Moyle v. Drake

• Decision Date: 01 January 1886
• Citation: Moyle v. Drake, 141 Mass. 238, 6 N. E. 520 (Mass. 1886)
• Parties: MOYLE v. DRAKE.
• Court: Supreme Judicial Court of Massachusetts

141 Mass. 238

6 N.E. 520

MOYLE

v.DRAKE.

Supreme Judicial Court of Massachusetts.

1886.

This was an action of tort for malicious prosecution.

At the trial in the superior court, before BACON, J., it appeared that the defendant, on August 25, 1883, made a complaint before a trial justice, charging that the plaintiff, on August 13, 1883, at Sharon, committed a trespass by then and there unlawfully and willfully cutting down, carrying away, and destroying certain timber and wood. A warrant issued upon this complaint, by virtue of which the plaintiff was arrested. The plaintiff was tried upon this complaint, and discharged by the trial justice, who made a record of the same. One Frederic Endicott testified that he was a surveyor and civil engineer, and that a path cut by the plaintiff, which constituted the alleged trespass, damaged the premises to the amount of 10 or 15 cents; that the trees cut were very small, many of them only huckleberry bushes, etc. The plaintiff testified that he had lived a short distance southerly of the defendant's house in Sharon; that he had permission to cut a path through land of a third person, and in cutting the path made a mistake, unintentionally cutting into the land of the defendant; that, when informed of his mistake by defendant, plaintiff said he would pay the damages, and if they could not agree as to amount would leave it out to referees; that subsequently he tendered defendant two dollars in payment of the civil damages caused by the trespass, which the defendant accepted. Another witness testified that the damage made in cutting of the path would not exceed 25 cents. Upon these facts the judge ruled that the action could not be maintained; ordered the jury to return a verdict for the defendant; and, at the plaintiff's request, reported the case for the determination of the full court.

T.E. Grover, for plaintiff.

J Everett, for defendant.

FIELD, J.

The defendant made a complaint before a trial justice against the plaintiff, under Pub.St. c. 203, § 94, on which the plaintiff was arrested, and, after an examination by the trial justice, was discharged. This section of Pub.St. is a re-enactment of Gen.St. c. 161, § 81, as amended by St.1868, c. 321, § 1. By St.1868, c. 321, § 2, jurisdiction to punish this offense was given to trial justices, concurrently with the superior court, “when the value of the property cut,” etc., “or the injury occasioned by the trespass, is not alleged to exceed the sum of one hundred dollars.” It seems that by Pub.St. c. 155, § 51, this grant of jurisdiction to trial justices over offenses under this section of the statutes was omitted, and...