Fryer v Sturt
| Jurisdiction | England & Wales |
| Judgment Date | 08 May 1855 |
| Date | 08 May 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 740
IN THE COURT OF COMMON PLEAS AND EXCHEQUER CHAMBER
S. C. 24 L. J. C. P. 154.
[218] fryer v. sturt. May 8, 1855. [S. C. 24 L. J. C. P. 154.] A cause was referred at the assizes at about three o'clock in the afternoon,-the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitration commenced at six o'clock the same evening, and all the witnesses were examined before twelve o'clock that night. The award was ultimately made in favour of the defendant, to whom the costs of the action were ordered to be paid, each party paying his own costs of the reference and a moiety of the expenses of the award :-Held, that a witness who did not arrive at the assize town until half past ten o'clock in the evening of the day of the trial, was not properly chargeable as a witness in the cause.-Where a cause at the assizes is over at three o'clock in the afternoon, the witnesses may reasonably be allowed the following day for their return home, though their place of residence be distant only about fifty miles, and accessible by trains on the same evening. Notice of trial in this case was given for the Summer Assizes at Winchester in 1854. The commission day was Tuesday, the llth of July. The cause was called on for hearing on the morning of the 13th, when, pending the examination of the plaintiff, who was the first witness,-viz. about three o'clock in the afternoon,-it was agreed that the cause should be referred,-the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator proceeded with the reference that same evening at six o'clock, and had heard all the evidence by half-past eleven; and he ultimately made an award in favour of the defendant, and thereby ordered the plaintiff to pay to the defendant his costs of the action, and that each party should bear his own costs of the reference and a moiety of the costs of the award. One Pyne, a witness for the defendant, arrived at Winchester at about half past ten o'clock on the night of the 13th of July, whilst the reference was proceeding. He had been subposnaed as a witness on the trial, and it was sworn that he was a material witness; but he was not examined. Upon the taxation of the costs, the expense of Pyne's attendance was allowed as part of the costs of the cause. The master also allowed for the attendance of certain other witnesses for three days, viz. the 12,th, 13th, and [219] 14th of July, though it was submitted that there was ample time for their return to Poole, the place from which they came (which was distant about fifty-six miles by railway from Winchester), on the 13th, there being three trains for that place after the cause was agreed to be referred, viz. at 4.50, at 6.28, and at 7.8, by either of which the witnesses might have got home by a reasonable time that night; and, consequently, that, as they stayed at Winchester for the purpose of the reference only, the expense of their attendance for the additional day ought not to be allowed as costs of the cause. Temple, on a former day in this...
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