JUDGMENT Knox and Aikman, JJ.
1. There is but one point for determination in this second appeal. In order to explain that it will be necessary briefly to allude to the procedure adopted by the Court of First Instance. The date fixed for the settlement of the issues was, first, the 23rd September, and, again, the 10th November 1892. On the 10th the Court records, as a reason for adjournment, that it has permitted the defendants' pleader to be absent for that pleader's private business, and it therefore adjourned the settlement of issues until the 12th. Issues were framed on the 12th November, and the date fixed for the first hearing was the 8th December. Owing to the death of one of the plaintiffs the case was adjourned to the 20th of December, but not until five of the witnesses for the plaintiff had appeared in answer to the summons fixing the 20th December. On the 20th December certain of the witnesses of the plaintiff were again present, hut, owing to the illness of the Munsif, the hearing was adjourned until the 11th of January 1893. The witnesses who were present on the 20th were told to attend on the 11th January. On that date, however, two of those witnesses were absent. Instead of proceeding with the witnesses who were present or asking for an adjournment and issue of a fresh summons upon the defaulting witnesses the plaintiff applied to the Court for a warrant of arrest to be issued upon those witnesses. The Court declined to grant such warrant on the ground that the travelling and other expenses of the witnesses had not been paid, a fact which it elicited from the plaintiff himself; it accordingly refused the application and disposed of the suit upon the materials before it. The contention before us is that the Court was bound to accede to the application, made by the plaintiff and to issue a warrant of arrest. It is evident, however, from the provisions of Section 174 of the Code that the Court upon such an application being made to it has discretionary power as to granting or refusing the request, except when the Court has reason to believe that the defaulting witnesses have a lawful excuse for such failure, in which case it is precluded from making an order of arrest. Arguments might be raised as to what does or does not amount to a lawful excuse. From the explanation attached to Section 174, non-payment or non-tender of a sum sufficient to defray the expenses mentioned in Section 160, viz., the travelling or other expenses of the person summoned in passing to and from the Court, and one day's attendance shall be deemed a lawful excuse. The Court had no option after what the plaintiff himself had said but to refuse to issue the warrant of arrest. The pleas taken in the memorandum of appeal entirely fail, and this appeal is dismissed with costs.