Chandler v. Sanger

114 Mass. 364

• Court: Massachusetts Supreme Judicial Court
• Decided: January 15, 1874
• Status: Published

Opinion

Gray, J.

This is not an action of tort, to recover damages for malicious prosecution, or abuse of legal process, but an action of contract, in the nature of assumpsit, for money had and received by the defendants, which they have no legal or equitable right to retain as against the plaintiff. Although the process sued out for the defendant was in due form, yet if, as was offered to be proved at the trial, he fraudulently, and knowing that he had no just claim against the plaintiff, arrested his body or seized his goods thereon, for the purpose of extorting money from him, then, according to all the authorities, the payment of money by the plaintiff, in order to release himself or his goods from such fraudulent and wrongful detention, was not voluntary, but by compulsion ; and the money so paid may be recovered back, without proof of such a termination of the former suit as would be pecessary to maintain an action for malicious prosecution. Watkins v. Baird, 6 Mass. 506. Shaw, C. J., in Preston v. Boston, 12 Pick. 7, 14. Benson v. Monroe, 7 Cush. 125, 131. Carew v. Rutherford, 106 Mass. 1, 11 et seq. Richardson v. Duncan, 3 N. H. 508. Sartwell v. Horton, 28 Vt. 370. Gibson, C. J., in Colwell v. Peden, 3 Watts, 327, 328. Cadaval v. Collins, 4 A. & E. 858; S. C. 6 Nev. & Man. 324. Parke, B., in Oates v. Hudson, 6 Exch. 346, 348, and in Parker v. Bristol & Exeter Railway Co. Ib. 702, 705. New trial ordered.