Hamilburgh v. Shepard
Massachusetts Supreme Judicial Court
Tort. Writ dated June 11, 1873. The first count of the declaration alleged that the defendant maliciously and without probable cause procured the arrest of the plaintiff, on a writ in a civil action, and caused to be extorted from him the sum of $162. The second count alleged the suing out of a writ by the defendant, “ for a private and unlawful purpose of his own, to wit, for the purpose of obtaining from the plaintiff a certain large sum of money,” under the color of a…
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Tort. Writ dated June 11, 1873. The first count of the declaration alleged that the defendant maliciously and without probable cause procured the arrest of the plaintiff, on a writ in a civil action, and caused to be extorted from him the sum of $162. The second count alleged the suing out of a writ by the defendant, “ for a private and unlawful purpose of his own, to wit, for the purpose of obtaining from the plaintiff a certain large sum of money,” under the color of a legal claim; the arrest of the plaintiff under said writ, and his imprisonment for the space of three hours, “ whereby the…
1Opinion of the CourtGray, C. J.
The writ upon which the plaintiff was arrested being in due form and issued from a court of competent jurisdiction, and the arrest having been made by the officer within the scope of the authority thereby conferred upon him, the plaintiff’s cause of action, however stated in his declaration, is in substance and legal effect for malicious prosecution, and cannot be sustained without proof that the prosecution had been determined, which it had not been when this action was commenced. Cardival v. Smith, 109 Mass. 158. O'Brien v. Barry, 106 Mass. 300.
Exceptions overruled.
2Cases cited2 opinions
- Cardival v. SmithMassachusetts Supreme Judicial Court · 1872
- O'Brien v. BarryMassachusetts Supreme Judicial Court · 1871
3Cited by4 opinions
- Wood v. GravesMassachusetts Supreme Judicial Court · 1887
- Emery v. GinnanAppellate Court of Illinois · 1887
- Dangel v. Offset Printing, Inc.Massachusetts Supreme Judicial Court · 1961
- Tracey Shorter v. Pulaski County et al.District Court, N.D. Indiana · 2026