dence in a certain way, that if he did so he would be compen- CHAP. VI. sated, and not otherwise "(1).

The expenses should be tendered at the time of service, or, at all events, a reasonable time before trial; and appearance would be no waiver of the right to require payment previous to examination.

The right to prepayment is recognised on the original side of the High Court: the provisions of the Procedure Code have already been pointed out. Also every witness summoned to attend before the Insolvent Court is entitled to have his necessary expenses tendered to him, in like manner as by law is required upon service of a subpoena to a witness in an action at law (2).

Non-payment of old scores-that is, previous unpaid expenses for former attendances-could not be set up.

In the case of a married woman, the tender, notwithstanding Married her coverture, should be to herself, not to her husband.

women.

been Witness

subpoenaed on

In the case of a witness subpænaed by both parties, it has held in England that he is entitled to be paid, by the party both sides. actually calling him, all not exhausted by the payment received from the opposite side.

attendance,

A person summoned to give evidence is bound to appear at the Nontime and place mentioned in the summons (3), but a person summoned consequences merely to produce a document is deemed to have complied with of the summons if he cause the document to be produced instead of attending personally to produce it (4).

When a witness on whom a summons to attend or produce a document has been duly served, without lawful excuse fails to attend, the Court may order him to be apprehended and brought before the Court. If he abscond or keep out of the way, so that he cannot be apprehended, his property is liable to attachment and sale, in the same way as when he absconds or keeps out of the way to avoid service (5). By the Penal Code (Section 172), it is also enacted that whoever absconds in order to avoid being served with a summons, notice, or order, proceeding from any public servant legally competent as such to issue such summons, &c., is liable to punishment with simple imprisonment for one month, or a fine of five hundred rupees; or if the summons, &c, is to attend in

(1) Clark v. Gill, 1 Kay & Johnson, p. 19.

(2) 11 & 12 Vict., c. 21 (The Indian Insolvent Act), s. 36.

(3) Act VIII of 1859, s. 167.

(4) Ibid, s. 153.

(5) Ibid, s. 168.

CHAP. VI. person or by agent, or to produce a document in a Court of Justice, with simple imprisonment for six months, or fine of one thousand rupees, or both. But where a person who is a party to the suit has been ordered to attend to give evidence, or to produce a document, without lawful excuse fails to comply with such order, the Court may either pass judgment against him, or may make such other order as it may deem proper (1).

Consequence of refusal to give evidence.

If any witness attending or being present in Court, without lawful excuse refuses to give evidence or to produce any document in his custody or possession named in the summons, upon being required by the Court so to do, the Court may commit him. to close custody for such reasonable time as it may deem proper, unless he in the meantime consent to give his evidence or to produce the document. If after the expiration of such time the witness shall persist in his refusal, the Court may proceed to deal with him according to the provisions of any law for the time being in force for the punishment of persons refusing to give evidence. If the person refusing to give evidence or to produce a document in his custody or possession be a party to the suit, the Court may, upon such a refusal, as in the case of failure to attend, &c., either pass judgment against him, or make such other order as it may deem proper (2).

Section 175 of the Indian Penal Code enacts that whoever, being legally bound to produce or deliver up any document to a Court of Justice, omits so to do, shall be punished with simple imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. By Section 179 it is enacted that whoever, being legally bound to state the truth on any subject to any public servant, refuses to answer any question demanded of him touching that subject by such public servant in the exercise of his legal powers, shall be punished with simple imprisonment for a term which may extend to six months, or with a fine which may extend to one thousand rupees, or with both. By Act XXIII of 1861, Section 21, it is provided that, when any such offence as is described in these sections of the Penal Code is committed in the view or presence

(1) Act VIII of 1859, s. 170.

(2) Ibid, ss. 169, 170; and ss. 126, 127. See Stephen's Blackstone, Vol. III, as to the power of Courts of Record to punish by fine or imprisonment for contempt; and see In re Abdool and Mahtab, Chuprassees of the High Court, 8 Sutherland's Weekly Reporter (Cr.) p. 32,

of any Court, it shall be competent to such Court to cause the CHAP. VI. offender, whether he be a European British subject or not, to be detained in custody; and, before the rising of the Court on the same day, to take cognizance of the offence, and to adjudge the offender to punishment by fine not exceeding two hundred rupees, or by imprisonment in the civil jail for a period not exceeding one month, unless such fine be sooner paid. If the Court is of opinion that a heavier punishment ought to be awarded, he is to proceed as is laid down in the section (1). Also, by Section 26 of Act XIX of 1853, any person to whom a summons to attend and give evidence or produce a document has been personally delivered, and who, without lawful excuse neglects or refuses to obey such summons, or who absconds or keeps out of the way to avoid service of such summons, and any person who being in Court is required by the Court to give evidence or produce a document in his possession, without lawful excuse refuses to give evidence or sign his deposition, or to produce a document in his possession, is made liable to the party at whose request the summons was issued, or at whose instance he was required to give evidence or produce the document, for all damages which he may sustain in consequence of such neglect or refusal, or absconding or keeping out of the way, to be recovered in a civil action (2).

As to what circumstances will justify a witness who, in obedience to a subpoena, attends a trial in a civil cause, in bringing an action for his costs and charges, the law in England is not very clear (3). Having regard to the provisions of the Civil Procedure Code, the question seems to be of little importance as regards India.

It has been held in England that an action is maintainable for money had and received to recover back conduct-money paid to a party upon a subpoena to attend a trial as witness where, in consequence of the cause being settled, no trial takes place and the party incurs no expense, and does no act in consequence of the subpœna (4).

In India, on a reference from a Small Cause Court in the mofussil, the High Court (Peacock, C.J., and L. S. Jackson, J.) were of opinion that no action for the expenses of a witness will lie.

(1) See in reference to this, The Queen v. Bhagai Dafadar, 2 Beng. Law Reports (F. B.),

p. 21; and In the matter of Mani Chandra Das, ib. (A. C.), p. 188.

(2) See ante, p. 169. See also Act IX of 1850 (Small Cause Courts, Presidency towns) 8. 49.

(3) Taylor on Evidence, Vol. II, p. 1074.

(4) Martin v. Andrews, 7 Ellis & Blackburn, p. 1.

CHAP. VI.

Privilege from

arrest.

Tribunal must be legal one.

"Before a witness," said the Court, "is summoned, a sufficient sum for his expenses in going to and from the Court, and for one day's attendance, is to be deposited in Court. If it shall appear that the amount deposited on account of the travelling or other expenses of the witness in passing to and from the Court is not sufficient, the Court may order a further sum to be paid to him on that account; and if not paid, the Judge may order the amount to be levied or may discharge the witness. If the attendance of the witness is required for more than one day, the Judge may order a further sum to be paid, and, on default, may discharge the witness from further attendance" (1).

If the witness in Court, without lawful excuse, refuse to be sworn or to testify, he is of course guilty of contempt, and is punishable accordingly by fine and imprisonment.

The witness is privileged from arrest upon any civil process, pending his attendance at, and in going to, and returning home from, the trial, termed in technical language "eundo, morando, et redeundo" (2); and as respects either going or returning, this intends a reasonable time for the purpose. He is not protected from arrest upon a criminal charge, home itself being no protection against criminal process (3).

The principle is neatly put by Mr. Justice Erle in a case of ex parte Cobbett, when he says:-"It is the duty of a person in the situation of Mr. Cobbett, having writs out against him, to satisfy his creditors; and Courts should assist the demands of justice by giving effect to writs of execution. There is an exception made from this demand of justice on the one side by a greater demand of justice on the other side, when a person is required as a witness; and thus far the privilege from arrest is recognized and universally acted upon, but further than that the Courts have not gone" (4).

The tribunal before which the witness is summoned must be a lawful one, and having jurisdiction in the cause. But the privilege applies to any proceeding in the nature of a judicial one; as, for instance, to an arbitration had under an order of Court;

(1) E. D. de Saran v. Hurrish Chunder Biswas, 5 Sutherland's Weekly Reporter (S. C. Ct. R.), p. 6.

(2) "In going, staying, and returning."

(3) Per Lord Denman In re Douglas, 3 Queen's Bench, p. 638. The person was arrested on his return home. See Taylor on Evidence, Vol. II., p. 1153.

(4) Weekly Reporter, 1856-57, p. 708; S. C., 7 Ellis & Blackburn, p. 959.

and, a fortiori, the attendance before any Bankruptcy or Insol- CHAP. VI. vent Court.

It has been questioned whether, under the head "legal tribunal," would be embraced the case of a witness attending before a Magistrate, or other inferior judicial officer, under a summons or writ of subpoena; and though it has been held in America that such persons are privileged, it has never been expressly so determined in England. In stating the American decision, Mr. Taylor (in the second edition of his work) added:--" And on the principles of English law, this decision would appear to be sound, since the privilege should surely be co-extensive with the power of enforcing attendance." In the case of ex parte Cobbett, referred to above, Mr. Justice Crompton says:-" I agree with Mr. Taylor in his second volume on Evidence, p. 859, that on the principles of English law, the privilege from arrest should be extended to a witness attending before a Magistrate or other inferior judicial officer. There has been a decision to that effect in America, though no positive decision in this country." In the fifth edition of his work, Mr. Taylor says:-"A witness who attends before a Magistrate, or other inferior judicial officer, by virtue of a summons or a writ of subpoena, will, it seems, be privileged from arrest on civil process, eundo, morando, et redeundo; and the same privilege has been extended to a person attending before a Police Magistrate as a witness on a charge of felony after a remand, though he was not under recognizances or summons to appear” (1).

for return.

In determining the question of reasonable time, the Court acts Time allowed with liberality towards the witness. It would not, however, allow any abuse of the privilege,—such, for instance, as improper loitering or deviation,―though it would not enquire too strictly whether the party went as quickly as possible, and by the shortest possible route.

The solution of the question of reasonable time must of course be always one of circumstances, and individual cases will throw but little light upon it. It may, however, be stated on the one hand that, in one English case, the rule of protection was extended to a witness arrested about a mile and a half in the direction of his house, though two hours after he had left the Court (2); as it was in another where the witness, after leaving the Court, first

(1) Taylor on Evidence, Vol. II., p. 1154.

(2) Selby v. Hills, 8 Bingham, p. 166.