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LE MESURIER v. MURRAY.C. R., Batticaloa, 4,406.
Notice of action against Customs officer—Terms of notice—OrdinanceNo. 17 of 1869, s. 122—Civil Procedure Code, s. 461.
The provisions of section 122 of Ordinance No. 17 of 1869, as tonotice of intended action against a Customs officer, are supersededby those of section 461 of the Civil Procedure Code.
A notice under section 461 of the Code is not vitiated by the state-ment of a claim for relief greater than that ultimately claimedin the action.
TI THE plaintiff sued the defendant, as Collector of Customs forI the Eastern Province, for Rs. 300 as damage for unlawfuldetention of goods. In the notice of action given by the plaintiff,the damage sustained by him was estimated at Rs. 500. Objectionwas taken by the defendant in the Court below that the notice didnot comply with the requirements of section 122 of OrdinanceNo. 17 of 1869, and the same was upheld by the Commissioner.
Van Langenberg, for appellant.De Aliois, for respondent.
13th January, 1898. Lawbie, A.C.J.—
The section 122 of the Customs Ordinance has, in my opinion,been superseded by section 461 of the Civil Procedure Code, whichregulates that notice of intended action must be given to all publicofficers.
It is further my opinion that the notice to the defendant satisfiedthe requirements of section 461.
The notice stated the cause of action, and the name of the personintending to institute the action, and the relief which he claimed.
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A.C.J. The notice did not state his place of abode, but that was wellknown at Batticaloa, and no point has been made of that; and thereference to the Carnac Mills, Batticaloa, in the notice is, I think,sufficient.
It seems to me that the notice was not vitiated by the statementthat a greater relief would be claimed than the relief which wasafterwards claimed in the action.
In his notice Mr. Le Mesurier estimated the damages at Bs. 500,in his action he claimed Rs. 300. The greater included the less.The diminution of the relief necessitated a change from an actionin the District Court to one in the Court of Requests. I hold thatthe defendant had sufficient notice of an action for damages forunlawful detention of goods, and that the claim of a less amountof damages in a lower Court was not a change which vitiated thenotice. The essential part remained.
The merits of this action have hardly been entered on. I thinkit is necessary that the case be sent back for trial on the merits.
The plaintiff is entitled to the costs of this discussion iri the Courtbelow and of this appeal. Other costs to be costs in the cause.
LE MESURIER v. MURRAY