Fentum v Pocock and Another
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 1813 |
| Date | 16 November 1813 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 660
Common Pleas Division
S. C. 1 Marsh. 14.
660 FENTUM V. POCOCK. 5 TAUNT. 190. that assaulting and beating was a (Efferent offence from violently assaulting, and a greater offence, for there are many assaults without a battery. The Court held that the declaration did not purport to describe the warrant : it stated the charge truly, and though the warrant used the word struck instead of the word beat, which is in the declaration, the variance was immaterial, and they made the rule absolute. - Upon the second trial of the cause the Plaintiff abandoned his case on the first count, and upon the second gave in evidence only the bill of indictment for the assault with ignoramus returned thereon, and supposed that that constituted a prima facie case, expecting that the Defendant would rebut it by evidence, and that the Plaintiff would have his reply thereon, in which he [190] meant to go into the merits of his case after having had the previous advantage of cross-examining the Defendant's witnesses ; but the Defendant, instead of going into his case, and calling witnesses, insisted with success that the Plaintiff, upon his case, must be nonsuited. Best Serjt. had obtained a rule nisi to set aside that nonsuit and have a new trial ; against which Shepherd Serjt. showed cause : he contended that unless the Plaintiff could show a special damage, he could not, under these circumstances, maintain the action : he also cited Lillval v. Smallman, 2 Selw. N. P. 2d edit, 1056, n. where the distinction was taken by Foster J. that on indictments for misdemeanors evidence of express malice must be given. Sent v. Roberts, 1 Salk, 13 (which case, the Court observed, had been often cited, though the book in general was of no authority). Secondly, that if ignoramus be returned, where the indictment contains scandal, and where the Defendant has been in prison, the action lies ; but if the indictment contain no scandal, and there be no imprisonment, there is not a sufficient ground for the action : without proof of express rancour it lies not : the mere innocence of the Plaintiff is not sufficient. There was no evidence given of the imprisonment in the present instance. Best, in support of his rule, urged that the rejection of the bill by the grand jury was prima facie evidence of the want of probable cause. The bill contained that, which, if it bad been found, would have been cause of imprisonment, and therefore was within the rule, and the Plaintiff had proved sufficient to entitle him to a verdict. To what extent the Plaintiff would have proved himself entitled to damages cannot be apparent to the Court, because he lost the opportunity of going [191] into his case ; but though, without further evidence, he could not recover material damages, he was at least entitled to nominal damages, which would prevent him from being liable to pay the Defendant's costs, though he might not recover his own. MANSFIELD C. J. I feel a difficulty to understand how the Plaintiff could recover in the present action...
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