Purcell v MacNamara
| Jurisdiction | England & Wales |
| Judgment Date | 07 May 1808 |
| Date | 07 May 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 533
IN THE COURT OF KING'S BENCH.
[157] purcbll against macnamaea. Friday, Nov. 27th, 1807. In an action on the ease for a malicious prosecution, it is not material for the plaintiff to prove the exact day of his acquittal as laid in the declaration, so that it appears to have been before the action brought; and therefore a variance in that respect between the day laid and the day stated in the record, which was produced to prove the acquittal, is not material; the day not being laid in the declaration as part of the description of such record of acquittal. [Dictum disapproved, Stoddart v. Palmer, 1824, 3 B. & C. 5. Eeferred to, Henderson v. Midland Railway, 1871, 24 L. T. 885. For further proceedings, see S. C. 9 East, 361.] In an action on the ease for a malicious prosecution, the declaration, after stating that on the 13th of Jan. in the 46 Geo. 3 at the Middlesex Sessions of Oyerand Terminer, the defendant indicted the plaintiff for perjury alleged to be committed in an affidavit sworn, exhibited, and filed by the plaintiff on the 10th of December 46 Geo. 3, in a cause then depending in Chancery between these parties; the record of which indictment was set forth; and that the same was removed by certiorari into, this Court; proceeded to allege that the defendant " prosecuted the said indictment against the plaintiff, until afterwards, to wit, on the morrow of the Holy Trinity in, the 46th year aforesaid, at Westminster, &c. in the Great Hall of Pleas there before Lord Ellenborough C.J. &c. the plaintiff was in due manner, &c. acquitted of the premises charged upon her in and by the said indictment," &e. At the trial before-Lord Ellenborough C.J. at the sittings after last term at Westminster, the copy of the record of the indictment being given in evidence, it appeared by the postea, that the trial and acquittal took place " on Tuesday next after the end of the [Easter] term," which was the day of Nisi Prius, before the Lord Chief Justice: whereupon the variance was objected to as fatal; and the case of Pope v. Foster (a)1 adduced as in point: and on the authority of that ease the plaintiff was nonsuited. But early in this term Gurney moved to set aside the nonsuit, on the ground that the particular day of acquittal [158] was not material to be proved as laid, so that it was prior to the bringing of the action, which it appeared to be from the memorandum of the declaration on the Nisi Prius record compared with the record of acquittal. And that the declaration did not affect to set out the record of acquittal, according to its tenor; but the day was laid under a videlicet. And he cited a case of The King-v. Payne (a)2 tried before Lord Kenyon C.J. at the sittings at Westminster after Mich, term 29 Geo. 3, where an indictment for perjury stated that "heretofore, to wit, on Monday the 3d day of December in the 28th year, &c. the cause came on to be tried," &c. And it appeared by the Nisi Prius record, that the jury were respited until, &c, unless the justices, &c. should first come on Thursday the 29th of November, &c. (a)1 4 Term Eep. 590. (a)2 This was read from a note taken by Mr. Holroyd. 534 PUECELL V. MACNAMARA 9 EAST, 159. Whereupon it was objected, that the proof varied from the indictment; as the cause must be taken to have been tried on the day mentioned in the Nisi Prius record. But Lord Kenyon overruled the objection; for the day, being stated under a videlicet, was not necessary to be proved exactly as laid. He also cited Bushy v. Watson (V)1, where the declaration was for maliciously indicting the plaintiff at the General Quarter Sessions, &c.; and the proof being of an indictment at the General Sessions, &c. the variance was held immaterial. Bex v. May(c)1, where an indictment for...
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