
    John Forbes versus Abraham R. Luyster.
    Ip upon the trial of the cause, the plaintiff refuse to submit his case to the jury, after the testimony is closed, and insist upon being nonsuited, in consequence of the ruling of the presiding Judge upon points of evidence, he will not after-wards be permitted to make a case, on which to found a motion for setting the nonsuit aside.
    This was an action upon the case for a malicious prosecution. The defendant interposed special pleas, setting forth in substance, that he had probable cause for suspecting the charge made against the plaintiff to be true, and that he was not actuated by malice. At the trial, the presiding Judge decided, that under the pleadings, the affirmative of the issue was assumed by the defendant;. and having directed him to open the case to the jury, the plaintiff excepted to his opinion. The parties having proceeded in the trial of the cause, the Judge decided several questions of evidence against the plaintiff, to which exceptions were taken; and after the testimony was closed, the defendant’s counsel insisted upon submitting their case to the jury under the evidence which had been admitted. The counsel for theplaintiff objected to this course, refused to go to the jury, and insisted, (as a considerable part of the evidence upon which they relied had been rejected,) that he ought to be nonsuited. The plaintiff being called, refused to answer, and was nonsuited accordingly.
    
      Judah for the plaintiff,
    having prepared a bill of exceptions, now moved to set the nonsuit aside. But the court decided, that as the plaintiff had himself insisted upon being nonsuited at the trial, and had refused to put his case to the jury upon the evidence, he could not now be permitted to make a case, on which to found his motion to set the nonsuit aside.
   The motion was therefore denied.

[Judah, Atty. for the plff.]

Note.—Vide. 1. Barn. and Ald. 253. 13. J. R. Pratt v. Hull, 334. 5 Burr. R. 2692. 4. Ib. 1984.  