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Decisions of the Superior Courts of New South Wales, 1788-1899

Doe dem. Fielder v. Donovan [1819] NSWKR 7; [1819] NSWSupC 7

evidence, witness expenses

Supreme Court
Field J., 2 June 1819
Source: Sydney Gazette, 5 June 1819

Mr. Amos shewed cause against Rule, which had been obtained by Mr. Garling, why he should not personally pay the expences of Christopher Frederick and his wife, two witnesses who had, at the trial of this cause last year, refused to give evidence until the payment of such expences had been promised them; and the question was whether this undertaking had been made by Fielder or by his Solicitor, Mr. Amos, personally.
Mr. Justice Field stated the law upon this subject to be that no witnesses, residing out of the town in which the Court sits, is compellable to obey the subpoena, unless his expences were tended with it; and even if he should appear in Court without having been repaid his expences, he may still refuse to be sworn till he has received them. In this case the witnesses had trusted to a promise; and their only remedy was by action against Fielder in the Governor's Court: for this Court was of opinion that the promise was not made personally by Mr. Amos, but by his client; and although that gentleman had charged for the expence of these witnesses in his bill of costs, yet that was to enable Fielder to recover them against the defendant with the verdict; and it appeared that Mr. Amos had never been paid this bill either by Fielder or by the defendant. Rule discharged.

Published by the Division of Law, Macquarie University