1947 Present: Soertsz S. P. J. and Canekeratne J.
 
DEMBER, Petitioner and ABDUL HAFEEL, Respondent.
 
S. C. 36-Application for restitution in interim in

D. C. Colombo, 12,416.

    Restitution in interim-Petitioner interned at time of action-Unable to instruct Proctor and place him in funds-Grounds for relief.
 
Petitioner was sued for damages for breach of contract. He was not present at the trial but was represented by a proctor and judgment after trial was entered against him. Petitioner applied for restitution in interim on the ground that, by reason of the fact that at the time of the trial he was interned in an Internment Camp, he had been unable either to instruct his proctor or place him in funds for the proper conduct of the case.
 
Held, that the remedy of restitution in intergrum was not available in the circumstance.

APPLICATION for restitution in intergrum.

 E. F. N. Gratiaen, K.C. with Ivor Misso, for the defendant respondent.

Cur. adv. vult.

 November 12, 1947. CANEKERATNE J.-
 
This is an application to have the judgment and proceedings in action No. 12,416 M of the District Court of Colombo set aside ; the action. was one instituted about September 30, 1940, against the petitioner by the respondent for recovery of damages for breach of a contract of sale of "old clean and unused newspapers". The petitioner denied liability on certain grounds. He had been interned in the Internment Camp at Diyatalawa and by the end of the year 1942 was transferred to a camp in India. After certain earlier proceeding? the case ultimately came on for trial on November 30, 1944. Issues were then framed and evidence led on behalf of the respondent but no evidence was called on behalf of the petitioner who was represented by his Proctor : he however raised an issue as regards a term of the contract. The trial was concluded and about a fortnight later judgment was entered against the petitioner.
 
In the present application which was filed on January 23, 1947, the petitioner states (a) that he was released from internment in August, 1946, and that by reason of the internment he was not in a position to instruct his lawyers in regard to the steps to be taken and witnesses to be summoned on his behalf at the trial and (b) that as a result of being interned he was not able to place his Proctors in funds for the proper conduct of the case and to enable them to summon the necessary witnesses. It was contended at the argument that in the interests of justice the judgment alleged to have been pronounced in the absence of the petitioner should be set aside as the Roman -Dutch Law allowed restitution in integrum in respect of proceedings of this nature.
 
In integrum restitution, in Roman Law, was a branch of the praetor's equitable jurisdiction and one of the most remarkable cases of his cognition extraordinaire. It denotes the act not of a private party, but of a magisterial authority. It is the restitution by the praetor to his original legal condition, in cases where some injury has been done to a person by operation of law. The interposition in such cases of the highest Roman Minister of Justice bears some analogy to the use made of the prerogative of the Crown in early English legal history. The function of thus over-riding the law where it collided with equity was only confided to the highest magisterial authority, and even in his hands was governed

by the principle that he was only supposed to act in a magisterial, not in a legal capacity. Five grounds or titles (justice cause) to extraordinary relief (extraordinaire auxilium) were recognized and enumerated in the Edict, Big. 4, 1 intimidation (metes), fraud (doles mains), abstention, error, minority (acetates infirmities). Two, however, of these titles, fraud and intimidation, had additional remedies in the ordinary course of procedure where they were recognised as grounds of exception and personal acti