Volume 1

The principles and practice of medical jurisprudence / by the late Alfred Swaine Taylor.

  • Taylor, Alfred Swaine, 1806-1880.
Date:
1910
Catalogue details

Licence: Attribution-NonCommercial 4.0 International (CC BY-NC 4.0)

Credit: The principles and practice of medical jurisprudence / by the late Alfred Swaine Taylor. Source: Wellcome Collection.

Provider: This material has been provided by The University of Leeds Library. The original may be consulted at The University of Leeds Library.

    44/976 (page 24)
    The neglect of this simple precaution often leads to much disappoint- ment and inconvenience, if nothing worse. Without a subpcena, or without some written contract as above, no witness is bound to appear. The editor has frequently been asked questions relative to the authority which a subpoena carries. The following cases and decisions will be seen to cover tbe whole ground in this respect. The most recent one in 1904 seems to uphold the others. In Betts v. Clifford (Warwick Lent Ass., 1858) Lord Campbell stated, in answer to a question, that a scientific witness was not bound to attend upon being served with a subpoena, and that he ought not to be subpcenaed. If the witness knew any question of fact he might be compelled to attend, but he could not be compelled to give his attendance to speak to matters of opinion. In Rich V. Pierpoint, an action for malpraxis, Lee was summoned against his will to give evidence on the part of the plaintiff. He stated that on the evening before the trial a solicitor called on him and left a subpoena with him. Lee would not hear any account of the case which the solicitor proposed to give, and expressed his resolution to have nothing to do with the trial. The solicitor informed him that he would be required to pay the usual penalty if he did not attend. He went to Kingston, and was warned not to leave the court until the trial was over. He heard the evidence on the part of the plaintiff, and upon this and the medical evidence he gave his opinion, not much in favour of the party who summoned him and not much against him. Lee considered that he could not avoid attending the trial under these circumstances {Med. Times and Gaz., 1862, 1, p. 389). In the case of Wehh v. Page (Carrington and Kirwan's Eep., p. 23) Maule, J., ruled as follows: There is a distinction between the case uf a man who sees a fact and is called to prove it in a court of law and that of a man who is selected by a party to give his opinion on a matter on which he is j)eculiarly conversant from the nature of his employment in life. The former is bound, as a matter of public duty, to speak to a Jact which happens to have fallen within his own knowledge ; without such testimony the course of justice must be stopped. The latter is under no such obligation ; there is no such necessity for his evidence, and the party who selects him must pay him. In the case referred to a skilled witness had been subpoenaed, but refused to give evidence unless first paid for his services and loss of time {Med. Times and Gaz., 1862, 1, p. 432). A barrister, who quotes this ruling, goes on to say : There is one reason why I should not advise any person in the position of a skilled witness totally to disregard a subpoena. It is quite clear that should such a' person fail to attend a trial no attachment could issue, even if he were called, as is usual, upon the subpoena, because the party subpoenaing him could not make the requisite affidavits that he was damnified by the witness's absence, and in what respect. But such party might bring an action for damages; and although he would recover none, he might not only worry, but might even put the defendant to a considerable expense, as taxed costs by no means include the entire costs in such cases. Although, therefore, I could not advise a total neglect of the subpcena, the safest course would be to obey it, and demand expenses before givmg evidence. Such expenses would be only those allowed for a