Justice Wilson, J.
1. This case gives rise to several questions of fact and law. Mr. Allen is right in his contention that the matter is not affected by Section 642 of the Civil Procedure Code, but by English law.
2. This arrest is under a writ issued from the Small Cause Court, the Act constituting which has no corresponding section to Section 642 of the Civil Procedure Code, and the matter must be governed by English law.
3. The question is, whether the defendant attending Court, under the circumstances under which this defendant attended, is privileged from arrest. The general doctrine is that parties are privileged. The proceeding under which the hearing came on is somewhat peculiar, and it is said that a defendant attending in a suit of this nature, under the circumstances which existed here, was not privileged. The suit is under chap. 39, and when the proceedings are under that chapter the writ is in a peculiar form, and the defendant is not allowed to defend without obtaining leave in the mode prescribed. If he fails to apply, the case is set down in the undefended board, and the case being called on, a motion is made for a decree. On motion being made, the defendant is not entitled to be heard. Is that sufficient to take the matter out of the rule where otherwise the party is privileged
4. On the whole, I am of opinion that the doctrine of privilege should be construed as including a case of this kind. I think so even apart from any question, whether the defendant might be heard for any collateral purpose. I think a defendant, who is to have judgment passed against him, is so far interested in the proceedings that he is entitled to be present. That being so, he would be privileged. It is impossible to say that the defendant would not have considerable interest in attending for various purposes. It might be necessary for him to attend to apply to the Court as to costs. It might be necessary for him to apply for summons.
5. In any case, I am of opinion a defendant is within the general terms of the doctrine of the law which gives privilege to a party attending Court.
6. The case of Teil (14 B.L.R., App. 13) is not an authority affecting this case, because the ground of the decision was, that the defendant, though he had come to Court, had not come as a witness. He came for a different purpose, and sought to use his presence here for a different purpose. If I am right in thinking the prisoner was privileged from arrest, it extends to the time when he was coming to Court; the time he was in Court, and the time for returning. The question, therefore, is, was the judgment-debtor really returning when the arrest took place. It is clear he. started from here with the intention of going home. It is also clear that those who had to make the arrest thought he was going home, and I think they intended to arrest him on his way home. They say that they thought they could, and that they intended to arrest him if he got home and left his house again, or if he stopped anywhere in his way home. I am sorry to say so, but I think that was not their intention. They gave instructions to the bailiff to overtake him and arrest him, if they could find that he stopped in such a way as to give them a right to arrest. The bailiff was called and gave his evidence in a very straightforward way, and he is a disinterested witness. That can hardly be said of the other witnesses, except the second witness for the defendant.
7. What is the evidence. He started from here and went down Chitpore Road. Got into Chitpore Road, the ordinary road by which he would naturally go to Cossipore. He denies he ever went on beyond Colootollah. The other witness--the man in the buggy--says he did go beyond that point, because he met him a distance ahead. It is impossible to say which way the truth lies. I am disposed to think he did go some distance along Chitpore Road and turn back. It is in evidence that part of the road was blocked. I take it, that having started to go a shorter way, he changed his mind and took another road. I do not think it is laid down that a man must go home by the shortest road. If a man can go by a quicker and less crowded road, his doing that does not take away his privilege.
8. Then did anything happen after going into Colootollah. The bailiff says he drove into Colootollah, and then to Ruttun Sircar's lane, and there the gharry stopped. If those in charge of the matter were a little more cautious, they would not have been in such a hurry to arrest the prisoner. They did not wait to see who came out of the gharry. The bailiff says, the gharry stopped at a house of ill-repute.
9. The other witness says, the gharry stopped at the door of Komul Kissen Shaw, who was with the prisoner. The mere fact of driving up Chitpore Road, and returning part of the way, was not such a change of intention as to deprive the prisoner of the privilege he claims. The arrest was made before the defendant could get out. If he had got out, and was going into the house, it would have been another question. But it lies on the judgment-creditors to show that there was some deviation, and, having failed to do this, the prisoner must be discharged.