[witness, non-attendance – civil procedure]

Burdekin v. Gannon

Supreme Court of New South Wales

Dowling C.J., July 1841

Source: Sydney Herald, 27 July 1841

thomas burdekin v. michael gannon.

This was a special action on the case to recover damages for the defendant’s non-attendance as a witness in an action of assumpsit between the present plaintiff and one James Gannon, upon one Reynolds’s promissory note for £38, endorsed by James Gannon to the plaintiff, in which action the plaintiff was nonsuited, in March last, in consequence of the absence of the present defendant who had been served with a subpoena for the trial.

            The defendant pleaded the general issue and that he was not duly served with a subpoena.

            The plaintiff proved that before the trial, the defendant was served at his own house in Sydney with a copy of the subpoena, and was at the same time paid a shilling by the clerk who served him, who told him the nature of the subpoena, and who then held in his hand but did not show to the defendant the original subpoena: when he had been paid the shilling the defendant said “that he would not go for less than a guinea for any man.” The plaintiff’s attorney proved that James Gannon’s taxed costs in the former action amounted to £17 10s., and that the plaintiff’s costs in that action came to £19 18s. 7d.

            Upon this evidence the plaintiff closed his case.

            The counsel for the defendant applied for a nonsuit on the ground of the original subpoena not having been shewn to the defendant: but the Chief Justice held that though it were necessary in proceeding by attachment, that the original subpoena should have been shewn to the defendant, yet in an action on the case that formula was not necessary; but that, even if it were necessary, the defendant, by his conduct when served with the copy of the writ, and by the language which he had then used, had waived a more regular service of the subpoena. The defendant tendered no evidence, and under the direction of the Chief Justice, who told the Assessors that, as it was not proved that the plaintiff had lost his right of action on the note, he could only recover for costs of the action in which he had failed by the defendant’s default.

The Assessors found a verdict for the plaintiff for £37 8s. 7d., with costs.

            Counsel for the plaintiff, Mr. Foster and Mr. Windeyer; for the defendant, the Attorney General and Mr. Broadhurst; attorney for the plaintiff, Carr, Rogers, and Owen; for the defendant, Poole.