MacLean v. Naumkeag Trust Co.
| Decision Date | 17 September 1929 |
| Citation | 167 N.E. 748,268 Mass. 437 |
| Parties | MacLEAN v. NAUMKEAG TRUST CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Superior Court, Essex County; F. T. Hammond, Judge.
Action by Norman MacLean against the Naumkeag Trust Company. From an order sustaining defendant's demurrer, plaintiff appeals. Affirmed.
F. E. Shaw, of Lynn, for appellant.
J. J. Ronan, of Salem, for appellee.
In the superior court the defendant's demurrer was sustained. The plaintiff appealed. His declaration is in three counts. In his brief the plaintiff states that the first count is for malicious prosecution; the second ‘for false imprisonment, although in form sufficient to sustain an action for malicious prosecution.’ The third count is for the abuse of process.
The first count alleges that the defendant maliciously and without probable cause procured the plaintiff to be indicted for the larceny of flour to the value of $5,000 of the property of the Naumkeag Trust Company; that without the knowledge or consent of the plaintiff a nolle prosequi was entered by the assistant district attorney to the plaintiff's damage. The second count sets out that the defendant, intending to deprive the plaintiff of his good name and to force him ‘to settle certain civil claims,’ caused him to be indicted for the crime of larceny; that a nolle prosequi was entered. The third count alleges that the plaintiff was indicted for larceny; that the ‘defendant maliciously intending to oppress and injure your plaintiff and to compel and force him to pay said defendant its said claims in full’ did wrongfully ‘procure the indictment and arrest and imprisonment of your said plaintiff,’ which ‘indictment was nolle prossed’ by the assistant district attorney. ‘Wherefore your plaintiff says said defendant, as aforesaid, was guilty of malicious abuse of said process.’
The first two counts are for malicious prosecution and it is contended by the plaintiff that the prosecution was determined by the entry of a nolle prosequi. In an action for malicious prosecution of the plaintiff by indictment it is essential to allege and prove that the prosecution has been determined by the acquittal of the plaintiff, and it is well settled that a nolle prosequi entered by a district attorney is not sufficient. This question was fully considered in the recent case of Fogg v. First National Bank of Boston (Mass.) 167 N. E. 251, where it was held that a demurrer to a declaration alleging malicious prosecution by indictment and termination of the prosecution by a nolle prosequi was sustained properly because such an entry did not show that the plaintiff was fully acquitted. Cases were cited in Fogg v. First National Bank of Boston, supra, supporting the decision. There is no adequate allegation in the first and second counts of a false imprisonment. The procurement of the arrest of the plaintiff by a lawful warrant did not make the defendant liable for false...
To continue reading
Request your trial
-
Wynne v. Rosen
...or a complaint is an insufficient basis on which to allege a termination in favor of the plaintiff. MacLean v. Naumkeag Trust Co., 268 Mass. 437, 439, 167 N.E. 748 (1929). Fogg v. First Nat'l Bank, 268 Mass. 25, 27, 167 N.E. 251 (1929). Cardival v. Smith, 109 Mass. 158, 158-159 (1872). Coup......
-
Gabriel v. Borowy
...216 Mass. 209, 103 N.E. 637, 49 L.R.A.,N.S., 753, Ann.Cas.1915A, 830; Reardon v. Sadd, 262 Mass. 345, 159 N.E. 751;MacLean v. Naumkeag Trust Co., 268 Mass. 437, 167 N.E. 748.Lorusso v. Bloom, 321 Mass. 9, 71 N.E.2d 218. The declaration makes no mention of the issuance or use of any process,......
-
Yacubian v. United States
...Dec. 1, 2010); Varrasso Const. Corp. v. Difazio, No. 88–1455–Z, 1989 WL 99299, at *2 (D.Mass. Aug. 15, 1989); MacLean v. Naumkeag Trust Co., 268 Mass. 437, 167 N.E. 748, 749 (1929); Ferraro v. First Safety Fund Nat'l Bank, 11 Mass.App.Ct. 928, 416 N.E.2d 225, 226 (1981); and Mustapha v. Tow......
-
Jones v. Brockton Public Markets, Inc.
...related to the bringing of criminal charges, e.g., Leventhal v. Dockser, 358 Mass. 799, 261 N.E.2d 64 (1970); MacLean v. Naumkeag Trust Co., 268 Mass. 437, 167 N.E. 748 (1929); White v. Apsley Rubber Co., 181 Mass. 339, 63 N.E. 885 (1902); Wood v. Graves, 144 Mass. 365, 11 N.E. 567 (1887). ......