Byne v. Moore In the Common Pleas, November 13, 1813. Reported in 5 Taunton, 187

This was an action for a malicious prosecution in indicting the plaintiff for an assault and battery. The only evidence on the part of the plaintiff being, that the bill was preferred and not found, Lord Chief Baron Macdonald who tried the cause, nonsuited him.

Best, Serjt., had obtained a rule nisi to set aside that nonsuit and have a new trial; against which

Shepherd, Serjt., showed cause.

Mansfield, C. J. I feel a difficulty to understand how the plaintiff could recover in the present action, wherein he could recover no damages, because he clearly has not proved that he has sustained any: I can understand the ground upon which an action shall be maintained for an indictment which contains scandal, but this contains none, nor does any danger of imprisonment result from it: this bill was a piece of mere waste paper. All the cases in Buller’s Nisi Prius, 13, are directly against this action, for the author speaks of putting the plaintiff to expense, and affecting his good fame, neither of which could be done here. If this action could be maintained, every bill which the grand jury threw out would be the ground of an action. The judge too might certify in this cause against the costs, if the damages had been under 40s.

Heath, J., concurred.

Chambre, J. It would be a very mischievous precedent if the action could be supported on this evidence.

Rule discharged.