CHAPTER XXVIII.

COMPENSATION OF WITNESSES.

§ 306. Of Ordinary Witnesses.

§ 307. Of Experts.

§ 306. Of Ordinary Witnesses. We have already seen that the prepayment of fees is a prerequisite to the right to compel the attendance of a witness or punish him for failure to attend. The subjects of the amount of fees to which a witness who obeys the subpoena is entitled for attending; for his travelling expenses in coming and going; for his disbursements while in attendance; and many other matters connected with these, are regulated by statute in the several jurisdictions, and the decisions are, for the most part, merely constructions of the provisions of such local statutes. Any attempt to extract from them principles of general application would be next to futile, owing to the difference in character of the statutory provisions, but the cases have been carefully collated, and will be found cited below, arranged according to their particular subject-matter, and in the alphabetic order of the states.2

1 Supra § 302, subd. 3.

2 Right to fees, generally. Russell v. Ashley, Hempst (Ark.) 546; Dodge v. Stiles, 26 Conn. 463; Angell v. Union County, 8 Bradw. (Ill.) 244; Ellison r. Stevenson, 6 T. B. Mon. (Ky.) 271; Hutchens v. Eden, 3 Har. & M. (Md.) 101; Farmer v. Storer, 11 Pick. (Mass.) 241; Mathes v. Bennett, 21 N. H. 204; Hurd v. Fogg, 22 N. H. 98; Ford r. Monroe, 6 How. (N. Y.) Pr. 204; De Benneville v. De Benneville, 1 Binn. (Pa.) 46; Lagrosse v. Curran, 10 Phil. (Pa.) 140; Price v. McGee, 1 Brev. (S. C.) 455; Rice v. Palmer, 2 Bail. (S. C.) 117; Taylor v. M'Mahan, Id. 131; Johnson v. Wideman, 1 Cheves (S. C.) 26; Gray v. Alexander, 7 Humph. (Tenn.) 16; Davis v. State, 3 Lea (Tenn.) 376; Hardy v. De Leon,

7 Tex. 466; Sapp r. King (Tex.) 1 S. W. Rep. 466.

Attendance fee. Leigh v. Hodges, 4 Ill. 15; Re Thomas (Kan.) 1 Dill. (U. S.) 420; Brown e. Moore, 3 J. J. Marsh. (Ky.) 306; Kennedy v. Wright, 34 Me. 351; Ogden v. Gibbons, 2 South (N. J.) 518; Willink v. Reckle, 19 Wend. (N. Y.) 82; Anonymous, 3 Hill (N. Y.) 457; Re Corwin, 6 Abb. (N. Y.) N. Cas. 437; Carpenter v. Taylor, Term. Rep. (N. C.) 265; Holden v. Shore, 1 R. I. 287; Barton v. Bird, 1 Overt. (Tenn.) 66; Hopkins v. Waterhouse, Yerg. (Tenn.) 230; Hodges v. Nance, 1 Swan (Tenn.) 57; Albright v. Corley, 54 Tex. 372.

Mileage, or travel fee. Anonymous, 5 Blatchf. (U. S.) 134; Anderson r. Moe, 1 Abb. (U. S.) 299; The Sunny

As a general rule witnesses are not

compensated for loss of time, merely, but the case of an expert witness would seem to differ from that of an unprofessional witness called simply to depose to matters of fact. The expert is summoned to speak to a matter of opinion, depending on his skill in a particular profession or trade; the ordinary witness is bound, as a matter of public duty, to speak to the fact which has occurred within his knowledge; but the expert is under no such obligation, and is selected by the party to give his opinion merely; and he is entitled, therefore, to demand a compensation for loss of time.2

In some of the states extra compensation to experts is provided for by statute: such is the case in Iowa, North Carolina, Rhode Island,5 and possibly some other states. In Indiana, on the other hand, experts are compellable, by statute, to depose to their opinions without extra compensation. In the absence of statutory provisions, extra compensation paid to an expert witness cannot be taxed in the bill of costs, but is a disbursement to be borne by the party calling such witness."

The true rule seems to be that while an expert, like any other witness, may be compelled to attend and testify to any facts within his knowledge, without the payment or promise of extra compensation, yet he cannot be compelled to make any preliminary investigation of the facts involved, in order to prepare himself to give a professional opinion.8 But the

Binn. (Pa.) 414; Sherman v. Brown, 4 Yerg. (Tenn.) 561; Barton v. Bird, 1 Overt. (Tenn.) 73.

Witness' right of action for compensation. Hill v. White, 1 Ala. 576; Burns v. Howard, 68 Ala. 352; Crozier e. Berry, 27 Ga. 346; Worland v. Outten, 3 Dana (Ky.) 477; Holbrook v. Cooley, 25 Minn. 275; Leighton v. Twombly, 9 N. H. 483; Fuller v. Mattice, 14 Johns. (N. Y.) 357; Baker e. Brill, 15 Johns. (N. Y.) 260; Watts v. Van Ness, 1 Hill (N. Y.) 76; Stanly v. Hodges, Cam. & N. (N. C.) 330; Sweany v. Hunter, 1 Murph. (N. C.) 181; Belden v. Snead, 84 N. C. 243; Strein . Zeigler, 1 Watts & S. (Pa.) 259; Utt v. Long, 6 Id. 174; Bagley v. Clement, 2 McCord (S. C.) 244; Wetherspoon e. Killough, Mart. & Y. (Tenn.) 38; Harris v. Coleman, 8 Tex.

278; Flores v. Thorn, Id. 377; Crawford r. Crain, 19 Tex. 145.

1 Collins v. Godefroy, 1 Barn. & Ad. 957; Lonegan v. Roy. Exch. Co., 7 Bing. 731.

2 Webb r. Page, 1 Car. & K. 23. 3 Code 1873, § 3814. See Snyder r. Iowa City, 40 Iowa, 646.

4 Laws 1871, ch. 139, § 13.

5 Pub. Stat. 1882, p. 733, § 15.

6 Rev. Stat. 1881, p. 94, § 504. But see Buchman v. State, 59 Ind. 1; Dills v. State, Id. 15, 23.

251.

7 Mask v. City of Buffalo, 13 Rep.

8 Gaston v. Board of Comm'rs, 3 Ind. 497; Lyon v. Wilkes, 1 Cow. (N. Y.) 591; Summers v. State, 5 Tex. App. 374. In People v. Montgomery (13 Abb. (N. Y.) Pr. N. s. 207) it is held that "a witness meets the require

question whether an expert can be compelled to testify to his opinion based upon the researches made by him in the ordinary course of his professional study and investigation, and not upon any special examination of the facts of the particular case, must still be regarded as an open question, it being impossible to harmonize the decisions relating to it.1 In England extra compensation is allowed,2 and both there and here the theory on which such allowance is founded is, that professional and scientific knowledge is property which the public have no right to condemn to their own use without making suitable compensation therefor; though some of the cases proceed on the idea that it is loss of time only that should be compensated for, and that the expert should be paid more than the non-expert, because his time is of greater value. This latter theory has been deemed a hard one, and whether it can stand the test of examination is considered doubtful.4

ments of a subpœna if he appears in court when required to testify, and gives proper impromptu answers to such questions as are then put to him. He cannot be required by virtue of the subpoena to examine the case, to use his skill and knowledge to form an opinion, nor to attend, hear and consider the testimony given, so as to be qualified to give a deliberate opinion on a question of science arising upon such testimony: hence, a professional witness, called as an expert, may be paid for his time, services, and expenses; and the question what amount is paid cannot, in the absence of anything to show bad faith, affect the regularity of the trial, though it may, perhaps, affect his credit with the jury. It is not improper for the district attorney to procure the attendance of skilled witnesses in appropriate cases, for a special compensation; nor will the fact that an expert attended and testified at his instance, under agreement for compensation. which was unknown to the defence until after witness' testimony was closed, be an irregularity affecting

the verdict." This case was followed in Buchman v. State, 59 Ind. 1, and Dills v. State, Id. 15. S. P., Harvey v. Evansville &c. Steam Packet Co., 8 Biss. (U.S.) 99; Le Mere v. McHale, 30 Minn. 410.

1 Writers on medical jurisprudence, for obvious reasons, take the negative side of this question (Beck Med. Jur. 920, 921; Ordronaux Jurisp. Med. §§ 114, 115), as do also the following legal adjudications: Matter of Roelker, 1 Sprague (U. S.) 276; Buchman v. State, supra; U. S. v. Howe, 12 Cent. L. J. 193.

The following cases adopt the affirmative view of the proposition stated in the text: Ex parte Dement, 53 Ala. 389; Sumner v. State, 5 Tex. App. 374; Wright v. People, 2 Lan L. Rev. (Pa.) 379.

2 Webb. v. Page, 1 Car. & K. 25; Parkinson . Atkinson, 31 L. J. C. P. N. S. 199; Turner v. Turner, 5 Jur, N. s. 839.

3 See Lonergan v. Royal Exchange Assurance, 7 Bing. 725, 727; Collins r. Godefroy, 1 Barn. & Ad. 930. 4 Rogers Exp. Test. § 194.