THE ENGINEER AS WITNESS 45 



of the evidence will sometimes be taken into consideration 

 (Dicas v. Lawson, 1835, 3 Dowl. 427). The illness of a 

 witness, or the fact that leave to depart has been given him 

 by the solicitor of the party requiring his attendance, will 

 afford an ample excuse. But it should always be borne in 

 mind that the duty of attending a Court of justice is para- 

 mount to the duty of obedience to the commands of any 

 master (Oqffv. Mills, 1844, 13 L. J. Q. B. 227). 



A witness subpoenaed to attend the Court at an assize town 

 must remain there from day to day until the case is reached, 

 although the subpoena relates only to commission day (Vaughan 

 v. Brine, 1840, 9 Dowl. 179). 



A witness refusing to attend is liable to an action of damages 

 at the hands of the party who issued the subpoena. In such 

 an action the plaintiff must prove (1) that the witness was 

 material ; (2) that the trial could not safely proceed without 

 him ; and (3) that in point of fact the party has sustained 

 some damage owing to his absence. 



16. Fees and expenses of witness Generally. When the 

 engineer appears as an expert witness the payment of his fees 

 and expenses is generally provided for beforehand. Where, 

 however, he is required to attend upon subpoena, the law pro- 

 vides certain means by which payment of his fees, etc., may 

 be enforced. Thus he may refuse to give evidence, and cannot 

 be attacked for so refusing, unless his expenses have been paid 

 or tendered (Newton v. Harland, 1840, 1 M. & Gr. 956). It is 

 probable that a cheque would not be a good tender for this 

 purpose. To avoid any difficulty in this respect when 

 requested to give evidence on behalf of parties who are 

 complete strangers to him, the engineer should take the 

 precaution of having his fees in advance. 



17. Who is liable for witness's expenses. The person liable 

 to pay a witness's expenses is the party to the suit by whom he 

 is called. Therefore, if payment is made the subject of agree- 

 ment, the engineer who is summoned as a witness should take 

 care that the party has become bound; for no action lies 

 against the solicitor by whom the subpoena was served, unless 

 he expressly contracted to make himself personally liable 

 (Lee v. Everest, 1857, 26 L. J. Ex. 334). In the absence of 

 agreement a witness may recover from the party to the suit 



