Craig v. Ginn

• Decision Date: 16 January 1901
• Court: United States State Supreme Court of Delaware
• Parties: WILLIAM CRAIG, plaintiff below, plaintiff in error, v. BENJAMIN F. GINN, defendant below, defendant in error

48 A. 192

19 Del. 117

WILLIAM CRAIG, plaintiff below, plaintiff in error, v. BENJAMIN F. GINN, defendant below, defendant in error

Supreme Court of Delaware

January 16, 1901

Supreme Court, June Term, 1900.

WRIT OF ERROR to the Superior Court for New Castle County.

The facts, contentions of counsel and authorities cited sufficiently appear in the opinion of the Court.

The assignment of error is overruled, and the judgment affirmed.

Franklin Brockson for plaintiff in error.

Martin B Burris for defendant in error.

NICHOLSON CH., and PENNEWILL and BOYCE, J. J., sitting.

OPINION

PENNEWILL, J.

This was an action in the Superior Court for New Castle County brought by William Craig, the plaintiff, against Benjamin F Ginn, the defendant, for the recovery of damages for the alleged malicious prosecution of the plaintiff by the defendant.

Under the instruction of the Court the jury rendered a verdict in favor of the defendant, the plaintiff having declined to accept a nonsuit. The plaintiff excepted to said instructions and took his writ of error, upon which the case has come to this Court.

The declaration filed by the plaintiff contained three counts; the first of which, after setting forth the charge contained in the warrant filed before the Justice of the Peace, the arrest and bringing of the plaintiff before the Justice, alleged "that the said defendant was then and there present, but wilfully neglected to offer any evidence whatever to support the said false and malicious charge against the said plaintiff, which said plaintiff was then and there ready and anxious to establish his innocence in that behalf, and the said defendant did then and there voluntarily desert and abandon his said complaint and prosecution without the consent of the said plaintiff, and thereupon, to wit, on the day and year last aforesaid, at New Castle County aforesaid, the said John W. Naudain, Esquire, so being such Justice as aforesaid, adjudged and determined that the said plaintiff was not guilty of the said supposed offense, and then and there caused the said plaintiff to be discharged out of the custody fully acquitted and discharged of the said supposed offense, and the said defendant hath not further prosecuted his said complaint, and the said complaint and prosecution is wholly ended and determined, to wit, at New Castle County aforesaid, by means of which said several premises," etc.

In the second count it was alleged that "the said defendant not having any evidence to support the said false and malicious charge, and well knowing the innocence of the said plaintiff in that behalf, then and there voluntarily neglected to bring the same on to a hearing or trial, and thereupon, to wit, on etc., at etc., the said John W. Naudain, Esquire, so being such Justice of the Peace as aforesaid, adjudged and determined that the said plaintiff was not guilty of the said supposed offense, and then and there ordered the said plaintiff to be discharged out of the custody, and the said plaintiff was then and there discharged, fully released," etc.

The third count contained the following allegation: "And thereupon the said defendant not having any ground or evidence to support the said false and malicious charge, then and there voluntarily withdrew his said complaint and prosecution, and abandoned the same, and then and there, to wit, on etc., at etc., the said John W. Naudain, Esquire, discontinued the said prosecution and dismissed the said case, and ordered the said plaintiff to be discharged out of custody, and the said plaintiff was then and there discharged and fully released of the said supposed offense; and the said complaint and prosecution is wholly ended and determined in favor of the said plaintiff as aforesaid," etc.

It is upon the third count that the plaintiff mainly relies.

In the Court below the motion for a nonsuit was based upon two grounds, viz.: 1. That there was material and fatal variance between the averments in the declaration and the proof in respect to the termination of the prosecution for which the action was brought. 2. That the mode of termination of the alleged malicious prosecution, as disclosed by the evidence produced by the plaintiff was not such a termination as the law requires for the maintenance of such an action.

On both of these grounds the Court was of the opinion that the plaintiff should not be permitted to recover, and accordingly directed the jury to render a verdict in favor of the defendant.

Such direction of the Court is assigned as error, and it therefore becomes necessary for us to determine whether the Court below was justified in disposing of the case as it did, without submitting the same to the jury.

Upon a careful examination of the record, we find that the evidence produced by the plaintiff, so far as the same is material to the question before us, consisted of the record of the Justice of the Peace before whom the alleged malicious prosecution was instituted, and a written agreement and endorsements thereon, together with the oral testimony of the plaintiff, and a party named Atwell, who seems to have been acting, if not as the agent, at least as the friend of the plaintiff.

The said record is as follows: "Action on the oath of Benjamin F. Ginn this tenth day of March, A. D. 1898, charging William Craig of obtaining under false pretense from George M. D. Hart two hundred and twenty-four and ninety-two one-hundredths dollars belonging to the said Benjamin F. Ginn, on the sixteenth day of February, A. D. 1898. Warrant issued to George W. Skeggs, Constable, this tenth day of March, A. D. 1898, for the arrest of William Craig forthwith.--George W. Skeggs, constable return--summons same day 10th of March, 1898, with prisoner in charge. After Benjamin F. Ginn's attorney and William Craig consulting together agreed to abandon the warrant and settle by mutual consent or by referee trial. The prisoner released from said charge. Before JOHN W. NAUDAIN, J. P."

There was written across the face of the record this entry, which is admitted by the plaintiff to be a part of the record: "Costs paid and settled by mutual consent. Case discharged."

The warrant on which the plaintiff was arrested was also admitted in evidence, and is substantially set forth in the record above given.

The written agreement and endorsements thereon were as follows: "Whereas, Benjamin F. Ginn and William Craig, both of Appoquinimink Hundred, are in dispute as to the amount of money due the said Ginn, as proceeds of sale of wheat and corn to George M. D. Hart on the 16th day of February, A. D. 1898, and it is desired to postpone a settlement until Saturday, the 26th day of March next, at 9.30 A. M., at the office of John W. Naudain, Esq., J. P., in order that the said Craig shall have an ample opportunity to produce his accounts. Now therefore, we hereby agree to pay to the said Ginn whatever sum shall be ascertained to be due on said accounts at the conference aforesaid, or in failure of their being able to agree, to pay whatever judgment that shall be obtained against said Craig in action at law thereon. Witness our hands and seals this tenth day of March, A. D. 1898. WM. CRAIG [Seal]. J. W. ATWELL [Seal.] Witness at signing, GEORGE W. SKEGGS."

ENDORSEMENTS:

"March 26th, 1898.

"The amount ascertained to be due from William Craig to Benjamin F. Ginn is one hundred and seventy dollars, and we hereby agree to pay the said Benjamin F. Ginn the said sum of one hundred and seventy dollars six months from the date hereof, with legal interest till paid; said sum above mentioned is agreed upon as a settlement of outstanding accounts between the said Ginn and Craig in full.

"WM. CRAIG.

"JOHN W. ATWELL."

"I hereby accept the above obligation in settlement as therein stated.

"B. F. GINN."

"September 28th, 1898.--Received of Mr. John W. Atwell one hundred and seventy-five dollars and ten cents in full of the above obligation.

"MARTIN B. BURRIS,

"Plaintiff's Attorney."

It appears from the oral testimony presented by the plaintiff that about the middle of February, 1898, he received from George M. D. Hart, for a part of the grain crop of 1897, the sum of $ 224.92; that he was the tenant of the defendant at the time, but had made up his mind to leave the farm the first of the next month; that he then owed the defendant $ 150. It also appears that when the plaintiff was arrested and taken before the Justice of the Peace, he asked for a postponement of the case, stating "that it did not suit him to attend to the case right on that day." Defendant's counsel replied, "No, he would not. That has got to be settled to-day, and right here, or you go up the road." The agreement above mentioned was then signed by the plaintiff and Atwell, and plaintiff was thereupon discharged by the Justice. It was also shown by the testimony that the costs of the case, which amounted to $ 2.50, were paid by the plaintiff and the defendant in equal amounts.

Upon this state of facts, shown and admitted by the plaintiff, we shall consider and determine whether there was such a termination of the prosecution as would enable the plaintiff to maintain his action for malicious prosecution.

It is essential to the maintenance of such an action that the plaintiff shall prove, among other things, that the prosecution was not only terminated, but terminated in his favor.

Rhodes vs. Silvers, 1 Del. 127, 1 Harr. 127; Wells vs. Parsons, 3 Del. 505, 3 Harr. 505.

Certainly it is not necessary to the maintenance of such an action that the criminal proceedings should have terminated in a verdict of acquittal. Such termination may be caused by the entry of a nolle prosequi, or in some other way; and it is unquestionably...