Collins v Godefroy [1831] EWHC KB J18 (01 January 1831)

A witness, Collins, was subpoenaed by Godefroy and promised payment for attending court. Collins sued for non-payment. The court held that performing a pre-existing public duty (attending court under a subpoena) is not valid consideration for a new promise.

Facts

The claimant, Collins, an attorney, was subpoenaed to attend a trial and give evidence on behalf of the defendant, Godefroy. Collins attended the court for six days as required by the subpoena but was ultimately not called to testify. Collins brought an action in assumpsit, alleging that Godefroy had promised to pay him one guinea per day as remuneration for his loss of time in attending. Godefroy failed to pay, and Collins sued to enforce the promise.

Issues

The central legal issue was whether a promise to pay a person, who is already under a legal obligation to perform an action, is supported by sufficient consideration to be legally enforceable. Specifically, can the performance of a pre-existing public duty (in this case, attending court under a subpoena) form the basis of a binding contract?

Judgment

The Court of King’s Bench held that the action was not maintainable, and the claimant was nonsuited. Lord Tenterden C.J. delivered the judgment, establishing a key principle of contract law regarding consideration. He reasoned that the claimant was already bound by law to attend the court, having been served with a subpoena. Therefore, his attendance did not constitute a detriment to him or a benefit to the defendant that was sufficient to be recognised as good consideration for the promise to pay. The performance of the existing legal duty was not enough to support the new promise.

Lord Tenterden C.J. stated:

If it be a duty imposed by law upon a party regularly subpoenaed, to attend from time to time to give his evidence, then a promise to give him any remuneration for loss of time incurred in such attendance is a promise without consideration. We are all of opinion that it is.

The court also raised public policy concerns, noting the potential for abuse if witnesses could demand payment for fulfilling their public duty. Lord Tenterden added:

We are aware of the practice which has prevailed in certain cases, of allowing, as costs between party and party, so much per day for the attendance of professional men; but that practice cannot alter the law. What the plaintiff is entitled to, is a reasonable and sufficient sum for his expenses, which he would have had upon application to the Court. If the plaintiff had said, that the defendant had requested him to be prepared with plans and documents, to make the evidence effective, the case would have been different. But the declaration is for loss of time, and that is not a good consideration.

Implications

This case is a foundational authority for the legal principle that the performance of an existing public duty does not amount to sufficient consideration to support a contract. It clearly distinguishes between fulfilling a legal obligation and providing something extra that goes beyond that duty. Had Collins been asked to do something additional, such as preparing specific documents or analysis outside the scope of his duty as a witness, that could have constituted good consideration. The decision solidifies an essential element of the doctrine of consideration, preventing individuals from extracting payment for duties they are already legally compelled to perform. It remains a cornerstone case in contract law, often contrasted with later cases like Glasbrook Bros v Glamorgan County Council [1925] AC 270, where the police were held to have provided services over and above their public duty, thus creating an enforceable contract for payment.

Verdict: The rule to set aside the nonsuit was refused; the verdict was in favour of the defendant.

Source: Collins v Godefroy [1831] EWHC KB J18 (01 January 1831)