Fogg v. First Nat. Bank of Boston

• Decision Date: 28 June 1929
• Citation: 167 N.E. 251,268 Mass. 25
• Parties: FOGG v. FIRST NAT. BANK OF BOSTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

268 Mass. 25

167 N.E. 251

FOGG

v.FIRST NAT. BANK OF BOSTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 28, 1929.

Report from Superior Court, Suffolk County; Louis S. Cox, Judge.

Action by Lester R. Fogg against the First National Bank of Boston. The trial court sustained defendant's demurrer to the first count of plaintiff's second substituted declaration, and reported the case. Judgment for defendant on count 1 in accordance with terms of report, and case to stand for trial on counts 2 and 3.

Esmonde T. Doherty, of Boston, for plaintiff.

Frederick W. Eaton and Arthur L. Sherin, both of Boston, for defendant.

RUGG, C. J.

This case comes before us on report by the trial judge of the correctness of his order sustaining the defendant'sdemurrer to the first count of plaintiff's second substitute declaration. In substance the allegations of that count are that the defendant lost a large sum of money by a highway robbery committed by armed persons; that thereafter the grand jury returned an indictment charging John Doe, whose true name was unknown to the jurors, with having committed that offense; that thereafter the defendant through authorized agents joined with the police in an effort to secure the arrest of someone for that offense; that an agent of the defendant acting within the scope of his authority falsely, maliciously, and without probable cause pointed out to the police the plaintiff as the guilty person and did insist upon and procure his arrest without warrant and his lodgment in jail, and did ‘cause the name of the plaintiff to be inserted in the John Doe indictment,’ and did cause the plaintiff to be ordered to recognize with sureties which the plaintiff was unable to produce, whereby he remained in jail for six weeks; and that later, but before the commencement of the action, the district attorney without the consent of the plaintiff and against his protest entered a nolle prosequi ‘for lack of sufficient evidence with which to convict,’ whereupon the plaintiff was discharged from custody. The ground of demurrer is that it does not appear that the plaintiff was before the commencement of this action fully acquitted of the crime of robbery while armed, alleged to have been charged by the defendant through its agents.

It was said by Chief Justice Shaw in Bacon v. Towne, 4 Cush. 217, 235: ‘It must appear, before this action [malicious prosecution] will lie, that the defendant in the indictment has been fully acquitted; but a nolle prosequi is no discharge of the crime, and no bar to a new indictment.’ Again the same eminent Chief Justice said in Parker v. Farley, 10 Cush. 279, 280: ‘According to a wellsettled series of authorities, a plaintiff cannot maintain an action for a malicious criminal prosecution by indictment, by showing that the prosecution has been determined by a nolle prosequi.’ Again in Brown v. Lakeman, 12 Cush. 482, substantially the same language was used by Chief Justice Shaw. That case was precisely the same in its essentials as the case at bar; a demurrer to a declaration alleging malicious prosecution by indictment and termination of the prosecution by a nolle prosequi was sustained because it was held that the plaintiff must show acquittal of the charge and that a nolle prosequi was not sufficient. In Cardival v. Smith, 109 Mass. 158, 12 Am. Rep. 682, occur these words by...