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MOSS v. WILSON.Z>. C., Kandy, 17,023,
Issue of searchwarrant—Maliciousprosecution—Proof—Dolusmalus*—
Onus of proof—Benefit of the doubt.
Wood-Rbnton, J.—Strictly speaking, an action grounded on themere issue of a search warrant is not an action for malicious pro-secution, but both in England and in Ceylon such actions aretreated as proceedings of a character similar to and as being govern-ed bythesame legal considerations as, actionsformaliciouspro-
secution. The plaintiff in such an action must prove that a chargewas made to a judicial officer; that the charge was false; tha thechargewasmade without reasonable cause; andthatthe defendant
did not honestly believe the charge to be true.
Themereabsence of reasonable or probable cause or' eventhe
presence of positive recklessness in the defendant's conduct is notsufficient to establish dolus malus, unless these elements show con-clusively that the defendant acted in bad faith.
The burden of proof, in an action of this kind, rests at all stagescm theplaintiff, and the defendant is entitled tothebenefit ofany
reasonable doubt which the balance of the evidence may disclose.
fJlHE facts are fully set out in the judgment of Wood Benton, J.
Van Langenberg, A.S.-G., for appellant.
H. J. C. Pereira, for respondent.
17th November, 1905. W.ood Renton, J.—
This is an action for malicious prosecution. Two causes of actionare assigned. Of these, the first related to a charge of mischiefunder section 409 of the Penal Code brought by Mr. Wilson, therespondent, against Mr. Moss, the appellant, in the Police Courtof Matalev while the second is based on the issue-, at Mr. Wilson'^instances, of a search warrant for the purpose of searching Mr. Moss's
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house for some stolen articles of furniture, alleged to have been 1905 •missing, and to have been the properly of the North MataleNovemher 17estate, of which Mr. Wilson is superintendent and Mr. Moss was ~~formerly dispenser.Renton, J.
Strictly speaking, an action grounded on the mere issue of a searchwarrant is not an action for malicious prosecution, but both in Eng-land. (Elsee v. Smith (1822), 1 D. and B. 97; Wyatt v. White (1860),29 L. J.9 Q. B. 198; Jones v. German (1897), 1 Q. B. 374) andin Ceylon (Meedin v. Mohideen (1897), 3 N. L. R. 27) such actions aretreated as proceedings of a character similar to and as being governedby the same legal considerations as, actions for malicious pro-secution. There is no doubt as to what the essential elements of theaction for malicious prosecution are. The plaintiff must prove thata charge was made to a judicial officer, that the charge was false*—itsfalsity being demonstrated, where prosecution has followed, bythe plaintiff's acquittal—that the charge was made without reason-able cause, and that the defendant himself did not honestly believeit to be true. The mere absence of reasonable or probable cause oreven the presence of positive recklessness in the conduct of the defend-ant is not sufficient to establish dolus malus, unless these elementsshow conclusively that he must have acted in bad faith. More-over, .^as the burden of proof rests at all stages on the plaintiff, thedefendant is entitled to the benefit of any reasonable doubt which thebalance of the evidence may disclose. In support of these proposi-tions, I may refer to the cases of Meedin v. Mohideen (ubi sup.) andChristiana v. Andiappapvlle (1898), 1 Balasingham, 58.
Now, in regard to all the constituent elements in the action for mali-cious prosecution, except one, Mr. Moss has unquestionably madeout his case. Briefly stated, the facts were these. Mr. Moss hadbeen dispenser on the North Matale estate since 1898. In 1901, onthe occasion of his wife coming to live with him, he had put up at hisown expense some trelliswork on the verandah of his bungalow be-longing to the estate, but Mr. Moss occupied it rent free as part of hissalary. There was conflict in the evidence as to, whether the trellis-work was attached to the verandah in such a manner as to make it afixture in law. It appeared that in June, 1904, Mr. Moss’s wife pur-chased from Mr. Proctor Ariyanayagam eight acres of land held byhim on a Crown grant, but situated within the bounds of the estate.In July, 1904, Mr. Wilson, came to the estate .as superintendent.He made several unsuccessful attempts to induce Mr. Moss to sell theland, and in an interview between them on the subject early in Sept-ember he threatened to dismiss Mr. Moss unless the land was sold.Mr. Wilson stated in his evidence that this threat,was merely “ bluff/*
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On the 15th September however, Mr. Wilson did terminateMr* Moss’s services as dispenser by a month’s notice from that date.The ground alleged for this step was Mr. Moss’s neglect of his dutiesas dispenser. Mr. Wilson stated in the witness box that variousverbal complaints against Mr. Moss had reached him. He had infact received a letter from a Mr. Davidson, superintendent of theestate which was associated with the North Matale estate, in regardto the employment of Mr. Moss, suggesting that his services shouldbe dispensed with, as he paid no attention to the estate coolies. Mr.Wilson next wrote to Mr. Moss asking him for a list of the furniturebelonging to the dispensary. In reply Mr. Moss stated that whenhe took charge of the dispensary in 1897 no inventory had betengiven to him, but he forwarded a list of the articles which he saidwere there—adding a note at the close that he had a pocket case ofinstruments which had been presented to him a year before. Itappears that there was in fact no estate list of the furniture inquestion. But the estate books showed that there had been a boxof instruments in the dispensary. Mr. Davidson, who had beensuperintendent of the estate from 1894 to 1898, supplied Mr. Wilson 'from recollection with a list of. the furniture which he thought hadbeen there in his time. Mr. Davidson had not, in fact, seen Mr. Mosswhen he took charge of the dispensary. He had only seen the goodssubsequently in the store. Besides the box of instruments claimed byMr. Moss as a gift, it would seem that three articles of furniture—ateapoy, a cellaret, and a lounging chair, included in Mr. Davidson’slist—did not appear in that of Mr. Moss. Fortified by the imperfectinformation given to him by Mr. Davidson, Mr. Wilson proceeded tothe dispenser’s bungalow and asked to see the furniture. Mr. Mossrefused, adding that he would give over the furniture on the 15thOctober, the day on which his services terminated. As to the groundof refusal there was some uncertainty.
Mr. Moss, who is a Tamil, alleged that it was because his wife wasliving in the house, and that he told Mr. Wilson so. Mr. Wilson didnot admit this to be correct. It is tolerably clear on the evidencethat both parties had been exasperated by the dispute as to the land.There is nothing, however, to show that Mr. Wilson ever pointedout, or asked for any explanations as to the discrepancies between thetwo lists of furniture. This observation applies to his conduct inanother matter. He became aware that Mr. Moss was removing thetrelliswork above referred to. He made no inquiries as to whetherthis was being done in the exercise of a bond fide claim of ownership.He went straight to the Police Court, lodged a complaint againstMr'. Moss for malicious mischief, and obtained a ,searclj warrant with
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a view to the recovery of the missing furniture. Mr. Wilson stated 1905.that before launching the charge for mischief he had consulted his November 17.proctor, Mr. Van Rooyen, who had said that he did not see there Woodwould be any harm in the charge. On what materials this somewhat Renton, J*enigmatical opinion was based we have no means of knowing. Wehave, however, examined the original Police Court proceedings, and itwould appear that both the complaint and the affidavit in support ofthe application for the search warrant are in Mr. Van Rooyen*s hand-writing. Mr. Moss was convicted on the charge for mischief. Butthe conviction was promptly and properly set aside by the SupremeCourt. There was not a vestige of evidence of malicious intention tosupport it. The execution of the search warrant yielded no results asto the missing teapoy, cellaret, and lounging chair. It would seemthat the box of instruments, although still claimed as a gift, was givenup before the warrant was executed. There can be no two opinionsas to Mr. Wilson's conduct as disclosed by the evidence in this case.
It deserves the severest censure. He was dealing—as he knew orcould easily have ascertained—with a servant who had beenassociated with the North Matale estate for many years, and whosecharacter, for aught that appears to the contrary, was as respectableas his own. That he should have set the criminal law in motionagainst a man in this position, along two distinct channels, withoutany adequate inquiry as to the tacts, reflects little credit either on hisdiscretion or on his sense of justice. But can we say that he may nothave honestly believed in the charges which he preferred ? TheDistrict Judge who heard the witnesses and who has carefully siftedthe evidence came to the conclusion that, although Mr. Wilson mayhave been influenced in his proceedings by his dispute with Mr. Mossabout the land, he may yet have honestly believed that he was doingwhat was right.I think that there is a reasonable doubt in Mr.
Wilson's favour on this point, and I give him the benefit of it,although the case is certainly on the border line. The appeal mustbe dismissed.
Grenier, J.—I agree.
MOSS v. WILSON