SUBPCENA (Lat. sub perna, under penalty, the initial words; of the writ in its original form). A mandatory writ or process issued by a court, a quasi-judicial body, or an official hav ing judicial powers, commanding a person or per sons named therein to appear at a certain time and place and testify or furnish documentary evidence in an action or judicial proceeding. Originally a sulmcena was used only to compel attendance of witnesses in court, but by statute in most States many officials and bodies having judicial powers. such as boards of commissioners, coroners, etc., are authorized to compel the at tendance of witnesses by this process.
A subpama intended only to compel the attend ance of a witness for the purpose of giving testi mony is known as a subpoena ad testifieandum. Where it is necessary to put in evidence docu ments which are in the possession of a witness, he may be compelled to appear and produce them by a subpoena duces tceum. This form of snb puma is substantially like the one above men tioned, except that it specifically enumerates as far as possible the books, papers, and documents desired. In some code States a 'notice to pro duce' served by one attorney in an action on his opponent serves the same purpose.
In most States a subpoena may be served by any person of discretion, who usually must be eighteen years of age or upward, and service is made by delivering a copy of the suhpiena to the witness personally, at the same time showing him the original, and paying or tendering his legal fees and expenses, which are fixed by statute.
Failure to appear in obedience to a subwena is a contempt of court. It is usual for the party who caused the service of the subpwna to apply to the court for an order directing the witness to show cause why lie should not he punished for contempt. Such a witness is also liable in a civil action for all damages which may have been caused by his non-appearance to the party call ing him. A witness may be excused, in the dis cretion of the court, upon showing a reasonable cause for his absence, such as illness, death in family, etc.
l'rior to 1852 a defendant was summoned to answer an action in a court of chancery in Eng land by a subpama, ad resgondendum. This prac tice has been superseded there by service of a copy of the bill instead, but still obtains in some jurisdictions in the United States. Such a sub puma corresponds more nearly in its purposes to a summons than a subpama as above described. See SUMMONS; WITNESS; EVIDENCE. Consult the authorities referred to under PROCEDURE.