C. A. 1908 TORONTO CREAM AND BUTTER COMPANY, LIMITED, v. THE CROWN BANK. Meredith, J.A. purpose of Parliament to prevent frauds and perjuries; it would open a wide door to them; and it is very difficult to convict of false swearing as to mere intentions. I, of course, have no reference to this case, in these observations, but of the subject generally. Each of the two cases, which were referred to at the trial as well as in this court, was decided upon its facts, and therefore, to that extent, is not a binding authority in this or in any other court; but, so far as either enunciates or discloses any principle applicable to transactions such as that in question, it is distinctly against the defendants. In the O'Reilly case, as I understand it, it was found as a fact that the giving of the notes, the payment of the considerations for them, and the giving of the securities, were all in substance and in truth contemporaneous, just as much as if the consideration had been handed over in money at the time, and the makers had chosen to deposit it and drawn upon it in the ordinary course of their business. The facts of that case are very obviously different from those of this case. In this case there is nothing whatever to warrant any such conclusion; there was no sort of receipt of the consideration, no sort of actual loan of the money, nor was even a farthing of it appropriated to the plaintiffs' use or received by them, nor, indeed, were they in any manner benefited by it; it was for all substantial purposes, so far as any benefit went to them, just as if the transaction had not taken place. In regard to the other case-Halsted's-in all essential circumstances it seems to me to have been quite the same as this case, and, indeed, the same in all its circumstances, material or not. The language of the judgment of the court of first instance, approved of and adopted by the Supreme Court of Canada, is singularly applicable to this case; much of it might be incorporated here word for word, to the very much better elucidation of my views than anything I have said; but I forbear, as the report of it, in its entirety, is readily accessible to all concerned in this case. It was urged that that case was different from this because there the debtor could not have drawn one farthing of the loans without the consent of the bank. As I have before intimated, that is not the essential question; the essential question is, did the debtor, in substance and in fact, receive the consideration at the time? And in this view of the enactment I am, I think, entirely in accord with the views expressed in that judgment. But, in substance and in fact, the debtors were in this case, quite as much as in that, wholly unable to draw, or obtain by any legal means, one farthing of the amount of the note in question without the consent of the defendants. In what possible manner could they? Even if it had been more than the intention, if it had been the expressed agreement that they should be paid the money, it was entirely within the power of the defendants to withhold it and appropriate it towards the payment of the much larger overdue indebtedness of the plaintiffs to them; to set it off pro tanto against such larger indebtedness. If Halsted's case were well decided, how can the defendants succeed on this branch of the case? Indeed, this is a stronger case against them, for in that case it appears that, after the making of the notes and giving of the securities and carrying the amounts of the notes to the debtors' credit in the books of the bank, he drew from that account amounts equal to the amounts of the notes; in this case there were no such receipts by the plaintiffs, but they gradually reduced the amount of their indebtedness to the defendants until their failure. I would allow the appeal, and direct that judgment be entered for the plaintiffs, and damages in the amount of the proceeds of the sale of the goods in question, leaving the judgment dismissing the counterclaim to stand. The defendants should pay the costs of the action and of the appeal. But, if the plaintiffs desire to do so, I would give them leave to amend as far as may be necessary for the adding, in the usual manner, as plaintiffs, the official receiver of the plaintiffs, the legal representative of Clark, and a creditor suing in behalf of himself and other the creditors of Clark, and also Mrs. Clark, and a creditor so suing as to her, or any one or more of them; but if any such amendment be made, then I would make no order as to costs of the action or appeal, but would leave the parties to pay their own costs respectively. All parties substantially interested in the one substantial matter in question are now substantially before the Court the defendants on the one side and all the other creditors represented by the official receiver, who is carrying on this action, on the other side; so that it seems to me inexcusable to permit another action to be brought, and to proceed, at great cost, over precisely the same grounds. C. A. 1908 TORONTO CREAM AND BUTTER v. THE CROWN BANK. Meredith, J.A. G. F. H. 1908 March 19. [IN CHAMBERS.] BOYLE ET AL. V. ROTHSCHILD ET AL. Costs-Taxation-Witness Fees-Foreign Witness-Employee of Party to $1,000, with $510 for expenses, allowed as witness fees for a Dominion land The Court refused to allow a similar sum to another witness from the Yukon who was in the employ of the party litigant calling him: only $630, inclusive of expenses, being allowed in his case. When a party to an action is a necessary and material witness on his own behalf, he is entitled, if the taxing officer is satisfied of such fact, to tax for himself the same witness fees as if he were not a party, but the taxing officer can take no notice of abortive attempts to bring the case to trial. THIS was an appeal by both parties from the decision by the local registrar at Sandwich in respect of certain witness fees under the circumstances set out in the judgment. The appeal was argued before RIDDELL, J., in Chambers, on March 17th, 1908. L. G. McCarthy, K.C., for the plaintiffs. March 19. RIDDELL, J.-The action was a very important one, involving half a million of dollars. It was tried before me at Sandwich, and resulted in a judgment for the plaintiff for $500,000. Upon the taxation of costs, the local registrar allowed as witness fees: 1. For C. S. W. Barwell, $1,020; the plaintiff claims $1,760. 2. For Chas. Boyle, $630; the plaintiff claims $1,760. 3. For plaintiff Joseph Boyle, $22.50; the plaintiff claims $300. Upon these three items the plaintiff appeals, and as to the last the defendants also appeal, claiming that no allowance should have been made. The local registrar also allowed: 4. For A. N. C. Tredgold, $500; the defendants claim that this is excessive. 1. As to the Barwell fees, it appears on affidavit that he is a Dominion land surveyor (at the trial it further appeared that he practises as a civil engineer, residing in the Yukon Territory); that in matters of ordinary business persons in his profession charge $35 or $50 a day, according to the length of time they are employed; and that the Courts in the territory allow $25 a day fees for such a person; that he (B.) made a contract with the representative of the plaintiff that he was to receive $1,000 professional fee and all his travelling and living expenses until his return to the Yukon, and that he would not have attended the trial for any less sum. It further appears that before the representative of the plaintiff closed with Barwell on these terms, he consulted a prominent barrister in the Yukon Territory, and that barrister said that he thought the terms exceedingly reasonable, and advised his client to accept them at once. The local registrar has allowed only $510 of the $1,000 charged; and, while the witness was paid $510 for travelling expenses and $250 for expenses, the local registrar has allowed for the two $510. I think the case of Ball v. Crompton Corset Co. (1886), 11 P.R. 256, covers this matter. "The guiding rule in such cases is thus expressed in Morgan on Costs, 2nd ed., p. 43: 'If a foreign witness, who is not accessible by subpoena, but whose evidence is material in the case, refuses to leave his house unless he is remunerated for his trouble, the compensation paid to him, if reasonable in amount, will generally be allowed and taxed against the losing party.'" Admittedly the time of the absence of the witness from home is not less than 51 days; there is no evidence upon which it could be held that $1,000 and expenses would not be a reasonable, but an excessive, amount, and unless there exist some good reason for disallowing the amount, it should be taxed. I have refreshed my recollection of this witness's evidence at the trial, and I am clear that it would not have been safe for the plaintiff not to have had his evidence; and I am equally clear that it was reasonably necessary to have him in person at the trial, and not rely upon evidence to be taken on commission. The appeal will be allowed. Then, as to the amount, the travelling expenses and living expenses have been allowed at $510. Upon the evidence before me I see no reason to change this. The amount of witness fees for this witness then will be $1,000+$510=$1,510. 2. Charles Boyle is the brother of the plaintiff, and in his employ at a salary of $5,000 per annum, "paid by the year." He was called by the plaintiff from the Yukon to give evidence at the trial, and the plaintiff "allowed him for three months' 28-VOL. XVI. O.L.B. Riddell, J. 1908 BOYLE v. ROTHSCHILD. Riddell, J. 1908 BOYLE บ. ROTHSCHILD. wages." He was taken from his work at the Yukon, where he otherwise would have been employed, and brought to Ontario to give evidence at the trial of this action. I cannot see that this is at all like the case of Barwell. This witness was at the call of the plaintiff, and obeyed the call. It is not the case of a foreign witness refusing to come except he were paid certain remuneration. No doubt the plaintiff lost a substantial amount of service by the absence of his servant from his work, but so does every business house unfortunate enough to be drawn into litigation and obliged to have clerks or employees attend a trial, and so neglect their regular work. The appeal will be dismissed. 3. The position of a party litigant who gives evidence on his own behalf is, perhaps, not wholly satisfactory. At the common law there was no right to costs, although it is said that the expenses a plaintiff was put to in asserting a just claim was taken into consideration in fixing the damages. Beginning with the statute of Gloucester (6 Edw. I. ch. 1) a number of statutes provided that the successful plaintiff should have costs, and later the case of a successful defendant was provided for. But it never has been the theory of the law that all the expenses a litigant may incur shall be paid by the losing party. A successful litigant attending the trial, when he is not a necessary and material witness, cannot charge his expenses to the other side. Until a comparatively recent date a litigant could not give evidence at the trial. He might, and often did, attend to direct, consult, advise, observe, but he could not charge his unsuccessful opponent with his expenses for so doing. When the change was made permitting the litigant to give evidence, the Courts in England held that if the litigant was a necessary and material witness, he might and should be allowed expenses, etc., on the taxation of costs. The change allowing (except in special named cases afterwards provided for by (1869) Imp. 32 & 33 Vict. ch. 68) parties to an action to give evidence on their own behalf came into force August 7th, 1851, Imp. 14 & 15 Vict. ch. 99, after an experiment of allowing such evidence in certain courts (1846) Imp. 9 & 10 Vict. ch. 95, had proved successful. In an action in which the writ was issued the very next month after the passing of the Act Imp. 14 & 15 Vict. ch. 99, and tried in the following January, the plaintiff was called |