The president pronounced the opinion of this court, that the court below invaded the province of the jury, in relation to the weight of the testimony, and the credibility of the witnesses, in having decided that, in this case, probable cause was proved to exist, at the time the appellee commenced the prosecution in the declaration mentioned, without having the facts, on which such question depended, agreed by the pleadings, or submitted to, the court by the parties or the jury.

Judgment reversed, and new trial awarded,