Expenses of bringing over witnesses from abroad, of subsisting them here, and of their return, may be allowed, at the discretion of the master, subject to the review of the court, as well since 1 W. 4. c. 22. as before. Macalpine, administratrix, v. Powles and another, T. 1833. 871 An action on the case lies against a witness for not attending a trial in pursuance of a subpoena, though the plaintiff withdrew the record in consequence of his absence without the jury being sworn. Mullett v. Hunt, T. 1833.

875 In such an action it is necessary to allege distinctly in the declaration that there was a good cause of action in the original suit; but an allegation that the defendant could have given material evidence for the plaintiff, without which the plaintiff could not safely proceed to trial, and that by reason of his non-attendance, and because the plaintiff could not safely proceed to trial without his testimony, he was forced to, and did, withdraw the nisi prius record, was held sufficient after verdict. S. C. An allegation that the subpoena was made known to and shown to the defendant was held to be supported by evidence that the subpoena was made known to, and conduct money taken by him, though the original subpoena was not shown, it not ap

pearing that he requested to see it. S. C.

The plaintiff in an action for use and occupation had two witnesses to speak to the occupation. One of them could also have rebutted the defendant's expected set-off, but did not appear upon his subpoena. The cause was called on in the absence of counsel on both sides, and the record withdrawn by the plaintiff's attorney, who swore that he withdrew the record solely on account of the absence of the witness. Held, that the witness was liable to be sued accordingly. S. C. As to one defendant, bankrupt, being witness for another.

WRIT.

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