cause.

and who advised the prosecution, did not furnish a probable But the case discloses the most conclusive evidence of express malice, and shows the prosecutor to have been all the time conscious that the plaintiff was perfectly innocent. The court, moreover, place much stress upon the fact that the case laid before the counsel was false or overstated. In connection, however, with this case, it is proper to notice that of Snow v. Allen, 1 Stark. 502. That was case for maliciously suing out execution and arresting the plaintiff, after his bail had been taken in execution for the same debt. Previous to the arrest, the defendant's attorney was cautioned not to proceed; but relying on Higgins' case, Cro. Jac. 320, and the opinion of a special pleader, he persisted in his course, and the plaintiff was committed to prison. Lord Ellenborough says: "How can it be contended here that the defendant acted maliciously? He acted ignorantly." Again he says: "He was acting under what he thought was good advice, and unless you can show that he was actuated by some purposed malice, the plaintiff can not recover."

The doctrine of the charge would be less objectionable if limited to those cases where express malice in the prosecutor is clearly proved; and perhaps it was advanced, in this instance, with intended reference to such cases alone. But even this would require a distinction which seems not to have been hitherto recognized. For it is laid down in Johnston v. Sutton, 1 T. R. 545, a case which was much considered, that " a man, from a malicious motive, may take up a prosecution for real guilt, or he may, from circumstances which he really believes, proceed upon apparent guilt; and in neither case is he liable to this kind of action."

It is settled in this court, that the matter alleged in relation to the juror, if established by due proof, is a sufficient cause for granting a new trial: Deming and Wellman v. S. and E. Hurlburt, 2 Chip. 45; Brownell and Danforth v. Reynolds, decided in Bennington county on the present circuit. And, Lotwithstanding the denial of the juror, we think the allegation is supported by the affidavits. He must be supposed to have misrecollected, of which there is the greater probability, since he admits having held conversations respecting the suit. On this ground, therefore, and for a misdirection to the jury, a

New trial is granted.

ACTIONS FOR MALICIOUS PROSECUTION.-See cases and notes in this series collected in the note to Turner v. Walker, 22 Am. Dec. 336.

Probable Cause, What AmouNTS TO.—Frowman v. Smith, 12 Id. 267, in note.

PROBABLE CAUSE A MIXED QUESTION of law and of fact. Id.

GRANTING COMPULSORY NONSUITS.-It was formerly the rule in England, that the court could not nonsuit the plaintiff without his consent, but that he had a right to submit his evidence, such as it was, to the consideration of the jury: 1 Archb. Pr. 444 (12 Edn.) And this practice has been followed to some extent in this country. The question arose at an early period in the federal courts, and it was positively decided that they had no power to direct a peremptory nonsuit against the will of the plaintiff. In Crane v. Morris Lessee, 6 Pet. 598, it was said that that question "is not now open to controversy;" and Elmore v. Grimes, 1 Pet. 469; De Wolf v. Rabaud, 5 Id. 476. Subsequent cases recognized and followed the rule: Thompson v. Campbell, Hemp. 8; Silsby v. Foote, 14 How. (U. S.) 218; Castle v. Bullard, 23 Id. 172. The practice of the English courts was also adopted in some of the state courts, and by some is maintained until the present time: Holt v. Van Eps, 1 Dak. 206; Hill v. Rucker, 14 Ark. 706; Winston v. Miller, 12 Sm. & M. 550, French v. Smith, 4 Vt. 363; Smith v. Crane, 12 Id. 487; Williams v. Port, 9 Ind. 551; Kettlewell v. Peters, 23 Md. 312; Cahill v. Kalamazoo Mut. Ins. Co., 2 Doug. 124; Clark v. Hannibal etc. R. R. Co., 36 Mo. 202; in Virginia, Minor's Inst. vol. 4, pt. 1, 782. In the majority of the United States, how ever, the granting a nonsuit on motion of the defendant against the assen of the plaintiff is the recognized practice, either grown out of statutory reforms, or out of judicial decisions founded on reason and the advisability of some shorter method of objecting to the plaintiff's case made on the trial, than by the cumbersome demurrer to evidence. In an early California decision, Ringgold v. Haven, 1 Cal. 108, 113, Judge Bennett laid down the fullowing in support of the court's nonsuiting a plaintiff against his will:

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'As to the right of the court to direct a compulsory nonsuit. Upon this point we are met by a contrariety of authorities and a diversity of argument. In some of the states, the affirmative, in others, the negative, of the proposition is asserted in theory and maintained in practice. In some it is held that the court has no right, in any case, to nonsuit the plaintiff, even though his evidence be insufficient in law to support his action; whilst, in others, it is settled that a jury should be allowed to receive no cause until the court is satisfied that the evidence is sufficient in law to authorize the jury to find a verdict in favor of the plaintiff. In all, however, it is agreed, that cases may sometimes under certain forms be withdrawn from the jury, and reserved for the sole consideration and determination of the court. This last is a common ground in the English courts, in the federal courts of the Union, and in the courts of the various states. The only difference upon the subject which appears to exist, is as to the manner in which the conceded end shall be reached. In the federal courts, and in the courts of some of the states, the object is attained by means of the cumbrous and complicated machinery of a demurrer to evidence; in the courts of other of the states, through the simpler and easier process of motion for nonsuit at the trial. In both cases, the same end is arrived at; and the one remedy as well as the other can be applied only where the plaintiff shall have failed to make out a case which the law says is proper to be submitted to a jury. The former practice is constantly passing more and more into disfavor, and the latter usurping its place. Thus, at the present day, in the English courts, although it is held in theory to be op tional with the plaintiff, whether he will be nonsuited or not, and that he may compel the defendant to resort to a demurrer to evidence, yet the con

stant practice here is for the plaintiff, upon the suggestion of the judge that the evidence is insufficient to submit to a nonsuit, with leave to move the court in bank to set it aside: Graham Pr. 270. In the state of New York, the practice of compulsory nonsuit is perfectly well settled: Clements v. Benjamin, 12 Johns. 298; Pratt v. Hull, 13 Id. 334; Stuart v. Simpson, 1 Wend. 376; Betts v. Jackson, 6 Id. 173. The reasoning of the court upon this subject in Pratt v. Hull is convincing: 'The answer to this abstract question,' they say, 'can not admit of a doubt. This must be a power vested in the court. It results necessarily from their being made the judges of the law of the case where no facts are in dispute. It is a pure question of law whether, under a given state of facts, the plaintiff is in law entitled to recover. Unless this is a question of law for the courts, there is no meaning in what has been considered a salutary rule in our courts of justice, that to questions of law the judges are to respond, and to questions of fact, the jury.'

"The general rule is well laid down in Stuart v. Simpson, above cited, as follows: If the evidence would not authorize the jury to find a verdict for the plaintiff, or if the court would set it aside if so found as contrary to evidence in such case, it is the duty of the court to nonsuit the plaintiff.' The power of a court, acting according to the course of the common law, to set aside a verdict which is contrary to, or unsustained by the evidence, is too clear to admit of a doubt, and the power of a civil law court of second instance to reverse the judgment of a court of first instance, on the ground that it is against the weight of evidence, is also unquestionable. If, therefore, upon a given state of facts, a court would be obliged to set aside a verdict of the jury as against the evidence, we see no reason or propriety in submitting such facts to them for their consideration. When their determination will be a nullity, why compel them to deliberate? Such a course is neither creditable to the law nor complimentary to the jury. Nor, in adopting the practice of nonsuit, is there to be apprehended any danger of encroachment upon the rights of parties, or abridgment of the prerogatives of juries. This system of trial can be expected to operate beneficially, and with certain not fickle results, only when the practical sense of a jury is guided by, and acts in subserviency to, established principles of law, expounded and enforced by the court. We are of opinion, therefore, that the power of compulsory nonsuit should be upheld."

Subsequent cases in California act upon this rule: Mateer v. Brown, 1 Cal. 221; Ensminger v. McIntire, 23 Id. 593; Masten v. Griffing, 33 Id. 146; Abbey Homestead v. Willard, 48 Id. 614. And in most of the other states of the Union is it adopted: Stickney v. Stickney, 21 N. H. 61; Bailey v. Kimball, 26 Id. 351; Flanagan v. Wilmington, 4 Houst. 548; Pratt v. Hull, 13 Johns. 334; Stuart v. Simpson, 1 Wend. 376; Labar v. Koplin, 4 N. Y. 546; Loomer v. Meeker, 25 Id. 361; Clemence v. City of Auburn, 66 Id. 334; Silliman v. Lewis, 49 Id. 379; Bragdon v. Appleton Ins. Co., 42 Me. 259, 267; Beaulieu v. Portland Co., 48 Id. 291; Cooper v. Waldron, 50 Id. 80; White v. Bradley, 66 Id. 257; Ahrens v. State Bank, 3 Rich. (S. C.) 401; Hoeflinger v. Stafford, 38 Wis. 391; Walker v. Supple, 54 Ga. 178; Nutting v. Sloan, 57 Id. 392; Pittsburgh etc. R. R. Co. v. Gazzam, 32 Pa. St. 340; Howard Express Co. v. Wile, 64 Id. 201; Byrd v. Blessing, 11 Ohio St. 362; Louis. ville and Portland Canal Co. v. Murphy, 9 Bush, 522; Mason v. Lewis, 1 Greene (Iowa), 494; Murphy v. C. R. I. & P. R. R. Co., 45 Iowa, 661; Naugatuck R. R. Co. v. Waterbury Button Co., 24 Conn. 468; Aycriggs v. N. Y. & E. R. R. Co., 30 N. J. L. (1 Vr.) 460.

CONSTITUTIONALITY OF STATUTES PROVIDING FOR PEREMPTORY NONSUIT. An objection was raised in Naugatuck R. R. Co. v. Waterbury Button Co., 24 Conn. 468, to the constitutionality of the act of 1852 of Connecticut, authorizing the granting of nonsuits in civil actions where the plaintiff, having rested, had failed to make out a prima facie case. Said Judge Ellsworth in reply:

"There is no question in our view of the constitution but that the legis lature could properly authorize a court to nonsuit the plaintiff upon the defendant's motion. The clause in the constitution which provides that the trial by jury shall remain inviolate, presents no obstacle to this legislation. The jury have nothing to do with the relevancy and materiality of evidence or with inferences of law from facts fully established, or not denied. If all the facts claimed to be proved by the plaintiff's evidence can not, if true, make a prima facie case for him, it would be worse than idle to proceed further with the trial, since no verdict could be rendered in his favor which could be retained. It is no uncommon thing to raise the question of the sufficiency of evidence upon demurrer to evidence, wherever the court will give its consent, as the readiest way to end the trial, and this is not a violation of the constitution. The trial by jury would indeed present a singular spectacle if, because an issue in fact is joined to the jury, whatever evidence is offered by the plaintiff to prove his case must be received and considered, lest the province of the jury should be invaded, or if the fact claimed to be proved is admitted, its materiality or sufficiency may not be decided by the court. If the court come to a wrong decision, there may be an appeal to the supreme court to correct the error, and beyond this there is no relief known to the law. The statute as well as the common law requires the plaintiff to introduce evidence which fairly tends to establish a prima facie case in his favor, and if he has not done this, as we think he had not in this instance, he sustains no injury by the order for a nonsuit: Harris v. Thompson, 24 E. L. & E. 380. Besides, this mode of trying a question of law had always been practiced at the common law, and was familiarly known to the men who framed our constitution; and it is not to be believed that they meant by this clause in the constitution to restrict the courts and the legislature itself in relation to this ancient practice."

WHEN TO BE GRANTED.-The test by which to determine whether or not the plaintiff should be nonsuited on the defendant's motion, is generally conceded to be as follows: If evidence given by the plaintiff would not authorize a jury to find a verdict for him, or if the court would set it aside if so found, as contrary to evidence, it is the duty of the court to grant the nonsuit: Mateer v. Brown, 1 Cal. 221; Wombough v. Cooper, 4 N. Y. S. C. (T. & C.) 586; Colt v. Sixth Av. R. R. Co., 49 N. Y. 671; Silliman v. Lewis, Id. 379; Pratt v. Hull, 13 Johns. 334; Labar v. Koplin, 4 N. Y. 546; White v. Bradley, 66 Me. 257; Cooper v. Waldron, 50 Id. 80; Hoeflinger v. Stafford, 38 Wis. 391; Nutting v. Sloan, 57 Ga. 392; Bailey v. Kimball, 26 N. H. 351; Beaulieu v. Portland Co., 48 Me. 291; Aycrigg's Ex'rs v. N. Y. & E. R. R. Co., 30 N. J. L. (1 Vr.) 460. But where the evidence, "viewed in its most favorable light, would have warranted a jury in finding a verdict in favor of the plaintiff," a nonsuit is improper: Thompson v. Lumley, 50 How. 106; S. C., 64 N. Y. 631.

Where there is no evidence upon some material point, a nonsuit may be demanded: Ringgold v. Haven, 1 Cal. 108, 113. Or, as expressed in an Iowa decision, wherever essential or integral elements of a cause of action are wholly without proof, the court may properly refuse to allow the case to go to the

jury: Murphy v. C. R. I. & P. R. R. Co., 45 Iowa, 661, citing Allen v. Pegram, 16 Id. 164; Muldowney v. Ill. C. R. R. Co., 32 Id. 176; Way v. Ill. C. R. R. Co., 35 Id. 585; Allyn v. Boston & A. R. R. Co., 105 Mass. 77; Penn. R. R. Co. v. Beale, 73 Pa. St. 504. And so, also, Flanagan v. Wilmington, 4 Houst. 548; Johnson v. Moss, 45 Cal. 515. Not for an immaterial variance should a nonsuit be ordered: Collins v. Bradbury, 64 Me. 37; but certainly on a failure of proof: Ahrens v. State Bank, 3 Rich. (S. C.) 401; Flanagan v. Wilmington, 4 Houst. 548; Johnson v. Moss, 45 Cal. 515; Hoeflinger v. Stafford, 38 Wis. 391. If the evidence is of a presumptive nature, which might be urged with more or less effect to the jury, it is wrong for the court to take it from them: Crane v. Lessee of Morris, 6 Pet. 598. And on the motion for a nonsuit, disputed facts are to be taken for the plaintiff, and all the presumptions and inferences which could be reasonably drawn from the evidence are to be conceded to him: Myers v. Dixon, 45 How. Pr. 48; Sheridan v. Brooklyn etc. R. R. Co., 36 N. Y. 39; Shay v. Richmond etc. T. R. Co., 1 Bush, 108; Walker v. Supple, 54 Ga. 178. "Under the former practice," said the court in Loomer v. Meeker, 25 N. Y. 361, one defendant could not have judgment of nonsuit where a joint defendant had suffered a default; but the modern rule is otherwise," citing Murphy v. Dolan, 5 Barn. & Cress. 178; Murphy v. Johnson, 7 Dowl. & R. 619.

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THE MOTION SHOULD BE DENIED where the plaintiff has presented a case sufficient to go to the jury: Lehman v. Kellerman, 65 Pa. St. 489; Oothaut v. Leahy, 23 Wis. 114; Mercier v. Mercier, 43 Ga. 323; Page v. Parker, 4 N. H. 363. The mere fact that some evidence has been introduced by the plaintiff in support of his declaration, will not warrant the refusal to nonsuit, if such evidence is not sufficient to justify a verdict for him: Beaulieu v. Portland Co., 48 Me. 291, where it is said: "The rule by which courts should be guided in ordering nonsuits is correctly stated in a recent English case in the court of exchequer: 'It is not enough to say there was some evidence. A scintilla of evidence, or a mere surmise that there may have been negligence on the part of the defendants, clearly would not justify the judge in leaving the case to the jury. There must be evidence on which the jury might reasonably and properly conclude that there was negligence:' Cornman v. E. C. R. Co., Am. Law Reg., Jan. 1860, p. 176 [4 H. & N. 781]." And it is likewise said in Commissioners v. Clark, 94 U. S. 278, 284:

"Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless it be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence: Ryder v. Wombell, L. R., 4 Ex. 39. Decided cases may be found where it is held that if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have established a more reasonable rule, to wit, that before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can prop. erly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed: Law Rep., 2 Priv. Council Ap. 335; Improvement Co. v. Munson, 14 Wall. 448; Pleasants v. Fant, 22 Id. 120; Parks v. Ross, 4 How. 373; Merchants' Bank v. State Bank, 10 Wall. 637; Hickman v. Jones, 9 Id. 201."

Where the facts are controverted, or are not manifest, the cause should go to the jury: Cent. R. R. Co. v. Moore, 24 N. J. L. (4 Zab.) 830; Aycriggs v. N. Y. & E. R. R. Co., 30 Id. 1 (Vr.) 460; Keller v. N. Y. Cent. R. R. Co.,