1926 Present: Garvin and Lyall Grant J J.

 DON JAMES et al. v. DON CHARLES.

319-D. C. Colombo, 12,387.

Wrongful seizure-Default in payment of sanitary rates-Failure to observe the order of precedence-Malice-Ordinance No. 6 of 1873, s. 1.

Where a Vidane Arachchi seized and sold certain property, which was not movable, belonging to the plaintiff, in default of the payment of sanitary rates, and where the plaintiff failed to point out movable property, sufficient to cover the amount of the tax, for seizure,-

Held, that the Vidane Arachchi was exempt from liability for not observing the order of seizure and sale prescribed by Ordinance No. 6 of 1873.

THIS was an action brought by the plaintiff to recover a sum of Rs. 1,000 damages from the defendants. In default of payment of Sanitary Board rates by the plaintiff, a distress warrant was issued by the Government Agent for the seizure and sale of the property of the plaintiff to cover the amounts due. The Mudaliyar, Vidane Arachchi, and a clerk acting on orders proceeded to the spot, and when the Vidane Arachchi had seized some coconuts on the trees they were resisted. A prosecution was successfully lodged against the plaintiff in the Police Court, but the conviction was set aside in appeal on the ground that there was no authority to seize the nuts and that consequently the resistance offered was not unlawful. The plaintiff thereafter filed the present action for damages against the Vidane Arachchi for malicious prosecution and wrongful seizure. The learned District Judge dismissed the plaintiff's action.

H. V. Perera, for plaintiff, appellant.-The question of bona fides need not be considered where the act is an unlawful one. If the defendant thought that his authority extended even to the plucking of nuts this would be ignorance of the law. Bona fides would have to be considered if the action is purely one of malicious prosecution. Here it is not necessary to show malice as ordinarily understood, but only a reckless disregard of the consequences of his act. The Ordinance requires movable property to be seized first, and also ten days should elapse before the sale. In this case, therefore, the seizure and sale are both illegal.

[Drieberg K. C. points out that the action was for malicious prosecution and not for wrongful seizure.]

The paragraph in the plaint which says that the defendant acted in abuse of the distress warrant is wide enough to include an allegation of wrongful seizure. With regard to malice, it is not necessary to prove an intent to injure, but only a reckless disregard of the consequences of his act (vide Serajudeen v. Allagapa Chetty 1). Coconuts on the trees, being immovable property, cannot be seized before movable property. Even if they could be seized, there was no legal seizure. There was only a notice that the coconuts would be sold if the rates were not paid.

With regard to damages, the unnecessary expenses we were put to in defending ourselves in the Police Court would not be too remote.

Driebery K. C ., for defendant, respondent.-The action was for malicious prosecution and not for wrongful seizure.

The only grievance is that in seizing coconuts the defendant did not observe the correct order of seizure. How could the plaintiff object to this when he did not surrender the movable property? A mere notification is sufficient to constitute seizure. (Corea v. Peiris.2)

H. V. Perera in reply.

GARVIN J.-

This is an appeal from a judgment dismissing the plaintiffs' action to recover from the defendant a sum of Rs. 1,000. The cause of action is set out in the plaint as follows: -

" That the defendant acted maliciously, unlawfully, and without reasonable and probable cause " in entering a certain prosecution against the plaintiff; " and further stated that the defendant committed and caused to be done or committed acts of mischief and damage to the plaintiffs' property by act