Cody v. Adams

73 Mass. 59

Opinion

Dewey, J.

The St. of 1854, c. 63, has enacted that “ no person shall be arrested on mesne process, in an action of tort, unless the plaintiff, or some one in his behalf, first makes oath that he believes that the cause of action set forth in the writ is just and true.” The case discloses that the defendant commenced such an action against the plaintiff, and caused him to be arrested and committed to jail, without such oath having been previously made. The case shows an unlawful act on the part of the defendant, for which he is properly sued, under the St. of 1852, c. 312, in an action of tort. The illegality of the arrest does not depend upon the question, whether the suit was malicious and without probable cause, but upon the want of the required preliminary oath that the cause of action was just and tame. The cáse was properly submitted to the jury.

Exceptions overruled