Case Facts
The claimant was an attorney who was subpoenaed by the defendant to attend as a witness in the civil action of Godefroy v Dalton [1830], a suit concerning alleged negligence and unskilfulness by Dalton as an attorney in the conduct of proceedings before the Court of Common Pleas. The claimant duly attended court for six days in compliance with the subpoena but was never actually called to give evidence. The defendant ultimately obtained a verdict in that underlying action, which the Court of Common Pleas subsequently set aside.
On 2 November 1829, the claimant demanded six guineas from the defendant as his regular attendance fee, allowing the defendant until the end of the following day to make payment. The defendant's response was that he believed the sum had already been paid by his then-attorney. When no payment was forthcoming, the claimant commenced his action on 3 November 1829, seeking to recover the six guineas as compensation for loss of time.
At trial before Lord Tenterden CJ at the London sittings, the claimant was nonsuited. Lord Tenterden held that, as a matter of law, the claimant was bound to attend and give evidence pursuant to the subpoena, and was therefore not entitled to recover any sum. Liberty was reserved to move to enter a verdict for six guineas, and the matter came before the Court of King's Bench on that basis.
Held
The nonsuit was upheld. The court held that a person who has attended as a witness in compliance with a subpoena cannot maintain any action for compensation for loss of time against the party who subpoenaed him. Because attendance in response to a subpoena is a duty imposed by law upon all persons, the law will not imply a promise to remunerate such attendance. Furthermore, any express promise to pay compensation for the performance of that legal duty is void for want of consideration.
Ratio Decidendi
The foundational principle established by this case is that performance of an existing public legal duty cannot constitute valid consideration for a contractual promise. Where a person is already obliged by law to do something, doing that thing confers no benefit on the promisor and involves no detriment to the promisee beyond what the law already demands. Accordingly, a promise made in return for nothing more than the performance of that pre-existing duty is unenforceable.
Obiter Dicta
The court acknowledged the practice of allowing some measure of compensation for loss of time to medical men and attorneys when party-and-party costs were being taxed. However, the court was clear that taxation practice cannot make the law.