Statement in case of documents not in his possession or power.

61. In case of any Suits on lost negotiable instruments.

60. In the case of any such document not in his possession or power, he shall, if possible, state in whose possession or power it is.

suit founded upon a bill of exchange or other negotiable instrument, if it be proved that the instru ment is lost, and if an indemnity be given by the plaintiff, to the satisfaction of the Court, against the claims of any other person upon such instrument, the Court may make such decree as it would have made if the plaintiff had produced the instrument in Court when the plaint was presented, and had at the same time delivered a copy of the instrument to be filed with the plaint.

Formerly, when the plaintiff in an action declared on a deed, or the defendant pleaded a deed, he was obliged to do it with a ‘profert in curiâ,' to the end that the other party might at his own charges have a copy of it; and until then he was not obliged to answer to it. But Sec. 55 of the Common Law Procedure Act, 1852, abolished 'profert' and 'oyer,' and provision was made by the 14 & 15 Vict., c. 99, for the 'inspection' of relevant documents in certain cases. And now Order XXXI of the Rules of the Supreme Court provides for the inspection of documents referred to in pleading.

In the case of actions on lost instruments, it is provided by Sec. 87 of the Common Law Procedure Act, 1854, that:-"In case of any action founded upon a bill of exchange or other negotiable instrument, it shall be lawful for the court or a judge to order that the loss of such instrument shall not be set up, provided an indemnity is given, to the satisfaction of the court or judge, or a master, against the claims of any other person upon such negotiable instru

ment."

Negotiable instruments.-Are those, the right of action upon which is, by exception from the common rule, freely assignable from one to another, such as bills of exchange and promissory notes. It is essential to the negotiability of a bill between all persons, except the Government, that it should be payable to order or to bearer, or that some other equivalent words should be used, authorizing the payee to assign or transfer the same to third persons, such for example as payable "to A. or his agent." See Wharton. A cheque upon a banker may be a negotiable instrument; and has been held to be a bill of exchange within the scope of 18 & 19 Vict. C. 67. Eyre v. Waller, L. J. 29, Ex. 246.

Indemnity. This word, from the Latin in not and damnum loss, is said by Wharton to mean a writing to secure one from all danger and damage that may ensue from an act or omission.

In England: the indemnity must be offered before action, otherwise the plaintiff may be ordered to pay costs up to the giving of the indemnity. King v. Zimmerman, L. R., 6 C. P., 466.

62. If the document on which the plaintiff sues be an entry in a shopbook or other book in his possession or power, the plaintiff shall produce the book at the time of filing the plaint, together with a copy of the entry on which he relies.

Production of shop

book.

The Court, or such

Original entry to be marked and returned. return the book to the

officer as it appoints in this behalf, shall forthwith mark the document for the purpose of identification; and after examining and comparing the copy with the original and attesting the copy if found correct, shall plaintiff and cause the copy to be filed.

Compare Sec. 140.

On which the plaintiff sues.-See the notes to Sec. 59. If he merely relies on" such document, this section will not apply.

It

Shall forthwith mark.-With a letter of the alphabet. should also be certified on the document that it was produced by the plaintiff, on such a date, with a copy to be filed with the plaint. 63. A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the Inadmissibility of list to be added or annexed to the plaint, and which document not produc- is not produced or entered accordingly, shall not, ed when plaint filed. without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

Nothing in this section applies to documents produced for cross-examination of the defendant's witnesses, or in answer to any case set up by the defendant, or handed to a witness merely to refresh his memory.

As to producing documents and entering documents in the list, see Sec. 59.

1

Without the leave of the Court.-A very nice discretion is vested in the courts by this provision. It would be impossible to lay down in what circumstances the courts ought to sanction the reception of documents produced after the presentation of the plaint. It may be of use to observe that the courts are bound to preserve the procedure prescribed by the Code, and not to allow departure therefrom without excellent reason. Legal discretion is a very different thing from pleasure or caprice.

Act VIII of 1859 gives a discretionary power to receive documents after the filing of the plaint. F. A. Lopez v. J. H. Driberg, W. R., 1864, Act X R., 67.

In Gosain Tota Ram v. Raja Rukiniballab, 3 B. L. R., P. C., 34, the Privy Council observed that, as the plaintiffs evidence was brought in not at the time of filing the plaint, but at two subsequent periods, there was an irregularity in that respect. But the irregularity was purged by the sanction of the court, which received and acted on the evidence; and the irregularity so purged could not form a ground of appeal.

Where a plaintiff tendered certain accounts upon which he relied at the hearing of the suit, without producing them with the plaint: -Held, that the Lower Court was justified in rejecting them from evidence under this section. A. S. 52 of 1868, 4 M. J., 262.

Nothing applies.-The provision applies only to the case of documents" sued on" or "relied upon by the plaintiff as evidence in support of his claim." In Ramji Madanji v. Rengayya Chetty, 1 H. C. R., 168, it was held that a document given to a witness purely as a script to refresh his memory is not relied on as being itself evidence in support of a case, and therefore is not received in evidence' within the meaning of (the old) Secs. 39 and 128, and consequently need not have been 'produced' when the plaint was presented.

As a writing so used does not become evidence of itself (Alcock v. The R. E. Insurance Co., 13 Q. B., 292; Payne v. Ibbotson, 27 L. J., Ex. 341), it is not necessary that it should even be admissible; and therefore a receipt which cannot be read for want of a stamp, may yet be referred to by the witness in giving his evidence. Maugham v. Hubbard, 8 B. & C. 14; Jacob v. Lindsay, 1 East, 459.

CHAPTER VI.

OF THE ISSUE AND SERVICE OF SUMMONS.

Issue of Summons.

64. When the plaint has been registered, and the copies or concise statements required by Sec. 58 have been filed, a summons may be issued to each defendant to appear

Summons.

and answer the claim on a day to be therein specified, or as soon thereafter as may be practicable,

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit, or

(c) by a pleader accompanied by some other person able to answer all such questions.

Every such summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the seal of the Court:

Provided that no such summons shall be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff's claim.

Registered.—Under Sec. 58.

Summons.-This word, formerly sommons, comes from the Latin sommonitio though the Norman semonse. According to the common law it means calling to justice. See Cowells Interpreter.

In person or-By a pleader: not also, it will be observed "by his recognized agent." See Secs. 36 and 198.

Duly instructed.-Wharton thus defines the word 'instruct:' "To convey information, as a client to an attorney, or as an attorney to a counsel; to authorize one to appear as advocate." As Sec. 36 renders it necessary that a pleader appearing for a party shall have been duly appointed, the word 'instructed' would seem to be used here in the first of the senses specified above. And this view is greatly strengthened by the circumstance that in the alternative provision immediately following this provision the words duly instructed' are not used after 'pleader.'

Able to answer all material questions.-These will be asked by the court under Chapter IX.

If the defendant appear by a pleader who is not duly instructed and able, &c., and is not accompanied by any person, the court will proceed under Sec. 120, or in extreme cases ex parte. Sometimes it happens that a duly appointed pleader, on the case being called up, rises and informs the court that he is not instructed,' meaning that he has not received his fee and therefore is unwilling to act.

Or by a Pleader.-Where the defendant does not enable his pleader to answer all material questions, he must either himself

attend in court and present himself for examination under Chapter IX, or send a competent person to accompany' the pleader.

Or such Officer.—This is quite new. The following is the old rule prescribed by the High Court touching the delegation of signature to the Head Clerk, namely:-"There are several processes to which the signature of the judge is not by law required to be affixed, and still further to relieve the judges of unnecessary labour, the High Court direct that summonses to witnesses, not being parties in the case, be ordinarily signed, not by the judge, but by the chief ministerial officer of his court. "By order of the court" should invariably precede the signature of a minsterial officer to all processes. Judges must be very careful that they sign all processes to which their signature is by law necessary." Pro. 19th June, 1866.

Seal of the Court.-This must be impressed only on such important documents, summonses for example, as are by law specially required to bear such seal. It will be found that but few sections of the Code direct the sealing of documents.

Provided, &c.-The courts must be careful to prevent this new proviso being turned to improper uses in collusive and fraudulent suits.

Copy or statement annexed to summons.

65. Every such summons shall be accompanied with one of the copies or concise statements mentioned in Sec. 58.

One of the copies.-Of the plaint. Ordinarily where there are not many defendants, the court will not permit the presentation of "concise statements" in lieu of copies of the plaint.

Court may order defendant or plaintiff to appear in person.

sonal

66. If the Court see reason to require the perorder him to appear in person in Court on the day of the defendant, the summons shall appearance therein specified.

If the Court see reason to require the personal appearance of the plaintiff on the same day, it may make an order for such appearance.

Reason to require.-It would be impossible to lay down satisfactory rules for the guidance of the courts in exercising the discretion hereby conferred on them: but since it is necessary for the court to inquire and ascertain what are the material facts averred and denied by the parties, and since, ordinarily, the parties themselves are far better acquainted with such facts than any other persons whatever, it seems to me that ordinarily the parties themselves