Corea V. Peiris

In The Privy Council.

On appeal from the Supreme Court of Ceylon.

Present: Lord Macnaghten, Lord Atkinson, Lord Collins, and
Sir Arthur Wilson.

COREA v. PEIRIS.

D. C, Kurunegala, 2, 740.

Malicious prosecution-Requisites of proof-Charge based on information-Belief in the truth of the charge-Conduct of a reasonable man of ordinary prudence-Animus injuriæ Reasonable and probable cause-Burden of proof-Competency of counsel to give evidence on behalf of his client-Making out a new case, on the hearing in review-Roman-Dutch Law-English Law.

The principles of the Roman-Dutch Law and the English Law on the subject of malicious prosecution are practically identical, and the onus of proving the existence of animus injuriæ, or malice rests on the plaintiff under both systems of law.

Where a person, makes a criminal charge against another on information received by him from others, the motives of his informants, or the truth in fact of the story they tell, are to a great extent beside the point. The crucial questions for consideration are: Did the prosecutor believe the story upon which he acted ? Was his conduct in believing it, and acting on it, that of a reasonable man of ordinary prudence ? Had he any indirect motive in making the charge ?

An advocate is competent to give evidence on behalf of the client for whom he appears.

A party to a suit should not be allowed to make out a new case on the hearing in review.

APPEAL by the plaintiff from the judgments of the Supreme Court reported in 9 N. L. R. 276 and 10 N. L. R. 321, where the facts are fully set out.

Messrs. De Gruyther, K. C., R. W. Lee, and E. W. Perera, for the plaintiff, appellant.

Messrs. Simon, K. C., Dornhorst (K. C., of the Ceylon Bar), James Peiris, and Geoffrey Lawrence, for the defendant, respondent.

May 11, 1909. Lord Atkinson-

This is an appeal from a judgment of the Supreme Court of Ceylon (in review) dated October 2, 1907, affirming its judgment on appeal dated August 27, 1906, whereby a judgment pronounced by the District Court of Kurunegala on April 20, 1906, in the plaintiff's favour was reversed.

The action, which was instituted by the appellant in the District Court, was. one for malicious prosecution on a charge of criminal trespass and theft.

As their Lordships understand the judgment appealed from, the Supreme Court held that a prosecution instituted without malice, and with reasonable and probable cause, cannot, under the Roman-Dutch Law, be held to amount to an act of aggression; that an animus injuriæ in the prosecutor cannot, therefore, be inferred from the mere fact that the prosecution has failed and the accused been acquitted; that the burden of proving the existence of this animus injuriæ (i. e., malice) rests, under the Roman-Dutch Law as under the English Law, on the plaintiff in such an action; and that the principles of the two systems of law on the subject are practically identical. The various authorities to which their Lordships have been referred fully sustain, in their opinion, the several conclusions at which the Supreme Court has arrived on these points.

The appellant and respondent have conflicting claims to an undivided half of certain land called Madugasagare, situate in the above-mentioned district. The respondent claims as the assignee of the donee of a lady named Gunemal Etana, and the appellant as the assignee of a subsequent donee of the same lady, she having revoked her first deed of gift and made a second. The appellant is an advocate of the Supreme Court of Ceylon. He resides at Chilaw in that Island, and practises his profession in the District Court which sits there. He is a member of a respectable family, and is possessed of considerable lands in the neighbourhood of Chilaw. Notwithstanding this, he has, as the District Judge finds, appeared three times in a Criminal Court of Justice charged with criminal trespass. In one of these cases he made countercharges agains

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