Dolan v. Thompson

• Decision Date: 16 July 1880
• Citation: 129 Mass. 205
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Charles Dolan v. Albert Thompson & others

129 Mass. 205

Charles Dolan v. Albert Thompson & others

Supreme Court of Massachusetts

July 16, 1880

Suffolk.

Exceptions overruled.

I. W Richardson & J. W. Keith, for the plaintiff.

R. M Morse, Jr., (J. H. Hardy with him,) for the defendants.

Lord, J. Endicott & Soule, JJ., absent.

OPINION

Lord, J.

The plaintiff brings his action against these defendants for a malicious prosecution. The alleged malicious prosecution was an action commenced on March 5, 1874, upon two promissory notes signed by this plaintiff. There is also an allegation in this declaration that the defendants without any just cause commenced proceedings in bankruptcy against this plaintiff, subsequently upon their own motion dismissed; but whether this allegation is regarded as a substantive cause of action, or simply as incident to and an aggravation of the suit upon the notes, it is immaterial to consider; whether it be the one or the other, the result must be the same.

In the suit brought by the defendants against the plaintiff, he rested his defence upon two grounds; first, that he had paid both the notes, and the payment of the two notes was in the same mode, and there was no claim that either of said notes was paid and not the other, the agreement set up by the defendant being the same as to each note; second, that he had a claim in set-off against the present defendants, larger than the amount of the two notes. That claim was denied by the present defendants, and, although they admitted their liability to some one for the amount of that claim, they alleged and undertook to establish the fact that their liability was to a son of the plaintiff, against whom they had also claims. It will be perceived that several issues were involved in that trial. If the notes had been paid, the plaintiffs had no cause of action, and perhaps it might be assumed no probable cause of action. If they had not been paid, whether the defendant had a claim against the plaintiffs or not, and whether to a greater or less amount than the amount of the notes, they had an absolute right of action upon the notes. The verdict in that case is conclusive that the plaintiffs had a cause of action. The legal effect of the finding of the jury was necessarily that the parties had mutual demands against each other. The verdict is decisive that the claim of this plaintiff that the notes had been paid was not sustained; for one of the notes having been...