JUDGMENT 1. This is a rule calling upon the opposite party to show cause why the decree of the lower Court should not be set aside and the case sent back for retrial on the merits. The suit was one brought by the Plaintiff, the Petitioner before us, in the Court of Small Causes to recover a certain amount of money as being the costs incurred by him in appearing before the Magistrate's Court to give evidence on behalf of the Defendant in two oases under sec. 145 of the Code of Criminal Procedure. The Petitioner asked for his costs in the Magistrate's Court and was referred to the Civil Court. 2. The learned Munsif vested with Small Cause Court powers, who heard the suit, was of opinion that it was not maintainable in the Civil Court, and that the order of the Criminal Court refusing to give the Petitioner his coats operated as res judicata upon his claim. 3. We are clearly of opinion that the principle of res judicata does not apply to this case. There was no adjudication of the question by the Court, there were no issues, no contesting parties and the principle of res judicata, we hold, does not apply in a matter like this. 4. Then upon the question whether a civil suit would lie, we are of opinion that the answer should be in the affirmative, having regard to the circumstances of this case. The point is not altogether free from doubt. If the Plaintiff had been cited to give evidence in a criminal case, strictly so-called, different considerations might have applied to this case. For the duty of assisting a Court of justice in determining whether an alleged offence has been committed or not, and whether the person accused before it is guilty or innocent, is a public duty east upon every member of society, for the performance of which he may not be entitled to any remuneration or even reimbursement of costs incurred by him except from the Crown. 5. But the present case is not one of that nature and so we need not enter into a detailed discussion of the question. The case was one under sec. 5. But the present case is not one of that nature and so we need not enter into a detailed discussion of the question. The case was one under sec. 145 of the Code of Criminal Procedure, which was a quasi-civil case being a dispute about possession of land, and according to the law of this country the successful party may recover his costs from his adversary in such a case (see sec. 148, Cr. P.C.) That being so, the considerations that must govern this case are those that are applicable to civil cases. In regard to witness's right to bring an action for recovery of his costs incurred in giving evidence in civil cases, this is what Taylor says in his work on Evidence, paragraph 1250. "In an action brought by a witness who in obedience to a subpoena, has attended a trial in a civil cause for his costs and charges, the law as to what circumstances will support the claim is not very clear and the following propositions are therefore only submitted with some hesitation. First the witness can only maintain such an action against the party to the suit who has subpoenaed him, if an express or implied contract upon the subject can be shown," and this is the view that has been taken in the case of Hallet v. Mears 13 East's Repts. of Cases 15 (1810) and also in the case of Fell v. Danbeny 5 Exchequer Report 955 (1850). In this latter case Baron Alderson observes, "The only question is whether there must be an express promise to pay the expenses or whether the promise is to be implied from the nature of the transaction. I think it is one party to receive a benefit, the other to confer it. If a person goes to another and by a subpoena desires the latter to serve him by giving evidence at a trial, he having a right to refuse unless his expenses are paid goes to the trial, it is upon the faith that what he does not require to be paid will be paid; and therefore it is very reasonable to imply promise to pay." These observations would also go to show that the case may well come under sec. 70 of the Indian Contract Act. 6. 70 of the Indian Contract Act. 6. For these reasons we are of opinion that the suit was not barred by res judicata, nor was it open to any objection on the ground that such a suit is not maintainable. 7. The decree of the lower Court is therefore set aside and the case sent back to that Court in order that it may try the case on its merits. The Petitioner is entitled to his costs of this rule. We assess the hearing fee at one gold mohur.