porary bar, the question arises, has it been removed? There are two points of view in which the agreement, connected with the original judgment in this case, may be regarded. The one is as a condition or qualification of that judgment, as in the case of a judgment with a reference to arbitrators to ascertain damages. In this case the judgment is not perfected nor complete until their report is received and judgment perfected accordingly. If this is to be considered as that case, it follows that the judgment is not to be enforced by action of debt in any court. It remains as lis pendens in the court where the proceeding is had subject to the control of that court alone; and the remedy for the plaintiff, in case the hearing before arbitrators is prevented, is to apply to that court to vacate both the judgment and the reference, and proceed with his action. It is evident that the proceeding in such case is not at an end; that no other court can have jurisdiction, and that debt can not of course be brought on the proceedings. In this point of view it is apparent that nothing short of perfecting the judg ment would avail the plaintiff. The mere readiness to proceed with the hearing before arbitrators is not sufficient. The replication, therefore, upon this supposition is insufficient.

The other point of view in which the case may be regarded is this: The original judgment may be supposed to be absolute in its terms, having no allusion to the subject of the arbitration, and the agreement of the parties to be a mere matter in pais, made with reference to a satisfaction of the judgment. In this point of view it might be questionable whether the agreement would operate to bar the plaintiff's remedy on his judgment, any farther than it might suspend that remedy until the time limited for the arbitrators to make their award had expired. Were that question now open for discussion, it might perhaps be urged that the breach of that agreement would not affect the validity of the judgment; but that when the time. limited had expired, the plaintiff might have execution of his judgment, and the defendant would be driven to his remedy for the breach of the agreement. In accordance with this doctrine it might be further urged that the agreement created a mere temporary bar, existing so long and no longer than the agreement continued in force. Certain it is, however, that the willingness or readiness of either party to perform the agreement after that time could not affect the validity of the judgment.

Adopting, for the sake of argument, this view of the subject,

and treating the agreement as a temporary bar, we are still forced to consider the bar as removed when the agreement expired. That agreement expired on the first day of June, A. D. 1826, the time limited for the arbitrators to make their award. At that period their power ceased, and the submission was at an end. Subsequent to this, to wit, at March term, 1828, the plaintiff brought the second action, and at August term, 1829, the judgment was rendered which is relied upon by the defendant as a defense in this suit. That judgment was, at all events, conclusive of the controversy as it then stood; it still remains in full force, and with all its incidents. It is not competent for us to revise or reverse it, nor can we avoid its conclusive effect upon the plaintiff's claim. If the plaintiff's argument be correct, the former judgment was wrong; but if so, it can not now be remedied. Nor is the case altered by the subsequent offer, on the part of the plaintiff, to submit anew matters in controversy, agreeably to the former agreement. That agreement was at an end, and, as is to be inferred from the pleadings, by the plaintiff's own act; and no subsequent proffer of his could revive it, or affect either of the former judgments. That being the case, the replication shows nothing material to have occurred since the rendition of the former judgment; and the result is, that the replication is insufficient, and Judgment must be for the defendant.

FORMER JUDGMENT, WHEN A BAR AND WHEN NOT.-See the note to Standish v. Parker, 9 Am. Dec. 395; see also Le Guen v. Gouverneur, 1 Id. 121; Betts v. Starr, 9 Id. 94, and note; Lindell v. Liggett, 14 Id. 298; Gardner v. Buckbee, 15 Id. 256; Burt v. Sternburgh, Id. 402, and note; Thompson v. Clay, 16 Id. 108; Kilheffer v. Herr, 17 Id. 658; Cook v. Vimont, Id. 157; Cutler v. Cox, 18 Id. 152; Wright v. Butler, 21 Id. 323; Valsain v. Cloutier, 22 Id. 179; Wood v. Jackson, Id. 603, and note; Montesquieu v. Heil, 23 Id. 471; and Guernsey v. Carver, ante, 60, and note. A judgment of nonsuit or dismissal will not support a plea of res judicata: Baudin v. Roliff, 14 Id. 181. So it is held in Chase's case, 17 Id. 277, that a decree dismissing a bill is no bar to a subsequent suit, unless it is shown that there was an absolute determination that the party had no title, and that the matter is res adjudicata. But in Thompson v. Clay, 16 Id. 108, it is decided that a decree dismissing a bill for want of proper parties defendant, is just as conclusive against the complainant as a decree upon the merits, unless there is a reservation of his rights. As to what is a final judgment, so as to extinguish the cause of ac tion, see Turner v. Plowden, 23 Id. 596.

FRENCH V. SMITH.

[4 VERMONT, 363.]

PLAINTIFF WILL NOT BE COMPELLED TO BECOME NONSUITED on the trial for

the insufficiency of his evidence.

PROBABLE CAUSE is generally a mixed question of law and of fact.

TO MAKE OUT A PROBABLE CAUSE, it is sufficient if the party has reasonable ground for belief at the time of acting. Statements made by third persons to the defendant may be introduced, in order to show probable

cause.

THE FORMATION AND EXPRESSION OF AN OPINION BY A JUROR previous to the trial, on the merits of the cause, and in favor of the successful party, is ground for granting a new trial.

CASE for malicious prosecution. Smith, jun., one of the defendants, had been a school-teacher, and the plaintiff, one of his scholars; a feeling of hostility existed between the families of the plaintiff and the defendants, and one night, while Smith, jun., was teacher, his school was broken into, and a certain Gunter's scale, among other things, carried away. Four years afterwards, two or three persons informed the defendants that the plaintiff had a scale which they thought was the defendants'; whereupon, they had the plaintiff arrested and tried for the theft. He was acquitted. The scale in the plaintiff's possession was brown in color, while the defendants' was yellow; this fact the latter knew before the trial, but certain faded ink spots were pointed out to the defendants, and suggestions were made to them that the scale had been stained. The plaintiff, having adduced evidence to prove express malice in the defendants, rested. They thereupon moved for a nonsuit, on the ground that want of probable cause had not been made out. The motion was denied. Among other things, the jury were instructed "that every man who prosecutes on the strength of the story of another, which, if true, would furnish probable cause, runs the hazard of the story proving false or unfounded; for it is not law that falsehood and error can be molded into a justification through the intervention of another." Defendants excepted.

Verdict for the plaintiff. Motion for a new trial, on the ground of an opinion formed and expressed by one of the jurors before the trial, in favor of the plaintiff. The motion was based on affidavits of two witnesses, who heard the statement of the juror and of the defendants that it had not come to their knowledge until after the trial. They also moved to have the verdict set aside, and a nonsuit entered.

Hutchinson and Hubbard, for the plaintiff.

C. Marsh, contra.

By Court, ROYCE, J. In this case two principal questions are presented: 1. Whether the verdict should be set aside, and a nonsuit entered; and, 2. Whether a new trial should be granted, either for a misdirection to the jury in point of law, or for the matter disclosed in relation to one of the jurors.

The motion for a nonsuit necessarily supposes the question of probable cause in this kind of action to be solely a question of law for the decision of the court. And it is so, when it depends wholly on the evidence of records, or written documents, as also when there is no conflict of evidence, nor ground of dispute as to the facts proved: 1 Wils. 232; Brayt. 152. But, in general, if the evidence relating to this question rests in parol testimony, and especially if there is such evidence on both sides, it then becomes a mixed proposition of law and fact. Whether the circumstances relied on to show the cause for prosecuting to have been probable or not probable are true, and existed, is a matter of fact for the jury to find; but whether, supposing them true, they amount to a probable cause, is a question of law for the court: 1 T. R. 545. And in a case where there is confessedly no evidence tending to negative the existence of probable cause, the court should of course decide that the plaintiff has failed in a point essential to his right of recovery. There is no occasion to determine whether in this instance the want of probable canse was sufficiently shown, or whether the evidence was of a character for the court to pronounce upon, since we are of opinion, upon more general grounds, that the motion ought not to prevail.

The alleged right of the court to order a nonsuit on trial is to be distinguished from the practice of entering up judgment, as in case of a nonsuit, which, in England, has its origin in the statute of 14 Geo. II., c. 17, and in this state is commonly founded on the general rules or special orders of the court, as in case of ordering bail, and the like, because in all cases of the latter description there is no doubt but the court is to act without reference to the will of the party. But a nonsuit, in its legal and appropriate sense, imports a voluntary act of the plaintiff, in withdrawing his appearance to the suit; and notwithstanding the very frequent mention, in the English books, of nonsuits said to be directed on trial, we are not satisfied that the courts of that country have ever asserted the right of enforcing a nonsuit, while the plaintiff insisted on proceeding to a verdict: 1 Selw. Pr. 464; 2 Tidd Pr. 798; 2 T. R. 281.

Much less do we find, what appears to have been often decided in New York, that at common law the refusal to order a nonsuit was ever considered such a denial of right to the defendant that a writ of error would lie to correct it. If, however, the subject were to be regarded in the light of mere practice, and as not concluded by authority, still the course contended for could not be generally beneficial, except under a system of jurisprudence which regularly admits but one trial in a cause. In this state, where the right of review is given by statute, a nonsuit should not be ordered at the first trial, as the plaintiff may be able to supply the defects in his first proofs; nor at the last, because public policy will then require that the controversy should be ended.

From that portion of the charge which has been certified to us, in connection with the particular clause excepted to, it is evident that the instructions to the jury were directed, with much precision and perspicuity, to all the different features of the case, and that the rules of law usually applied to the action were correctly stated. And if in the end those instructions were duly observed and followed by the jury, there is no ground to question their verdict. But as the proposition to which exception is taken may have had a decisive influence in the case, it becomes necessary to notice it. The principle advanced goes to exclude all information received from others, if it turns out to be false or unfounded, from furnishing, or aiding to furnish, probable cause for instituting a prosecution. This we can not admit. It must be sufficient if the party has a reasonable ground of belief at the time of acting. In a previous part of the charge, the court had defined probable cause to be "an honest belief, founded on the existence of such facts as will warrant an unprejudiced mind in the conclusion that the person accused is guilty of the crime with which he is charged." And in order to reconcile this definition with the subsequent doctrine, it is necessary to hold that statements made to the prosecutor, with whatever appearance of sincerity and truth, are not to be reckoned among the facts on which his behief may be formed. But this would be to exclude the common and principal foundation of belief, and to require little less than absolute knowledge.

The position on which I have commented may be thought to derive support from the case of Hewlett v. Crutchley, 5 Taunt. 277. It was there decided that the opinion of counsel, to whom the prosecutor had submitted a statement of the transaction,