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As to the 3d error specially assigned, the matter here assigned as cause of error, could not be alledged for error in this stage of the proceedings. If the loss of prize money could by any possibility happen, and damages are supposed to have been given for it by the jury, the fact of the loss must be taken to have been proved. If it is impossible, either in point of law or fact, that such loss could have happened, it must now be taken that the jury were directed by the judge to lay it out of the case at the trial, and that no damages were given by them on that account.

As to the 4th error specially assigned, the argument upon which this error in attempted to be maintained, (viz.) a supposed incompetency in a court of common law, to decide upon a question of this kind, and its being a military offence only punishable in a military tribunal, is wholly inapplicable to this case; the action of the plaintiff in error is a suit instituted for a reparation in damages for an injury received, not for the punishment of a delinquent; and it is no objection to the maintaining a civil action, either that the defendant in the commission of the wrong complained of has done an act for which he is criminally punishable, or that he has not been punished for such offence before the action brought, or that the court in which the suit is instituted is not competent to punish such offender criminally. It is in daily practice to maintain actions to recover satisfaction for civil injuries, where the offenders are likewise indictable as for crimes, without any such indictments being preferred, and in courts not having criminal jurisdiction. If any objection is meant to be taken on the ground of the courts of common law being, from the nature of the subject, unable to judge of it, the answer is, that the courts of law must be supposed competent to their functions; and it is an incontrovertible principle, that courts, having jurisdiction of the cause before them, must take notice of, and decide upon, matters incidentally arising, though they may be of a sort over which the court hath not original jurisdiction.

And as to the 5th error specially assigned in argument, it is not averred in the declaration, as an abstract proposition, that is the duty of every Commander in Chief, as such Commander, to hold a court-martial; but the declaration first states the defendant to have been the Commander of a particular expedition, upon a particular service, and then proceeds to aver, that it was his duty, as such Commander in Chief as aforesaid, viz. as Commander of that particular expedition, to have held a court-martial, thereby restraining the allegation to its being the duty of the defendant, in his particular situation. If the defendant, as Commander of that expedition, had a commission, by which he was empowered to hold a court-martial, and it was therefore his duty to have holden one, (though such power may not be necessarily incident to the station of every Commander in Chief of a squadron,) the omission in not stating the defendant's commission, amounts to no more than an objection, that the plaintiff's title [96] to recover is defectively set out, and not to any defect of title, and is therefore cured by verdict; the declaration alledges, it was the duty of the defendant, as such Commander, to have holden a court-martial, that he might reasonably have holden it, and that he wilfully, wrongfully, and injuriously, and contrary to his duty, as such Commander, omitted, neglected, and refused to do so, which could not be without his having a competent authority to hold one, and which must therefore necessarily have been either proved, or admitted, at the trial, and be taken to have been so proved, after verdict.

On the other side it was argued, (R. P. Arden, E. Bearcroft, J. Scott, R. Dallas) that this was an action brought by a subordinate officer against the Commander in Chief of the squadron in which he served, for maliciously, and without any reasonable or probable cause, bringing him to trial by and before a court-martial, as stated in the first and second counts of the declaration; which being an act in the course of discipline, and within the powers incident by law to his situation, no action will lie, although it be charged to have been wrongfully and maliciously done, because the same reasons of policy and public convenience on which it is held that an action cannot be maintained against a judge, or grand or petit juror, for an act done by them in such capacity, though it be alledged to be wrongful and malicious, equally, if not more forcibly, apply to the case of a Commander in Chief, who arrests, suspends, and causes to be tried, a subaltern under his com-