further sum, observing that the party must resort to his action. Dixon v. Lee, 1 C. M. & R., 645.

Other expenses:-These will consist mainly of the cost of board and lodging near the court-house during the time of detention for the purpose of giving evidence, and perhaps in the case of respectable witnesses of hiring conveyances to and from the court-house.

A witness is not entitled under this Act to any compensation for mere loss of time. Nawab Nazim of Bengal v. Rajah Prosonnonarain Deb, 2 Hyde, 236. Neither is he under the English law. Where however a witness is called not to speak to some fact, but to give his opinion, he is entitled to compensation for loss of time, Webb v. Page, 1 C. & K., 23; and as a witness may maintain an action for his expenses, Pell v. Daubeny, 5 Ex., 955, it is conceived that in such a case an action might be maintained for the compensation. Lush, 526.

The practice of collecting from parties in suits, naming public servants as witnesses, such sums as may be equal to the pay of such servants, during their absence from duty, is prohibited. Rules of Practice, 41.

In pauper suits, as in other suits, the plaintiff must pay into court the expenses of his witnesses before the summons can be issued. Ibidem, 35.

Tender of expenses

to witness.

161. The sum so paid into Court shall be tendered to the person summoned, at the time of serving the summons if it can be served personally. 162. If it appear to the Court or to such officer as it appoints in this Procedure where inbehalf that the sum paid into Court is not sufficient sufficient sum paid in. to cover such expenses, the Court may direct such further sum to be paid to the person summoned as appears to be necessary on that account; and, in case of default in payment, may order such sum to be levied by attachment and sale of the moveable property of the party obtaining the summons; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

If it be necessary to detain the person summoned for a longer period than one Expenses if witness day, the Court may from time to time order the party detained more than at whose instance he was summoned, to pay into Court such sum as is sufficient to defray the expenses of his one day. detention for such further period, and in default of such deposit being made, may order such sum to be levied by attachment and sale of the moveable property of the party at whose instance he was summoned; or the Court may discharge the person summoned without requiring him to give evidence; or may both order such levy and discharge such person as aforesaid.

Appear to the court.-That is, when the witness attends and requires payment of a further sum.

It has been thought that the wording of this part of the section seems to imply that under the Code a witness is bound to obey the summons however insufficient may be the sum tendered to him for his expenses: but see Sec. 174.

Discharge the person.-Who no doubt will have a right of action for payment of his expenses. See Hallet v. Mears, 13 East., 15. It appears from Lush, p. 527, that :-" It was held in one case that, where the witness had been brought to the place of trial by one party, the other finding him there might subpæna him without a tender of expenses; and having been examined by the latter, that he could not refuse to be cross-examined on account of the former not having paid him enough; in a latter case, however, it was held that the party calling him was bound to pay all his expenses, though his subpoena had been served after the other, and as it would seem, after the expenses had been incurred. If both pay him neither can recover back the amount. It is usual, though it is not necessary in ordinary cases, to tender a shilling to a witness residing in town to attend in a town cause."

163. Every summons for the attendance of a person to give evidence or Time, place, and produce a document shall specify the time and place at which he is required to attend, and also whether purpose of attendance his attendance is required for the purpose of giving to be specified in sumevidence or to produce a document, or for both purposes; and any particular document which the person summoned is called on to produce, shall be described in the summons with reasonable accuracy.

mons.

With convenient accuracy.-A writ of subpoena duces tecum must specify with reasonable distinctness the particular documents required; and a general direction to produce all papers relating to the subject in dispute will not be enforced. Taylor, 1064.

164. Any person may be summoned to produce a document, without being summoned to give evidence; and any person Summons to prosummoned merely to produce a document shall be duce document. deemed to have complied with the summons, if he cause such document to be produced instead of attending personally to produce the same.

If he cause to be produced.-Subordinates in public offices cannot be summoned to produce official papers. Pro. S. C. 19th

March, 1860. Where the production of official papers is necessary, generally it will be proper to summon the Collector of the District, or other head of a department having custody of the same, to produce them, and the person summoned will cause them to be produced by a clerk or other subordinate.

Power to require persons present in Court to give evidence.

served.

165. Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his actual possession

or power.

166. Every summons to a person to give evidence or produce a document shall be served as nearly as may be in manner Summons how hereinbefore prescribed for the service of summons on the defendant; and the rules contained in Chapter VI as to proof of service shall apply in the case of all summonses served under this section.

In England the writ must be personally served, and in order to ground an attachment it is a necessary part of the service that the original subpoena be shown to the witness, whether he requires to see it or not; but not for any other purpose, unless at or within a reasonable time after the service he requires to see it, and then if it be refused the service will be defective. The copy must in all cases be left with and not merely shown to the witness, and it must be correct; where the subpoena required the attendance on the 27th, and the copy on the 24th, an attachment for disobedience was refused. Lushs Prac., 525.

For the mode of obtaining the evidence of a witness who is in jail, see the Prisoners Testimony Act, 1869.

167. The service shall in all cases be made a sufficient time before the time specified in the summons for the attendance of Time for serving the person summoned, to allow him a reasonable time for preparation and for travelling to the place at which his attendance is required.

summons.

A sufficient time.-This is essential. In England the subpoena must be served a reasonable time before the trial of the cause; what that is must depend upon the circumstances of each case, and that is in all cases a question for the court. It may be served after the day when the party is called on to appear, and, provided notice be given him that the cause has not been tried, such service will be good to maintain an action, though not, it seems, for an attachment. Lushs Prac., 527.

A summons in the morning to attend in the afternoon of the same day, has more than once been held insufficient, though the witness lived in the same town, and very near to the place of trial. Taylor, 1065.

168. If the serving-officer certify to the Court that the summons for the attendance of a person, either to give evidence or to produce a document, cannot be served, the Court shall examine the serving-officer on oath touching

Attachment of property of absconding

witness.

the non-service:

and upon being satisfied that such evidence or production is material, and that the person for whose attendance the summons has been issued is absconding or keeping out of the way for the purpose of avoiding the service of the summons, may issue a proclamation requiring him to attend to give evidence, or produce the document, at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door of the house in which he ordinarily resides.

If he does not attend at the time and place named in such proclamation, the Court may in its discretion, at the instance of the party on whose application the summons was issued, make an order for the attachment of the property of the person whose attendance is required, to such amount as the Court thinks fit, not exceeding the amount of the costs of attachment and of the fine which may be imposed under Sec. 170:

Provided that no Court of Small Causes shall make an order for the attachment of immoveable property.

May issue a proclamation.-Not' shall.' Nevertheless the provision will be imperative where the contemplated case arises, on the principle laid down in Macdougal v. Paterson, 11 C. B., 755, and Crake v. Powell, 2 E. & B., 210, that where a statute confers an authority to do a judicial act in a certain case, it is imperative on those authorized to exercise the authority when the case arises.

No reasonable application to compel the attendance of important witnesses should be rejected without good and sufficient cause. Anund Lall Roy Chowdhry v. Ramtonoo Doss, 3 W. R., Act X R., 150. A judges discretion, in not compelling the attendance of witnesses named by one of the parties, must be exercised on reasonable grounds distinctly stated in the judgment. Ozeer Mahomed v. Bydnatti Doss Chowdhry, 5 W. R., Act X R., 6.

At the instance of the party.-Not of its own mere motion. 169. If, on the attachment of his property, such person appears and satisfies the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court shall direct that the property be released from attachment, and shall make such order as to the costs of the attachment as it thinks fit.

If witness appears, attachment may be withdrawn.

Procedure if witness fails to appear.

170. If such person does not appear, or appearing, fails to satisfy the Court that he did not abscond or keep out of the way to avoid service of the summons, and that he had not notice of the proclamation in time to attend at the time and place named therein, the Court may impose upon him such fine not exceeding five hundred rupees as the Court thinks fit, having regard to his condition in life and all the circum. stances of the case, and may order the property attached, or any part thereof, to be sold for the purpose of satisfying all costs incurred in consequence of such attachment, together with the amount of the said fine, if any :

Provided that if the person whose attendance is required pays into Court the costs and fine as aforesaid, the Court shall order the property to be released from attachment.

Court may of its own accord summon as witnesses strangers to suit.

The section has been amended so as to give the Courts a tremendous power, which it is to be hoped they will not abuse. Sec. 588 gives no appeal against an order made under this section. 171. Subject to the rules of this Code as to attendance and appearance and to the provisions of the Indian Evidence Act, if the Court at any time thinks it necessary to examine any person other than a party to the suit, and not named as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession, on a day to be appointed, and may examine him as a witness or require him to produce such document. 172. Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit must attend at the time and place named in the summons for that purpose, and whoever is summoned to produce a document must either attend to produce it, or cause it to be produced, at such time and place.

Persons summoned to give evidence must attend.

173. No person so When they may de

part.

summoned and attending shall depart unless and until (a) he has been examined or has produced the document and the Court has risen, or (b) he has obtained the Court's leave to depart.

174. If any person on whom a summons to give evidence or produce a document has been served fails to comply with the Consequences of nonsummons, or if any person so summoned and attendattendance. ing departs in contravention of Sec. 173, the Court may order him to be arrested and brought before the Court:

Provided that no such order shall be made when the Court has reason to believe that the person so failing had a lawful excuse for such failure.

When any person so brought before the Court fails to satisfy it that he had a lawful excuse for not complying with the summons, the Court may sentence him to fine not exceeding five hundred rupees.

Explanation. Non-payment or non-tender of a sum sufficient to defray the expenses mentioned in Sec. 160 shall be deemed a lawful excuse within the meaning of this section.

If any person so apprehended and brought before the Court cannot, owing to the absence of the parties or any of them, give the Consequences of refusal to give evidence evidence or produce the document which he has been or produce documents. summoned to give or produce, the Court may require him to give reasonable bail or other security for his appearance at such time and place as it thinks fit, and on such bail or security being given, may release him.