Dodge v. Stiles

26 Conn. 463 | Conn. | 1857

Ellsworth, J.

The statute regulating salaries and fees, provides that the fee of a witness shall be thirty-four cents a day for attendance, and five cents a mile for travel. This is all the remuneration he is entitled to for this service; and any attempt directly or indirectly to secure more, is against the language and policy of the law. If more is paid, it cannot be recovered back; but no greater payment can be exacted or enforced. The same rule prevails in civil and criminal trials, and is of no inconsiderable importance.

What is true of a witness is true of every officer of the government whose duties and compensation are fixed by statute; whether the executive, the judges, sheriffs, commissioners or others. Their compensation is specific, for certain official services, and in no way, covertly or openly, can more be recovered by process of law. Were it otherwise, and witnesses might be allowed to make terms for testifying, there would be room for oppressive conduct, and for corruption. Witnesses, knowing that their testimony was indispensable, would, under one pretence or another, make terms for their testimony, and such as might be induced to represent their testimony as important, would be tempted to barter their oaths at the expense of truth and justice. Now, a promise to pay more than the statute fees for just this statute service, without further service or loss by the wifness, may be said to be without consideration. It can not be important in our view, whether the promise be made after the service of the subpoena, eo-temporaneously with it, or before, provided the promise refers to this duty and is founded on no other consideration. There may be a further consideration, in ■ which case an executory promise for extra compensation will be upheld; as if the witness was about going abroad at the time he may be wanted to attend court, and agrees that he will remain and give up his journey and is summoned ; or living at a distance from the place of the court, more than twenty miles, so that his deposition could be taken, agrees that he will attend in person. In these and the like cases the promise is one for indemnity, and is founded on a new and meritorious consideration, and is good. But the present case is not of that character; at least it is not shown to be, as should have been done, if it is claimed to be so. On the other hand, we are satisfied from a fair construction of the motion that there was no new and further consideration for the promise for extra compensation. It is the usual case of a witness liable to be summoned and compelled to appear and testify, making terms to suit himself. Whatevér an honest or honorable man will or ought to do in such cases, the law will not interpose, having for itself fixed the entire legal fees for the performance of the entire legal duty.

If a witness agrees with a party, that he will attend and testify without being summoned, and he is not summoned and so not brought under the order or censure of the court, W*e suppose any reasonable promise for compensation is good and may be enforced; for the proceeding or service is not under nor in pursuance of the statute.

It is said that the statute fees for witnesses are inadequate and insignificant, and that the party ought to be allowed to pay his witnesses what he pleases. So he may, and more than he has agreed to pay, if it is his choice; but this does not reach an executory contract, where the witness is summoned, and paid his legal fees, and where there is no extra service rendered as in the present case.

There is a reason why witnesses’ fees should be fixed by law, and at a moderate sum, lest poor suitors should be unable to seek redress, and witnesses be tempted to lean toward wealth and power. The present rate may be too low; we think it is; but much may be said in favor of a cheap and equal administration of the law. Many years since, when I happened to be a member of the state senate, a bill was introduced to allow witnesses one dollar a day, but it met with little favor, and after considerable debate was laid on the table and ultimately lost. The present inadequate allowance is, in practice, much less objectionable than would be supposed at first thought, for parties generally find it for their interest to take good care of their witnesses. In England the party is obliged to provide for them during the trial, and the amount goes into the bill of costs. There, too, professional witnesses who are called to testify as experts, are entitled to an extra remuneration. Whether the rules of the English courts are better than ours, or whether ours need alteration, are not questions properly addressed to this tribunal.

We advise that the plaintiff’s charge of §38 for attendance as a witness be disallowed, and judgment rendered for the plaintiff for the balance.

In this opinion the other judges concurred.