White v. Apsley Rubber Co.

Barker, J.

It is conceded that criminal proceedings were begun against the plaintiff by a sworn complaint made to a trial justice charging that the plaintiff had wilfully and maliciously injured the personal property of the defendant, and that a warrant for the plaintiff’s arrest was issued upon the complaint and placed in the hands of a police officer who then went to the house where the plaintiff was. The evidence tended to show that the plaintiff was arrested upon this warrant at the house and kept under arrest for some minutes during which he went with the officer to the defendant’s office and then returned with him to the house and that he was not released from the arrest until he had abandoned a claim to the right to occupy the house and had left it finally taking away with himself and *341 his wife such goods of his own as were in the house when he was arrested.

The evidence also tended to show that the defendant caused the making of the complaint and the arrest, and made use of the arrest to compel the plaintiff against his will to abandon a claim to the right to occupy the house and to compel him actually to withdraw from its occupation. The warrant has never been returned and since it was issued there has been no judicial action upon the complaint. The fact that the prosecution has not been terminated bars any recovery upon the counts for malicious prosecution. Cardival v. Smith, 109 Mass. 158 . Wood v. Graves, 144 Mass. 365, 366 . See Wilson v. Hale, 178 Mass. 111 . But that fact is not a defence to the counts for abuse of process. Wood v. Graves, ubi supra. A misuse of the warrant and the arrest to compel him to quit the house and relinquish his claim to the right to its occupancy would give- him a right of action.

Exceptions sustained.