The Doctrine of the Principal Case, that a gift for the perpetual maintenance and preservation of a private burial place, is not a charitable use, is sustained by the decided cases: See the monographic note to Hoeffer v. Clogan, 63 Am. St. Rep. 257. Charitable uses and trusts are not within the rule against perpetuities: Mills v. Davison, 54 N. J. Eq. 659, 55 Am. St. Rep. 594, 35 Atl. 1072; Lane v. Eaton, 69 Minn. 141, 65 Am. St. Rep. 559, 71 N. W. 1031; Harrington v. Pier, 105 Wis. 485, 76 Am. St. Rep. 924, 82 N. W. 345. Compare Missionary Society v. Humphreys, 91 Md. 131, 80 Am. St. Rep. 432, 46 Atl. 320. For a general discussion of the rule against perpetuities, see the monographic note to In re Walkerly, 49 Am. St. Rep. 117-138.

CASES

IN THE

SUPREME COURT

OP

DELAWARE.

CRAIG v. GINN.

[3 Penne. 117, 48 Atl. 192.]

MALICIOUS PROSECUTION-Termination of Action.-To maintain an action for malicious prosecution the plaintiff must prove that the prosecution has not only terminated, but that it has terminated in his favor. The criminal proceeding, however, need not have terminated in a verdict of acquittal, as it is sufficient if it has terminated by the entry of a nolle prosequi or in some way, as by a voluntary abandonment of the case by the person who made the complaint. (p. 81.)

of Action.-If

MALICIOUS PROSECUTION-Termination the termination of a prosecution has been brought about by the procurement of the person prosecuted, or by compromise or agreement of the parties, an action for malicious prosecution cannot be maintained. (p. 82.)

MALICIOUS PROSECUTION-Termination of Action by Agreement.-If a prisoner is discharged because of an agreement for his accommodation, whereby he and his surety bind themselves to pay whatever sum is ascertained to be due at a conference to be had between the parties, or in the event of their failure to agree, whatever judgment may be obtained against such prisoner in an action at law for that purpose, this is such termination of the action by compromise and agreement as bars an action for malicious prosecution. (p. 84.)

MALICIOUS PROSECUTION-Compromise-Fraud and Duress.-If a plaintiff in an action for malicious prosecution puts in evidence as a material part of his case a compromise or settlement of the matters in dispute in the original action, he is estopped to contend that it was obtained by fraud and duress. (p. 85.)

F. Brockson, for the plaintiff in error.

M. B. Burris, for the defendant in error.

118 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 willfully 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 119 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 hearing or trial, and thereupon, to wit, on etc., at etc., the said John W. Naudain, Esq., 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, Esq., 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.

On

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 120 was not such a termination as the law requires for the maintenance of such an action. 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 indorsements 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 plain

tiff.

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. War

rant 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."

121 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 indorsements thereon were as follows: "Whereas, Benjamin F. Ginn and William Craig, both cf 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 sixteenth day of February, A. D. 1898, and it is desired to postpone a settlement until Saturday, the twenty-sixth 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." Indorsements:

"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."

E