178 Mass. 111 | Mass. | 1901
This suit was prematurely brought.
The plaintiff is right in his contention that the declaration sets forth what would have been an abuse of process had the action in which he was arrested been founded on a just claim. But he is wrong in his contention that for that reason it was not necessary to dispose of that action before bringing the one in question. He alleged and proved that the action in Maine was a groundless one, and the ordinary rule as to malicious prosecution applies, namely, that he cannot bring an action to try the issue which is raised by the former action while that issue is pending in the action of which he complains.
Not only has the plaintiff in the case at bar alleged that the suit was 'a groundless one, but he cannot tell the story of the wrong of which he complains without disclosing that fact. For that reason the case does not come within the rule thatit is sufficient to prove part of an allegation in a writ, if it be divisible and capable of a partial proof, provided the part proved is actionable.” Buddington v. Shearer, 20 Pick. 477, 478.
There is no hardship on the plaintiff in requiring him to try the action in Maine before bringing this action. He must go to Maine and defend that action at some time; the necessity of doing so is the very thing of which he complains here; if he had done so, before this action was brought, the injury done him would have been made to appear more clearly than in any other way.
Exceptions overruled.