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MEEDIN v. MOHIDIN.
D. C., Kandy, 10,711.
Search warrant—Maliciously obtaining same— Want of reasonable cause—Action for damages—Animus injuriandi.
Defendant, who was complainant in a Police Court prosecutionfor theft, swore an affidavit before the Magistrate that he had beencredibly informed that the property which he alleged was stolen bythe accused in the Police Court case was in plaintiff’s possession,and applied for a search warrant to search the plaintiff’s house.A search warrant was accordingly issued and plaintiff’s housesearched, but no property was found. Plaintiff thereupon sueddefendant for damage for “ pain of mind and loss of dignity ”—Held, that this was an action on the case for injury, and that itwas necessary that plaintiff should prove intent on the part- ofdefendant to expose him to contumely. Such intent is not to beinferred from the mere fact of defendant applying for a searchwarrant hastily and without reasonable cause.
rpHE plaint in this case set forth that the defendant instituted inthe Police Court of Kandy a charge of theft against fourpersons; that he falsely and maliciously and without reasonableor probable cause appeared before the Police Magistrate on the27th March, 1896, and complained to him that the property stolenby the accused was in the possession of the plaintiff; that heprayed for a warrant to search the house of the plaintiff ; and thatthe Police Magistrate granting it, the house of the plaintiff was
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1897. searched, “ but no stolen property was found therein, whereby theSeptember 9. <« 8ajd complaint against the plaintiff was determined- By reason“ of the premises,” the plaint alleged, “ the plaintiff has been“ injured in his reputation and suffered pain of body and mind,
” to his damage of Rs. 350,” and he prayed for judgment for thesaid sum and costs.
The defendant answered that thieves had entered his house andcarried away certain articles on the 20th March, 1896 ; “ that“ thereafter defendant received certain credible information from“ one Mohideen and Meera Lebbe, respectable traders in Kandy,
“ to the effect that they had seen certain of the stolen property in“ the boutique of the plaintiff, who is in the habit of receiving and“ taking articles in pledge or pawn ; that thereupon, believing the“ said information, and acting Jtona fide, the defendant on 27th“ March, 1896, made complaint upon affidavit to the Police Magis-“ trate of Kandy as set forth in the plaint; that, save as aforesaid,“ the defendant denies the allegations in the 2nd paragraph of the“ plaint, or that he falsely and maliciously made the said complaint” against the plaintiff, or that he made it without reasonable or“ probable cause.”
The District Judge (Mr. J. H. de Saram) did not believe thatany information was ever given to the defendant, and held thatthere was no reasonable or probable cause for the application fora search warrant. He assessed the damages suffered by plaintiffat Rs. 75, and entered judgment for plaintiff for the amount, withcosts of the scale within which the decree falls in the Court ofRequests.
The defendant appealed.
Domhorst, for appellant.
Wendt, for respondent.
September 9, 1897. Withers, J.—
The form of the plaint and the language of the plaint and thejudgment look as if the parties and the Court thought that thiscase was one of malicious prosecution; but in fact the defendanthas never prosecuted the plaintiff. He had prosecuted others fortheft of some articles of his which he trades in, and while that casewas pending he presented an affidavit to the Magistrate in thesewords:—
“ I, Peer Mohamadu, of Trincomalee street in Kandy, solemnly,“ sincerely, and truly affirm and state that I am credibly informed“ that the stolen property mentioned in Police Court, Kandy,
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" case 806, belonging to me, is now in possession of Paolieer Meedin, 1897.“of 38, Colombo street, Kandy, I therefore pray for a search Septemberg.“ warrant to search the house and premises of the said individual withebs. j.“ for the said stolen property.”
The affidavit was signed before the committing Magistrate, who,having ascertained from the applicant for the searoh warrant thathe was not related to the said Packeer Meedin, ordered a searchwarrant to be issued. This he had jurisdiction to do. The housewas searohed by the officer entrusted with the warrant and noneof the stolen property was found. Packeer Meedin is the plaintiffin this action. His cause of action I understand to be this : “ The“ defendant by a false and malicious affidavit procured a searoh“ warrant to be executed in my premises to my pain of mind and" loss of dignity.”
I do not understand him to be suing for trespass to propertywhich the execution of the search warrant involved. The Englishauthorities cited to us by Mr. Domhorst, if they are pertinent,show that the defendant would not be answerable for trespassunder the warrant, for the warrant was sanctioned by a JudicialOfficer. Counsel for defendant in Locke v. Ashton, who prevailedon the Judges to grant a new trial, admitted that an action on the .case might have lain, but then malice and want of probable causemust have been alleged and shown. This is just what the plaintiffbrings here. It is an action on the case for injury. But thequestion is, What must be proved to sustain such an action ?
Injury is of so wide a scope that I doubt if any general rule canbe laid down to meet all classes of cases. But the essence of thisparticular injury is contumelious, and this class of injury is thusdefined by Voet: Delictum in contemptum hominis liberi admiasum,quo ejus corpus vel dignitos vel farm Iceditur dob malo (AdPand, 47,10,1). .
No doubt in this case the wrong was contumelious, that is, thewrong was calculated to expose the plaintiff to contumely. Hashe proved dolus malus ? Or, to put it another way, was thedefendant’s intent to expose the plaintiff to contumely mademanifest ? Take this instance given by Voet: if a judgment-creditor seizes his debtor’s goods per injuriam when his debtoris quite prepared to satisfy the judgment, he is liable to an actionfor injury, that is, if his act in seizing his debtor’s property is donedefamandi causa. Take another instance by the same author :
Si manifeste calumniosa delatione effecerit, ut homo infansquoestioni subjectus ac tortus fuerit (Ad Pand, 47,10, 7). There mustbe then in cases of this kind an evident intent to be vexatious orcontumelious without good cause.
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September 9.Withers, J.
Is it enough that the warrant was asked for hastily and withoutreasonable and probable cause ? The defendant did not charge theplaintiff with being the guilty receiver or retainer of his stolenproperty. He applied for a search warrant on the ground that hehad been credibly informed that the stolen articles were in theplaintiff’s possession. The Magistrate granted bis application, andin so doing seems to have acted precipitately. Further inquirymight have made the Magistrate hesitate if not forbear altogether.The District Judge does not believe that the defendant revivedany information of the sort. This is a strong view to take in theface of the evidence led by the defendant. But let that pass.The District Judge infers malice from the fact of the defendantapplying to the Court for a search warrant so hastily and withoutreasonable cause. But is this enough ? Was this itself manifestlycontumelious ? If not, must not the plaintiff prove from othersources an intent to outrage his respectability ? There was noproof of such an intention.
Even given the facts found by the District Judge, the action,in my opinion, fails for want of proof of animus injuriandi.
In the public interest actions like this ought to be discouraged.
I would set aside the judgment in appeal and dismiss the actionwith costs.
I confess I do not go with the learned District Judge in bisdisbelief that information of the goods being in plaintiff’s boutiquewas given to defendant by Sego Mohideen, nor do I consider tliatif given it should be held to have been falsely given. There isnot the slightest suggestion from first to last of any evil motivewhich might have induced either defendant or his informant tomake such a statement that the stolen goods were there.
Granting that malice may be inferred from proof of want ofprobable cause, I do not regard that the English Law considersmalice to be a minor element for consideration in these cases. Ibelieve it holds it to be necessary that such proof should be sostrong as to be absolutely conclusive thereof ere that inferenceagainst defendant should be deduced therefrom. The proof wouldbe perhaps held conclusive of a person not at all engaged in trade,nor of the race or class of life among whom such articles might befound, were he to deny that the articles ever were in his possession :in such a case his mere negation of their possession would be takenin conjunction with the primd facie improbability that hewould ever have had occasion to posses? them. But when thekeeper of a pawn shop should make a like denial, the absence of
such improbability would weaken the effeot of the denial, for hisavocation would give the asserter some probable cause for believingthat the information he had received was true.
The necessary degree of malice will therefore always dependupon the decree of proved want of probable cause, and willnecessitate that the latter shall not be matter of only formal proof,but that it shall have always to be remembered that in the absenceof proof of manifested malice aliunde the improbability mustbe shown to be so great that the existence of malioe must be therebyestablished.
I agree that malice was not proved to be here existent, andentirely concur in the latter portion of my brother’s remarks.
MEEDIN v. MOHIDIN