APPENDIX. 177 



for without such testimony the course of justice must be 

 stopped. The latter is under no such obligation j there is 

 no such necessity for his evidence, and the party who selects 

 him must pay him." In the case referred to by Mr. Justice 

 Maule, a skilled witness had been subpoenaed, but he re- 

 fused to give evidence unless first paid for his serv'ices and 

 loss of time {Medical Times and Gazette, April 26, 1862, 

 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 

 subpcKna. 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 subpcena, 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 subpoena, the safest course would be to 

 obey it, and demand expenses before giving evidence. Such 

 expenses would be only those allowed for a professional 

 witness (not special fees) ; but if the person so subpcenaed 

 were willing to run the risk of an action, he might safely 

 absent himself without any fear of an attachment from the 

 Court for contempt." With regard to the question whether 

 a skilled witness would be permitted to demand a high fee 

 for his attendance under such circumstances, the writer 

 adds : " To permit him legally to demand a high fee would 

 perhaps look somewhat like legally countenancing a bribe." 

 At all events there is no such legal recognition. 



In a case which came before the Court of Exchequer in 

 May 1868 {Maxted V. Morris), a witness wilfully disobeyed 

 a subpoena. In consequence of this the trial was postponed 



12 



