085-NLR-NLR-V-12-DE-ALWIS-v.-MURUGAPPA-CHETTY.pdf
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Present-: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
DE ALWIS v. MURUGAPPA CHETTY.
D. C., Kandy, 18,985.
Wrongful seizure of a person's goods—Liability for damages—Malice—Mistake—Writ—Civil Procedure Code, s. 226.
Where a judgment-creditor procures the seizure of propertybelonging to a third party against whom there is no writ or warrant,he is liable in damages, whether he acted maliciously or not. It isno defence that the judgment-creditor acted under a mistake.
A
PPEAL by the defendant from a judgment of the District Judgeof Kandy (F. R. Dias, Esq.).
The defendant (appellant) caused the Fiscal to seize the goodsbelonging to the plaintiff (respondent) under a writ of executionagainst the plaintiff’s father-in-law (Abeyratna). The plaintiffpreferred a claim to the goods to the Fiscal, who released thegoods on instructions from the defendant. The plaintiff thenbrought this action against the defendant for damages for thewrongful seizure. Judgment was entered for plaintiff.
The defendant appealed.
Bartholomeuz, for the appellant.—This action must fail, as theplaintiff has not proved malice on defendant’s part. Malice cannotbe presumed; it must be clearly proved. Counsel cited Meedin v.Mohideen.1 Moss v. Wilson.2
E. W. Jayewardene (with him H. A. Jayewardene), for theplaintiff, respondent.—Plaintiff need not prove malice (DamodharTvljarano v. Lallu Khusaldas 3). This being a real injury malice willbe presumed (Voet 47,10. 7: De ViUiers, De Injuriis 73, 76). .
Cur. adv. vult.
November 12,1909. Hutchinson C.J.—
The defendant was a judgment-creditor of D. A. K. Abeyratna,and under a writ of execution against his debtor’s goods caused theFiscal to seize some goods belonging to the plaintiff. The plaintiffpreferred to the Fiscal a claim to the goods, and on the same day thegoods were, on the defendant’s instructions to the Fiscal, releasedfrom seizure. The plaintiff then brought this action for damagesfor the wrongful seizure.
In the plaint he alleged that the defendant had; caused the seizuremaliciously, and with the object of bringing disgrace on the plaintiff(who was the Interpreter Mudaliyar of the Police Court of Kandy),
1 (1897) 3 N. L. R. 27.* (1906) 8 N L. R. 368.
3 8 Bam. E. C. 177.1
NVOL. XII.12
1909.
November 12■
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1909. well knowing that his debtor (who is the plaintiff’s father-in-law)November lg. had no property, and that the goods seized belonged to the plaintiff.Hutchinson The defendant admitted the seizure, the plaintiff’s claim to the goods,C.J. and the release from seizure at the defendant’s request, but deniedthat he knew the goods to be the plaintiff’s, or that he acted mali-ciously and with the object of disgracing the plaintiff and withoutreasonable and probable cause, or that he suffered any loss ordamage in consequence of the seizure; he said that in getting theseizure made he acted bona fide, in the well-founded belief that thegoods Were the property of his debtor, and he asserted that in pointof fact the goods belong to his debtor and not to the plaintiff.
Issues, were proposed by the defendant’s proctor, which includedissues as to whether the defendant knew that the goods did notbelong to his debtor, and whether he acted maliciously and withoutreasonable and probable cause; but the issues which the Judgesettled were these :—
Did. the defendant wrongfully seize the plaintiff’s goods
under the decree in his action against Abeyratna ?
Was the seizure calculated to disgrace the plaintiff ?
There was, therefore, no issue as to malice or as to the defendant’sbelief that the goods belonged to his debtor; and there was noevidence of malice, except the circumstance that it seemed that hehad no reason to believe that the goods were his debtor’s. Thegoods werp the furniture in the plaintiff’s house, in which he and hiswife lived* and the debtor did not live; the defendant had previouslyhad the debtor examined by the Court as to his means; the debtorhad sworn on that examination that he had no property, and thedefendant had then prosecuted him for obtaining money from himon the false representation that he had property.
The District Judge found that the seizure was wrongful, and thatit was calculated to disgrace the plaintiff. He says nothing aboutmalice; but it is evident that he thought that the defendant did notbelieve that the goods seized belonged to his debtor ; he says thatthere was not the slightest pretence of a justification for the defend-ant’s conduct, and that the plaintiff was entitled to “ substantialand vindictive ” damages, and he awarded him the full amount ofhis claim, Rs. 1,000.
The defendant’s counsel contends that the action would not liewithout proof of malice, and that there was no issue and no evidenceand no finding as to malice ; that there is no right of action againstan execution-creditor who, having a writ of execution against hisdebtor, by mistake procures the Fiscal to seize goods which belongto some one else.
By section 226 of the Civil Procedure Code the Fiscal, on receivinga writ of execution, is to seize and sell such property of the debtor as
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may be pointed out and surrendered to him by the debtor, or, in 1809.default thereof, as may be pointed out by the creditor, or as is November 12.specified in the writ.Hwtohutson
If one seizes A’s goods wrongfully and without having any writ C J-or warrant, he makes himself liable to an action for damages. Noevidence of malice is necessary, and it is no defence that he actedunder a mistake. Does it make any difference if he had a writ forthe seizure of B’s goods or person and by mistake seized A’s ? O11principle I should say no. Where A’s goods or person are seizedunder a writ or warrant which authorizes it, the seizure is lawful;there is no right of action for it; but if the writ or warrant waswrongfully obtained from the Court by means of a false represen-tation made maliciously and without reasonable or probable cause,
A has a right of action against the person who so obtained it forthe wrongful obtaining of it. Where, however, there was no legalauthority or justification for the seizure of A’s goods or person, itwould seem right that he should have an action for damages for thewrongful seizure.
Meedin t>. Mohideen1 and Moss v. Wilson? which were quotedto us, were cases of action for damages for wrongful issue of a searchwarrant; there the search was lawful, being made under theauthority of the warrant, and the remedy of the person wronged wasagainst him who procured the issue of the warrant, and he had toshow that the defendant acted maliciously and without reasonableand probable cause. But if there was no warrant, or none whichauthorized the search of the plaintiff’s premises, the search would beunlawful and actionable without proof of malice or absence of cause.
This distinction is clearly stated in Nathan’s Common Law of SouthAfrica, vol. III., s. 1655, in a quotation from the judgment of DeVilliers C.J. in Hart v. Cohen.3
The defendant in this case is therefore liable for the wrongfulseizure, whether he acted maliciously or not. And in assessing thedamages in such a case the Court will properly take into account theposition in life of the parties, and the circumstances under which theseizure was made, and whether the defendant acted in good faithor not, and whether the seizure was likely to be an affront to theplaintiff’s dignity or to damage his reputation. All this the DistrictJudge has done. I do not think that the damages which he hasawarded are excessive, and I would dismiss the appeal with costs.
Middleton J.—
This was an action to recover damages for the wrongful seizurein execution of the plaintiff’s goods in his house by a judgment-creditor under a writ of execution authorizing the seizure and saleof the goods of the execution-debtor, who was the father-in-law ofthe plaintiff.
1 (1897) 3 N. L. R. 21.
* (1906) 8 N. L. R. 368.
316 S. 0. 968-
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100H.
November 12•
Middleton
J.
Certain issues were proposed by the proctor for the defendant,but the Judge framed the following issues :—
Did the defendant wrongfully seize the plaintiff’s property
under the decree in case No. 18,682 ?
Was such act calculated to disgrace the plaintiff ?
What damages, if any, is plaintiff entitled to recover V
If the first issue is read in its etymological sense, it would appearto be unnecessary, for there can be no doubt on the pleadings that theseizure was admitted to be wrongful, but I think the sense in whichthe issue was framed and agreed to was that it was intended to raisethe question whether the seizure was in point of law sucli a seizureas to make the defendant responsible to the plaintiff in damages.
The District Judge held that the seizure—I still think in thesame sense—was wrongful, and on the second issue that it wascalculated to disgrace the plaintiff, and entered judgment for theplaintiff for the full amount of damages claimed (Rs. 1.0001 andcosts./
The defendant appealed, and for him it was contended that theaction would not lie without proof of malice, and that the damagesin any case were excessive.
I think it is clear on the evidence (1) that the goods were theplaintiff’s by virtue of his marriage with his wife, a daughter of theexecution-debtor (section 19 of Ordinance No. 15 of 1876); (2) thatthe execution-debtor did not reside in the house in which the goodswere seized; (3) that the goods were seized in the plaintiff’s houseduring his absence, in the presence of his wife; (4) that the plaintiff’swife on the seizure protested to the judgment-creditor, the defendanthere, and to the Fiscal’s peon that the goods were the property ofthe plaintiff : (3) that the judgment-creditor pointed out the goodsto the Fiscal’s peon as the property of the judgment-debtor: (6)that the defendant, if he believed the property to be that of hisjudgment-debtor in his house, and that he was living here at thedate of the judgment in 1907, was strangely and unaccountablyblind to his own interest in not seizing the goods: (7) that theexecution-debtor was not present when the writ officer made hisseizure.
In the first place, I think this case must be decided on the Roman-Dutch Law. The law as regards false imprisonment, maliciousarrest, and malicious prosecution, as followed in*the Courts ofSoutli Africa, is very fully discussed in Nathan (vol. III., ch. V.,sections 1641-1657), and many authorities are here quoted. DeVilliers, in his book De Injuriis, translating and commenting onVoet (book 47, 10), defines injuries (pp. 23, 26, 27), and specifieswhat are known as real injuries (pp. 73, 76). It does not seemnecessary in every case there should be animus ivjuriandi proved,but if culpa is present, arising, for instance, from an aggression
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upon a man’s right of personal liberty, this would be sufficient. 1909.Amongst real injuries, as De Villiers C.J. said in Hart v. Cohen,1 November 12.is execution against the goods of a person other than the debtoragainst whom judgment has been given.j.
In the present case the act of seizuro was committed in effectwithout judicial process, as the process in the hands of the Fiscal’sofficer was against the goods of the judgment-debtor and not againstthe goods of the plaintiff, and as De Villiers C.J. said in the. caseubi supra, here is on the face of it an illegality for which the ownerhas his remedy without proof of malioe. I think, therefore, thepresent action can be sustained without proof of malice. In effect itis not only an aggression on the right of property, but it calumniatesthe character of the person whose goods are seized, and makes itwrongly appear to his neighbours that he is in the position of adebtor who is unable to pay his' debts. The measure of damagesfor such injuria must be estimated by the owner’s character, position,and dignity (Nathan, vol. III., p. 1702). I am by no meansdisposed to dissent from the learned Judge’s inference that theseizure was made with a view to recover moneys due by puttingindirect pressure on the relatives of the debtor, or his opinion asto the effect of the seizure on the feelings of a respectable man andhis wife, who at this time was in a delicate state of health.
I would affirm the judgment of the District Court and dismiss theappeal with costs.
Appeal dismissed.