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

An attorney attended court for six days as a subpoenaed witness but was not called to give evidence. He sued for compensation for his loss of time. The court held that attendance as a witness under subpoena is a legal duty, so no action lies for compensation as there is no consideration for any promise to pay.

Facts

The plaintiff, Collins, was an attorney who was subpoenaed to attend as a witness in the civil case of Godefroy v. Dalton. He attended court for six days but was never called to give evidence. Collins subsequently demanded six guineas from Godefroy as compensation for his attendance and loss of time. When payment was not forthcoming, Collins commenced an action to recover this sum.

The defendant, Godefroy, had previously applied to the Court of King’s Bench to stay proceedings upon payment of six guineas without costs, which was made absolute upon payment of six guineas plus costs. However, Godefroy did not pay the costs pursuant to the rule and instead pleaded the general issue.

Issues

The central legal issue was whether a witness who has attended court under subpoena in a civil suit can maintain an action against the party who subpoenaed him for compensation for loss of time.

Plaintiff’s Arguments

Counsel for the plaintiff argued that attending as a witness in a civil suit confers a benefit on the individual party rather than discharging a public duty, and therefore the law should imply a promise to compensate for loss of time. They also argued that the defendant’s offer to pay the six guineas constituted evidence of an express promise.

Defendant’s Arguments

Counsel for the defendant contended that it is a duty imposed by law on all persons to attend and give evidence in courts of justice, and therefore the law will not imply a promise to remunerate a witness. Furthermore, any express promise to pay for performance of such a duty would be void for want of consideration.

Judgment

Lord Tenterden CJ delivered the judgment of the court, holding in favour of the defendant.

Assuming that the offer to pay the six guineas without costs was evidence of an express promise by the defendant to pay that sum to the plaintiff as a compensation to him for his loss of time, still, if the defendant was not bound by law to pay that sum, the offer to do so, not having been accepted, will not avail the plaintiff.

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 think that such a duty is imposed by law.

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.

The court discharged the rule and the plaintiff’s nonsuit stood.

Implications

This case established an important principle in contract law regarding consideration. A promise to pay for the performance of an existing legal duty owed to a third party (in this case, the state) does not constitute valid consideration for a contract. Since witnesses are legally obligated to attend court when subpoenaed, any promise to compensate them for doing so lacks the necessary consideration to be enforceable.

The decision has been influential in shaping the doctrine that performance of a pre-existing public duty cannot constitute consideration for a new promise. It remains a foundational authority on the requirement for fresh consideration in contract formation.

Verdict: The plaintiff was nonsuited and the rule to enter a verdict for six guineas was discharged. The defendant succeeded in his defence.

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