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The plaintiff alledged, that, by means of his arrest, suspension, and imprisonment, he lost a considerable sum of money, to which he would otherwise have been entitled, arising from captures made by the squadron under the command of the defendant, during such arrest, suspension, and imprisonment; the loss of prize-money was therefore stated on the record to be a legal consequence of the facts averred. But, in point of law, no such consequence follows; nor was any usage, precedent, or authority, cited to prove that it does. But the contrary seems to be most reasonable and just; for, on the one hand, it would be unjust, that a person accused on a probable cause, and afterwards acquitted, should suffer, though innocent; and, on the other, it would be equally unreasonable, that the person accusing him with probable cause, should be liable for any accidental damage which the conscientious discharge of his duty might occasion; but if he was not so liable, and the law should be as it is stated on the record, the party accused and acquitted, though innocent, must necessarily suffer. So that in this, as in other cases that might be mentioned, it is fair to conclude, that all the rights of the accused are but in a state of suspension till the trial is at an end; and that the effect of acquittal is to restore him to the possession and enjoyment thereof; and if so, the plaintiff had recovered for a loss which had not happened.

The third and fourth counts of the declaration being for a neglect of duty, in not bringing the plaintiff to a trial so soon as might reasonably and conveniently have been done, were, in the first place, liable to all the objections which had been stated against the first and second on the grounds of policy and public convenience, and fell within the same analogies; because in each instance, it is an action against a public officer for the exercise of [100] legal powers; and, secondly, all the objections drawn from the incompetence of a jury to try the charge itself, as stated against the two first counts, apply equally to these, because the inquiry into the breach of duty alledged in neglecting to hold a court-martial, must involve discussions of the same nature as the charge itself, and depend upon facts which a court-martial may, but a jury can neither understand nor feel. But there was a further objection peculiar to these counts, viz. that the neglecting to hold a court-martial in order to oppress and injure the accused, is an offence against the articles of war, and must, therefore, in the form of a criminal charge, be tried by a court-martial; but no such trial has been bad in the present instance, nor is it averred on the record, that the time within which such a charge must be made was elapsed before the plaintiff arrived in England to make it; so that a jury have given damages for such neglect, though the defendant has never been convicted thereof; whereas, by parity of reason, every consideration which requires the plaintiff, in order to support the first and second counts, to shew his own innocence by the sentence of a tribunal having competent jurisdiction over the original charge, equally makes it incumbent upon him, in order to support the third and fourth, to shew the guilt of the defendant ascertained in the like manner. These counts likewise aver, that it was incident to the duty of the defendant's office, as Commander in Chief, to have held a court-martial; but there is no fact alledged which made it thus incident; it is merely an allegation of law on the record; whereas, in point of law, the contrary is manifest, for by the 22 Geo. II. c. 33. a commission to hold courts-martial must be specially granted by the commissioners of the Admiralty for the time being, except in a particular case which is different from that stated on this record; so that the basis of these counts, viz. the authority to hold a court-martial, entirely failed, nor could the defect be aided by verdict, being of the substance of the action. And lastly, That because each of, and all the counts, could not, for the reasons stated, be maintained in law; and the verdict being a general one, the judgment must be arrested.

After hearing counsel on this writ of error, the following question was put to the Judges: "What judgment, or other award, ought to be made on the record as it lay before the House?" And Mr. Justice Gould having delivered the unanimous, opinion of the Judges present, that the judgment given in the Exchequer Chamber ought to be affirmed; it was thereupon ordered and adjudged, that the same should be affirmed. (MS. Jour, sub anno 1787, p. 692.)