12 Summers vs. State, 5 Tex. Ct. App., 365.

12 Rev. Stat. Ind., 1881, Sec. 504.

13 Citing 3 Am. & Eng. Ency. of Law, 2nd Ed.. 777.

This decision of the Supreme Court of Alabama, in which all the authorities are collected and collated, and to which the court gave due and deliberate consideration, owing to the far-reaching importance of the subject to the medical profession and to the community at large, has been approved and followed in other cases.14

According to the weight of authority in the United States, it would seem that, in the absence of a statute granting to an expert witness special remuneration, his only prudent course is to testify, if ordered to do so by the court, and that he cannot legally insist upon extra compensation, and that he may be punished for contempt of court for refusing to answer even a question calling for a strictly professional opinion.

It would also seem that statutes granting witness fees, to be taxed as costs in the case, being in derogation of the common law, are to be strictly construed,15 and a witness, to be entitled thereto, must bring himself within its express provisions.

On the ground that an undertaking to do that which one is legally bound to do, is without consideration, and will not support a promise, it has been held that special compensation cannot be recovered in an action at law, where a physician was subpoenaed and paid ordinary witness fees, and promised an extra fee for testifying to matters pertaining to his particular branch of science.16

14 State vs. Teipner, 36 Minn., 535, 32 N. W., 678; Summers vs. State, 5 Tex. Ct. App., 365, 32 Am. Rep., 573; County Commissioners vs. Lee, 3 Col. Ct. App., 177; Flinn vs. Prairie County, 60 Ark., 204; Clark County vs. Kerstan, 60 Ark., 308; North Chicago St. R. R.

Co. vs. Zeiger, 182 111., 14. 15 23 Am. & Eng. Ency. of Law, 2nd Ed., 387; Cadwallader vs.

Harris, 76 111., 370. 16 Walker vs. Cook, 33 I11. App., 561.