( 350 )
-Tavkwak-i»kn*k A.J.
PamutAlt-ior v.
them in custody that night at the house of the second defendant.Next morning; the defendants started to take them to Topawewa.But on the way the defendants demanded Rs. 500 to release them.The plaintiff and his companions offered to pay Rs. 300 which thedefendants agreed to accept. Then the party returned to thevillage, and the plaintiff and the others raised money on sixpromissory notes for Rs. 40 each. Each of them paid Rs. 37.50to the headmen, and they were released.* The third defendant’s bullwas discovered soon after. The defendants* case is that they cameto the village and held an inquiry, and as the beef found ill thehouses of the suspected thieves was proved to be that of UdumaLebbe's bull, they were released. They denied having kept theplaintiff and the others in custody during the night, or having receiv-.ed any money from the person released. The others who werearrested and made to pay for their release have also brought actionsagainst the defendants. The plaintiff has given evidence in supportof his case, and has called three of the persons who weve arrested,detained, and made to pay for their release to corroborate him.He also called one Saibu who knew all the facts and who hadcollected the money paid to the first .defendant, and Mohideen Bawafrom whom the plaintiff and the others borrowed money. He saysthat the plaintiff told him at the time that the money was wantedto pay the first defendant to secure their release from arrest. Someof the notes have been produced. They are in the handwriting ofthe third defendant, and are witnessed to by the second defendant.I accept the learned Commissioner’s findings on the facts. Theplaintiff has established his case beyond all doubt*. It is suggestedfor the defendants that, if the defendants were obtaining money asalleged by the plaintiff, the second defendant would not have signedthe notes. But it is proved that in these distant villages money isnot lent on notes, unless the headman of the village signs the noteas a witness. It might also be that the defendants never expectedthe transaction to come to light, and never thought that thesehumble villagers would dare to put forward a claim of this kindagainst their headman. The plaintiff’s case is, however, stronglycorroborated by the fact that all the men, who complain that theywere arrested and released, had obtained money on notes on thesame day. It is also significant that there is no entry in the notebooks of the first and second defendants referring to the complaintby the third defendant, the search for the lost animal, the discoveryof beef, and the explanation of the accused. On these facts theCommissioner finds, I think rightly, that the defendants falselyimprisoned the plaintiff and the other suspected persons and releasedthem on the receipt of Rs. 300.
An objection is taken to that part of the judgment which directsthe payment of the Rs. 37.50, on the ground that even if the moneyhad been so paid to the defendants, it cannot be recovered back,
( 351 )
as it was paid on an unlawful agreement—an agreement void asbeing against public policy. The arrest and detention were bothillegal; even so, it is contended that money paid to obtain one’srelease from such detention is money paid in pursuance of anunlawful contract which cannot be recovered. It is an attempt torecover money paid as a bribe.
Courts do not allow the recovery of money paid under an immoralor unlawful contract only when the parties are in pari delicto orturpitudine, Yoct 12, 5, 2. If the detention had been lawful, itmay be that money paid to obtain one’s release from such detentioncannot be recovered back, but different considerations apply whenthe detention is illegal and a person is falsely imprisoned. Thissubject is dealt with by Voet in book 12, title 5, Do condictione obtarpem vel injustam causam, and he points out that the object withwhich a thing is given may be either 06 lionestam causa/m or obturpsm causam, and the turpitudo may be on the part of the giverand not of the receiver, or on the part of the receiver alone and notof the giver, or on the part of both.
If the turpitudo is on the part of the receiver alone, there is anaction for the return of what is paid, even when the object has beenfulfilled: —Si modo accipientis solius, non item dantis, turpitudoversetur; vcluti si quis dederit alteri ne sibi vel tertio per calumniamUs moveatur, injuria ijiferatur, furtum fiaL Yoet 12, d, I.
And the Digest on the same subject deals with the very case wehave here: ‘4 Again if a thief gives money to avoid being given up,inasmuch as it is a case of immoral behaviour on the part of bothparties, there is no action to recover; but whenever the immoral be-haviour occurs on the part of the receiver alone according to Celsus,there may be an action for the return of the money; for instance,when I give you money on the understanding that you will not do mewrong. ” (Digest 12, d, 4, 1-2); Monro's Translation, p. 304:Nathan's Common Law of South Africa, voL 2, s. 1070.
PannaA War c.Lebbc
The English law seems to be the same. See Pitt v. Goomex,1where it was held that money paid to obtain one’s release from,illegal arrest on civil process can be recovered. There. DenmanC.J. said:“This is an application by the plaintiff to have
money repaid to him which he paid into Court for obtaininghis liberty, 'flic arrest, we think, was illegal. The consequence isthat the money was illegally extorted. In saying so, I do not meanto suggest that the proceeding was corrupt, but the money havingbeen the price paid to recover liberty, when improperly taken awaymust be restored. ”
Also Clarke- v. Wood,2 and the local’ case of Saibo o. The Attorney-General,3 where Bertram C-J- has discussed the law relating tt> thealternative action condiotio ob injustam causam.
1 11835) 2 A cG E, 459.' (1S4S) 3 Ex. 395.
» (1923) 25 X. L. R. 221.

•Jatbwab-VfiME AtJ»
ParmaAUiar v.Lebbt
( 852 )
In the present case the arrest was not merely illegal, but alsocorrupt, and the payment might also be considered as part of thedamages sustained by the false imprisonment. From these authori-ties it is perfectly clear that money paid to obtain one's releasefrom illegal arrest and detention can be recovered.
It was also contended for the first and second defendants—theheadmen—that the action has been brought against them withoutgiving the notice required by section 461 of the Civil ProcedureCode, but it has been held that a public servant who does an illegalact mala fide in the pretended exercise of statutory powers does not“ purport " to act under the Statute which confers those powerswithin the meaning of section 461 and is not entitled to notice ofaction {Apponsino v. Don Aron1 and Abaran Appu Banda 2). Thesedefendants were acting illegally, and not in the bona fide exercise ofany, statutory duty. They were accordingly not entitled to noticeof action. The plaintiff has been awarded Bs. 10 only as damagesfor false imprisonment. This is hardly adequate. But there is nocross-appeal. I therefore dismiss the appeal of the defendants, withcosts.
Appeal dismissed.
* tIOOX) 9 N. R. 13$.
(1923) 16 X.L. R. 49.