COREA v. PIERIS

Present The Hon. Mr. A. G. Lascelles, Acting Chief Justice,
and Mr. Justice Middleton.

COREA v. PIERIS

D. C., Kurunegala, 2,740.

Malicious prosecution-Actio de injuria-Acquittal-Onus-Animus injuriandi-English Law-Roman-Dutch haw-Counsel giving evidence for their clients.

In an action de injuria arising out of a criminal prosecution, the fact that the plaintiff has been acquitted does not throw on the defendant the onus of justifying the prosecution.

Both according to the principles of the Roman-Dutch Law and the English Law, in an action for malicious prosecution the onus is always on the plaintiff to prove-(1) that he was innocent, and that his innocence was pronounced by the tribunal before which the accusation was made; (2) that there was a want of reasonable and probable cause for the prosecution, or, as it may otherwise be stated, that the circumstances of the case were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause; (3) that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indhect and improper motive, and not-in furtherance of justice.

Abrath v. The North-Eastern Railway Co.(1) and Moss v. Wilson(2) followed.

There is no rule of evidence which prevents counsel from giving evidence on behalf of their clients.

THE plaintiff sued the defendant for damages for malicious prosecution. The District Judge (Allan Beven, Esq.) gave judgment for the plaintiff for Rs. 10,000. The defendant appealed from this judgment. At the trial Mr. Van Langenberg, who appeared with Mr. Schneider for the defendant, proposed to call Mr. Schneider as a witness for the defence to show that the defendant in instituting criminal proceedings acted on Mr. Schneider's advice.

The District Judge, on objection taken by the plaintiff's counsel, refused to allow Mr. Schneider to be called as a witness, as he was one of the counsel for the defendant. But the Supreme Court in Appeal (disagreeing with the District Judge's ruling) heard and considered Mr. Schneider's evidence in deciding the appeal.

Van Langenberg (Schneider with him), appeared for the appellant.

H. J. C. Pereira (E. W. Perera with him), for the respondent.

Cur. adv. vult.

Foot Notes :

(1) (1883) 11 Q, B. D. 440.

(2) (1905) 8 N. L. R. 368.

27th August, 1906. LASCELLES A.C.J.-

This is an appeal from a judgment of the District Judge of Kurune- gala awarding plaintiff Rs. 10,000 as damages for malicious prosecution by defendant. The conditions which are necessary to success in an action of this kind are laid down as follows by Lord Justice Bowen in Abrath v. North-Eastern Railway Co.(1).

In order to establish his cause of action it is incumbent upon the plaintiff to prove-(1) that he was innocent, and that his innocence was pronounced by the tribunal before which the accusation was made; (2) that there was a want of reasonable and probable cause for the prosecution, or, as it may otherwise be stated, that the circumstances of the case were such as to be in the eyes of the Judge inconsistent with the existence of reasonable and probable cause; (3) that the proceedings of which he complains were initiated in a malicious spirit, that is, from an indirect and improper motive, and not in furtherance of justice.

It is not disputed that the plaintiff has complied with the first of these conditions. He was discharged by a competent Court, and he is entitled to the full benefit of the discharge. The appellant now contends that the plaintiff has failed to prove that the charge was made without reasonable ground and from any indirect and improper motive.

The respondent, it should be noticed, contended, upon the strength of a passage at p. 145 of M. de Villiers' Translation of Voet's title De Injuriis, that where the criminal charge has failed it is incumbent upon the defendant in an action for malicious prosecution to justify the

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