1. A plea was, however, urged which is not entered in the memorandum of grounds of appeal that the suit ought to be dismissed on the ground that the Local Government had not been made a party in accordance with the provisions of Section 28, Act XV of 1873. Inasmuch as in a former case (unreported) this objection had been allowed in special appeal and the suit remanded to the Court of first instance for retrial after adding the Local Government as defendant, we permitted the plea to be argued although it was not entered in the memorandum. In the present instance it appears to us that the plea should not be allowed. It is the practice to implead the Collector as representing the Local Government. The Collector and the Magistrate are one and the same person, and in this suit the Magistrate was impleaded not only as President of the Municipal Committee, but as representing the Local Government.
2. At the most it appears to us in this case there was a misdescription of the officer representing Government, a misdescription which that officer might have applied to have corrected. Consequently, assuming that it would be a valid plea in special appeal that the Government must necessarily have been impleaded, and on this point we must not be taken to express an opinion, we hold that the plea cannot arise in this suit because the Government was impleaded.
3. The question which next calls for decision is whether or not the suit should be dismissed because notice of action was not given in pursuance of Section 43 of the Act. This plea was not, it appears, raised in either of the Courts below, and it is not a plea affecting the decision on the merits. It therefore can hardly be held to be a good plea in special appeal. We may, however, observe that a plea based on similar provisions in a former Act was considered by the Court in an unreported case. It was then pointed out that, on the construction of analogous provisions in English Statutes, it had been held that notice of action is only necessary where the suit is brought for a tort or a quasi tort--Addison on Torts (4th ed., 764)--and that in Poorno Chunder Roy v. Balfour 9 W.R. 535; see also Price v. Khilat Chandra Ghose 5 B.L.R. App. 50. Mr. Justice Phear expressed his opinion that similar provisions in Act III of 1864 (B.C.) 'were directed solely to the cases of suits brought against Commissioners for damages consequential on the act done by them'; and seeing that the suit then before the Court was not brought for damages, the Court held that the provisions of Section 31, Act VI of 1868, respecting notice of action were inapplicable to it. We agree with that ruling. The object of requiring such notice appears to be to enable the committee or those acting under them to tender compensation and so prevent the necessity for a suit. In the suit now before the Court no damages are claimed. For the reasons we have stated we disallow the plea.