Hamilburgh v. Shepard

Decided October 21, 1875

Massachusetts Supreme Judicial Court · decided 1875-10-21

Tort. Writ dated June 11, 1873. The first count of the declaration alleged that the defendant maliciously and without probable cause… Held: as he claimed in his return, by attachment. There was no claim made that the officer in any way abused his authority under said writ, or was guilty of any misconduct in the service thereof, but only that the defendant knew he had no cause of action, and sued out said writ with such knowledge, and directed the service made thereon.

Cited by 4 later decisions — most recently March 1961

4 state decisions

Relies on Cardival v. Smith · O'Brien v. Barry

Good law ✅— No negative treatment on recordhow we know

Decided 1875-10-21

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Gray, C. J.

¶1The writ upon which the plaintiff was arrested being in due form and issued from a court of competent jurisdiction, and the arrest having been made by the officer within the scope of the authority thereby conferred upon him, the plaintiff’s cause of action, however stated in his declaration, is in substance and legal effect for malicious prosecution, and cannot be sustained without proof that the prosecution had been determined, which it had not been when this action was commenced. Cardival v. Smith, 109 Mass. 158. O'Brien v. Barry, 106 Mass. 300.

¶2Exceptions overruled.