Zinn v. Rice

• Decision Date: 20 May 1891
• Citation: 27 N.E. 772,154 Mass. 1
• Parties: ZINN v. RICE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

154 Mass. 1

27 N.E. 772

ZINN v. RICE.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1891

COUNSEL

Ball &amp Tower, for plaintiff.

Robert M. Morse, Jr., Edward A. Upton, and Chas. E Hellier, for defendant.

OPINION

W ALLEN, J.

It is not contended that the facts alleged in the declaration, and offered to be proved at the trial, are not sufficient to sustain an action by the plaintiff against the defendant. The defendant's contention is that the action is prematurely brought; that it is an action for malicious prosecution, and subject to the rule that a suit for malicious prosecution cannot be maintained until the prosecution has terminated in favor of the plaintiff. But the rule applies only to suits for maliciously instituting groundless prosecutions, and does not apply to the injurious and malicious use of process in proceedings which were commenced with probable cause. The latter, being for the malicious use of legal process by acts authorized by its terms, may be called "actions for malicious prosecution," to distinguish them from actions for the abuse of process by doing under color of legal process acts not authorized by it; but there is no rule of law that in such an action the termination of any former suit must be shown. The rule is founded on the necessity of proving that a prosecution which itself puts in issue the truth of the charge on which it is founded is without probable cause. A defendant in such an action cannot bring another action to try the issue tendered him in the first while that issue is pending. The rule is, by its terms and nature, limited to a prosecution to establish a charge or cause of action, and cannot include an ex parte use of process incidental and collateral to such a prosecution, and in defense to which falsity of the charge cannot be shown. Parker v. Langly, 10 Mod. 209; Fortman v. Rottier, 8 Ohio St. 548; Bump v. Betts, 19 Wend. 421; Barnett v. Reed, 51 Pa.St. 190; Jenings v. Florence, 2 C.B. (N.S.) 467; Churchill v. Siggers, 3 El. & Bl. 929; Wentworth v. Bullen, 9 Barn. & C. 840; Wood v. Graves, 144 Mass. 365, 11 N.E. 567; Everett v. Henderson, 146 Mass. 89, 14 N.E. 932; Savage v. Brewer, 16 Pick. 453; Bicknell v. Dorion, Id. 478. In the case at bar the grievance of the plaintiff is not that the defendant maliciously commenced a groundless suit. He admits that the plaintiff had a good cause of action, and that there is no defense to the suit, and that its termination cannot be in his favor. Nor is his grievance that the defendant abused the process in the former suit, and, under color of it, did things not authorized by its terms. His grievance is that the defendant, having a just cause of action, and a legal suit against this plaintiff, made an excessive attachment of property, which he knew was not...