Jacobs v. Mann

COX, Justice. The defendant's demurrer to the plaintiff's declaration was sustained with an order that no amendment be allowed. The plaintiff's appeal from the order sustaining the demurrer is before us rightly. G.L.(Ter.Ed.) c. 231, § 96; Morrill v. Crawford, 278 Mass. 250, 179 N.E. 609; Gallo v. Foley, Mass., 11 N.E.2d 803. The action is in tort and the declaration is as follows: 'Plaintiff says that on or about the 31st day of July, 1934 the defendant, in order to injure the plaintiff in his profession and to disgrace, degrade, defame and prosecute him, with express malice and without probable cause, of his own initiation, being unauthorized in that behalf, as attorney for a supposed and then non-existing client, prepared, signed, swore and filed in the Suffolk Superior Court at Boston, a groundless, false and malicious charge or allegation against the plaintiff, thereby joining him as a party defendant and by virtue thereof he was made to answer to the unfounded charge that he, the plaintiff, conspired with other defendants to withhold from the said supposed complainant a chose in action and a certain sum of money. By reason of the malicious action on the part of the defendant, the plaintiff was caused to appear in Court and defend himself although the defendant at all times well knew that the action was unauthorized, groundless and, that he had no affirmative proof, reasonable cause or any expectation of maintaining the said charge or complaint against the plaintiff. Thereafter, at a preliminary hearing held on or about September 26, 1934 before a Justice of said Court, upon a 'motion for order' and, also after final trial, the said proceedings ended in favor of the present plaintiff, in that, the said false and malicious action against the plaintiff was in no wise maintained. In consequence thereof, the plaintiff was injured in his profession, was subjected to disgrace, suffered anguish of mind, lost a great deal of valuable time and was put to expense. All to his great damage as in his writ alleged.' It is unnecessary to consider all of the eleven grounds assigned in the demurrer for we think that the declaration is objectionable on the first three grounds in that it fails to allege concisely and with substantial certainty the substantive facts necessary to constitute an actionable cause, and that the matters and averments contained in it are insufficient in law to maintain a cause of action.