1913 Present: Pereira J. and Ennis J.

DIONIS v. SILVA.

353-D. C. Galle, 11,212.

Malicious prosecution-Actio de injuria-Burden of proof that the plaintiff was innocent-Nature of evidence required to prove innocence.

On a complaint made by the defendant against the plaintiff the Magistrate refused to issue summons. The plaintiff brought the present action against the defendant claiming damages for malicious prosecution.

Held, that there was no prosecution inasmuch as the Magistrate refused summons. Where a Magistrate refuses summons, having gone through the preliminaries required by the Code, the proceeding must not be regarded as a prosecution. To constitute a prosecution the accused should be before the Court.

Held further, that since there was no prosecution and a consequent acquittal or discharge of the accused, the Police Court proceedings are not of much avail to the plaintiff to establish his innocence. He must do so aliunde.

THE facts are set out in the judgment of the learned District Judge (L. W. C. Schrader, Esq.) : -

1. This is an action for malicious prosecution. The first defendant lodged a criminal charge against the plaint