which the misfeazance of the defendant is said to have arisen, is entirely out of the question, as well as the special damage which the plaintiff alleged had accrued to him thereby. As to the allowance for the loss of time of the brokers, who attended as witnesses for the plaintiff, it is quite clear that it ought not to have been allowed, as such allowance must be confined to persons in the legal and medical professions alone. Severn v. Olive(6),