46 THE LAW AFFECTING ENGINEEKS 



not only the bare out-of-pocket expenses of his journey, etc., 

 but also the remuneration provided for by the scale. 



The law relating to the recovery of expenses may be 

 summed up as follows : 



1. A witness can only maintain an action against the party 

 who has subpoenaed him if an express or implied contract 

 upon the subject can be shown. 



2. The jury may in some circumstances reasonably infer a 

 promise to pay from the mere fact of the attendance of the 

 witness at the trial (Pell v. Daubney, 1850, 5 Ex. 955.) 



3. A witness cannot recover any larger amount than the 

 sum specified in the scale of allowances as fixed by the judges, 

 even though he rest his claim on an express promise. 



4. No action can be maintained against the solicitor upon 

 an implied contract to pay the expenses of attendance, although 

 such an action will succeed if an express agreement for any 

 payment can be established. 



18. Witness subpoenaed "but not called. If a witness be 

 subpoenaed but not actually called, the question whether the 

 unsuccessful party must pay his fees is for the Taxing Master 

 to decide (East Stonehouse L. Bd. v. Victoria Brewery Co., 

 1895, 2 Ch. 514). In such a case, the fact that the counsel 

 has advised his attendance is usually regarded as a sufficient 

 reason for allowing his attendance (Gregg v. Gardner, 1897, 

 2 Ir. E. 122). 



19. Fees and expenses in particular Courts Generally. 

 Many of the rules of Court which relate to the costs and 

 expenses of expert witnesses deal with the subject from the 

 point of view of a taxation between party and party. So, if 

 the plaintiff succeeds in his action, and is awarded costs, the 

 defendant will have to pay the taxed costs of the plaintiff's 

 expert witnesses. The question of taxation scarcely concerns 

 the witness ; for he can always look to the plaintiff for that 

 portion of his agreed fees which the defendant has not been 

 directed to pay. Nevertheless agreements to accept such fees 

 as may be allowed on taxation are not altogether unknown ; 

 and the rules, therefore, form a guide to enable the engineer to 

 ascertain what he may expect to receive in case no prior 

 arrangement has been made. 



