in cases in which the witness attends rather as an unprofessional adviser than as an attorney or witness (d). EXPENSES OF WITNESSES. By 5 Eliz. c. 9, s. 12, a witness is substantially rendered liable to penalties if he does not attend at the trial, after having been served with process out of a court of record, "and having tendered to him, according to his countenance or calling, such reasonable sum of money for his costs and charges, as with regard to the distance of the place is necessary to be allowed, . . . not having a lawful and reasonable cause to the contrary." Therefore, in civil proceedings, no witness, although served with a subpoena, is bound to attend at trial unless his reasonable expenses are tendered to him when he is served, or a reasonable time before trial. The sum tendered should be a reasonable compensation for his travelling expenses and subsistence during the attendance (e). A witness will be entitled to his expenses, although a party to the cause, if he is a material and necessary witness (f). If the witness is a married woman her expenses should be tendered to her and not to her husband. If a witness is subpoenaed by both parties he is entitled to be paid all his expenses by the party (d) Jones v. Marshall, 2 C. B., N. S. 615. (e) Dowdell v. Australian Royal Mail Co., 3 E. & B. 902; Brocas v. Lloyd, 23 Beav. 129. f) Howes v. Barber, 18 Q. B. 588. calling him before giving evidence (h). The witness may waive his right to demand payment of his expenses either expressly or by implication (i). The amounts which will be allowed on taxation for the expenses of witnesses are at present entirely in the discretion of the taxing masters under Order 65, r. 27 (9) of the R. S. C. 1883, and the old common law scale of allowances of 1853 is not binding on them even in actions in the Queen's Bench Division. A new scale, and one of a more definite character applicable to all divisions of the High Court, is much needed. In criminal cases a witness for the prosecution is not entitled absolutely to his expenses, and he cannot refuse to attend or give evidence on the ground that his expenses have not been tendered or paid; but in courts of final jurisdiction they are generally allowed by the court under various acts. When the witness lives out of the jurisdiction of the court, and in a distinct part of the United Kingdom, as in Scotland or Ireland, by the 45 Geo. 3, c. 92, s. 3, he is not bound to appear to give evidence in a criminal prosecution unless his reasonable expenses are paid or tendered to him at the time when he is served with the subpoona (). In any other case a witness, subpoenaed on a criminal trial, is bound to attend without any tender of expenses, and will be liable to attachment for non-attendance; although, if it appeared that (h) Per Parke, B., Allen v. Yoxall, 1 C. & K. 316. he could not defray the expenses of his journey, the court would probably refuse to attach him. If a witness appears on his subpoena in a civil proceeding, he will not be compellable to give evidence until his reasonable expenses have been paid, or tendered by the party who subpoenas him (7). If he does not arrive before a cause has been referred, he will be entitled to costs in the reference, but not in the cause (m). A successful party may pay a witness his costs, and recover them from the defeated party (n); but an immaterial witness who has been rejected by a judge or arbitrator, cannot claim his costs as between party and party (o). The reasonable expenses of qualifying a witness to give evidence may now be allowed (p). If the witness, after being subpoenaed, is not required to attend, and has incurred no expense, he must refund the money paid to him (7). (1) Newton v. Harland, 1 M. & G. 956. (m) Fryer v. Sturt, 16 C. B. 218. (n) Hale v. Bates, E., B. & E. 575. (0) Galloway v. Kenworth, 15 C. B. 228. (p) Mackley v. Chillingworth, L. R., 2 C. P. D. 273; 46 L. J., C. P. 484; 25 W. R. 650. (1) Martin v. Andrews, 7 E. & B. 1. CHAPTER II. THE EXAMINATION OF WITNESSES. WHEN a witness has been placed in the witness box, and no objection is taken or sustained against his competency by the adverse party, he must be sworn by the officer of the court, or, when an affirmation is allowed, he may declare on affirmation (a). He may then be submitted to three distinct kinds of examination as to his knowledge of the facts which he is called to prove. 1st. He may be examined in chief by the party who calls him. 2nd. He 2nd. He may be cross-examined by the adverse party. 3rd. He may then be re-examined by the party who calls him. Although it is obvious that the regulation of the examination of the witnesses in any given trial must be left mainly to the discretion of the presiding judge, yet certain general rules have been established for the conduct of such examination, and it is the purpose of this chapter to state and explain them. THE EXAMINATION IN CHIEF. The object of the examination in chief is to elicit from the witness all the material facts which tend to (a) Vide supra, p. 30. prove the case of the party who calls the witness. In such a case, as the presumption and the ordinary fact are that the witness, having been chosen by the party who calls him, is favourable to his cause, and therefore likely to overstate or misstate the circumstances which conduce to establish the party's case, it is a principal rule that— On an examination in chief, a witness must not be asked leading questions. The simple meaning of this rule is that a party, who calls a witness to prove a case, must not suggest answers to the witness, nor frame his questions in such a manner that the witness by answering merely "Yes," or "No," shall give the reply and the evidence which the party wishes to elicit. A question is said to be leading when the words, which the witness is expected and required to utter, are put into his mouth, or when it suggests to the witness the answer which the examiner wishes or expects to have; and such a question is inadmissible, because the object of calling witnesses and examining them virâ voce in open court is, that the judge and jury may hear them tell their own unvarnished tale of the circumstances which they are called to attest. If, therefore, a party or his counsel were allowed to put a question to their own witness which the latter might answer by a mere affirmative or negative, it is apparent that the evidence would be the statement of the party, and not that of the witness. Such a course would strike radically at the credibility of all oral |