Folger v. Washburn
Massachusetts Supreme Judicial Court
Tort, for malicious prosecution. The answer contained a general denial of each and every allegation in the declaration, and set up no other defence. At the trial in the Superior Court, before Knowlton, J., it appeared that the original suit, which the plaintiff alleged was instituted maliciously, and without probable cause, was a complaint charging him with giving the defendant a worthless check for $100, for a like amount lent to the plaintiff by the defendant.
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Tort, for malicious prosecution. The answer contained a general denial of each and every allegation in the declaration, and set up no other defence. At the trial in the Superior Court, before Knowlton, J., it appeared that the original suit, which the plaintiff alleged was instituted maliciously, and without probable cause, was a complaint charging him with giving the defendant a worthless check for $100, for a like amount lent to the plaintiff by the defendant. The defendant offered evidence tending to show that he consulted an attorney at law of this court, and, upon his advice, made and…
1Opinion of the Court
By the Court.
In an action for malicious prosecution, the burden is upon the plaintiff to prove that the suit or prosecution complained of was instituted maliciously, and without probable cause. A general denial by the defendant puts in issue all the facts which it is necessary for the plaintiff to prove in order to make out a prima facie case. Evidence on behalf of the defendant, that, in instituting the previous prosecution, he acted in good faith, under the advice of counsel, is competent under a general denial, because it tends to rebut the plaintiff’s allegations of malice and want of…
2Cases cited1 opinion
- Brigham v. AldrichMassachusetts Supreme Judicial Court · 1870
3Cited by5 opinions
- Higgins v. PrattMassachusetts Supreme Judicial Court · 1944
- Emler v. FoxCourt of Appeals of Kentucky · 1916
- Black v. BuckinghamMassachusetts Supreme Judicial Court · 1899
- Kellogg v. ScheuermanWashington Supreme Court · 1897
- Gerbig v. GerbigNevada Supreme Court · 1942