Page:The English Reports v1 1900.pdf/463

wrong and injury, when, &c. and says, that he is not guilty of the premises above laid to his charge, in manner and form as the said John hath above thereof complained against him; and of this he puts himself upon the country, &c. And the suid John doth the like; therefore the sheriffs are commanded, that they cause to come here, in eight days of the Purification of the Blessed Mary, twelve, &c. by whom, &c. and who neither, &c. to recognise, &c. because as well, &c. At which day here comes the parties, &c. and the sheriffs have not sent the writ. Therefore, as before, the sheriffs are commanded, that they cause to come here, in fifteen days of Easter, 12, &c. to recognise in form aforesaid, &c. At which day here come the parties, &c. And the sheriffs have not sent the writ; therefore, as before, the sheriffs are commanded, that they cause to come here, from the day of the Holy Trinity, in 3 weeks, 12, &c. to recognise in form aforesaid, &c. At which day, the jury between the said parties of the plea aforesaid, was respited here until the morrow of All Souls then next following, unless Alexander Lord Loughborough, the King's Chief Justice of the Bench here assigned, by form of the statutes, &c. should first come on Friday the 29th day of June, at Guildhall in the city of London. And now here, at this day, in the year, and within the place within mentioned, came as well the within-named John Truman, as [106] the within-named Thomas Carnan, by their attornies within named, before Alexander Lord Loughborough, Chief Justice within named, and the jurors of the jury, whereof mention is within named, summoned to be upon that jury, being impannelled, and drawn by ballot, according to the form of the statute, &c. and called over, come, who to speak the truth of the matter within contained, being tried, and sworn on their oath, say, that the said Thomas is guilty of the premises within laid to his charge, in manner and form as the said John hath within complained against him, and they assess the damages of the said John by reason thereof, besides his costs and charges by him laid out and expended about his suit in this behalf to 135l. and for his costs and charges to 40s. Therefore it is considered, that the said John recover against the said Thomas his damages aforesaid to 137l. by the jury aforesaid, in form aforesaid assessed; and also 109l. 5s. to the said John, at his request, for his costs and charges aforesaid, by the Court here for increase adjudged; which said damages in the whole amount to 246l. 5s. and the said Thomas in mercy, &c.

In Michaelmas term 1787, a writ of error was brought upon the above judgment, returnable in the Court of King's Bench; and in Hilary term the following errors (with one other not intended to be now relied upon) were then assigned.

That the declaration aforesaid, and the matters therein contained, are not sufficient in law for the said John to maintain his said action against the said Thomas; that by the said record it appears, that the judgment aforesaid, in the plea aforesaid, in form aforesaid given, was given for the said John against the said Thomas, when, by the law of this land, that judgment ought to have been given for the said Thomas against the said John; wherefore he prays, that for the errors aforesaid, the judgment aforesaid may be reversed, annulled, and had for nothing; and that he may be restored to all things which he hath lost by reason of the judgment aforesaid; and also, that the said John may rejoin to these errors, the same day is given to the said Thomas here, &c.

To this assignment the defendant in error rejoined, in nullo est erratum; and (the then attorney for the plaintiff in error having neglected to take the necessary steps for an argument in the Court of King's Bench) a judgment of affirmance was given without debate. A. writ of error was therefore brought returnable in parliament, where the following errors have been assigned: "That it appears by the record, that the judgment was given for the said John Truman against the said Thomas Carnan; whereas, by the law of the land, the judgment ought to have been given for the said Thomas Carnan against the said John Truman."

And in support of this writ of error it was insisted (G. Rooke, S. Marryat), that although it is indispensably necessary in an action for a malicious prosecution of an indictment, that the party prosecuted should appear to have been discharged in due form of law of the crime [107] imputed to him, yet the judgment of acquittal stated in the declaration appeared to have been given on a day when it was legally impossible for the Court to award it; consequently the judgment itself was nugatory, and not sufficient to ground the present action; and there was no general averment