2 Mass. App. Ct. 819 | Mass. App. Ct. | 1974
This is an appeal from an order sustaining a demurrer to a declaration containing a single count in tort for malicious prosecution. Of the grounds stated in support of the demurrer, we need consider only one, to wit, that the declaration was “vague and indefinite.” We construe this to be an assertion that the plaintiff did not comply with G. L. c. 231, § 7, Second, which requires that a declaration state “concisely and with substantial certainty the substantive facts necessary to constitute the cause of action.” The declaration in the present case alleged only that a criminal complaint filed in a District Court and charging the plaintiff with larceny had been "after trial, dismissed [by the court], and by a judgment thereof, of the premises charged against him by the said complaint.” It did not specify the nature of the dismissal or otherwise make clear that the prosecution had been finally terminated in favor of the plaintiff. See Bannon v. Auger, 262 Mass. 427, 432, 433-434 (1928); Jacobs v. Mann, 300 Mass. 258, 260 (1938); Dangel v. Offset Printing, Inc. 342 Mass. 170, 171 (1961); Restatement: Torts, § 658; Prosser, Torts, § 119, pp. 838-841. In these circumstances the demurrer was properly sustained. Gordon v. Greany, 304 Mass. 677 (1939). White v. Shulman, 325 Mass. 759 (1950). The order sustaining the demurrer is affirmed without prejudice to any motion which the plaintiff may file in the Superior Court, within thirty days of rescript, to amend his declaration.
So ordered.