¶1The rule that a verdict which is against the evidence and against the instructions of the court shall be set aside, is inherent in our system of jury trials. The verdict in the present case violates that rule. The undisputed evidence proves that the plaintiff paid, or became liable to pay, about $150 for counsel fees and to procure the attendance of his witnesses in making defense to the criminal prosecution instituted against him by the defendant. True, it does not appear by the direct testimony of any witness how much of that expenditure was necessarily incurred; but enough appears in the record to show conclusively that the testimony of the witness Hall, who resided in Nebraska, was very important to the defense in the criminal prosecution. It required no affirmative proof to inform the court and jury that to procure the attendance of such witness in Janesville would necessarily involve considerable expense. Neither did it require direct proof to show that it was necessary for the plaintiff to employ counsel to 'conduct his defense, or that $50 was a very reasonable fee for his services. That sum would be a moderate retaining fee in so important a case.
¶2The court charged the jury, in substance, that if they found for the plaintiff they should allow him for his reasonable expenses in that behalf. That this is a correct statement of the law there can be no doubt. Under that instruction, and the undisputed evidence, there is no reasonable hypothesis upon which an assessment of five dollars, or of any other sum less than $50 damages, can be upheld. There is no room to attribute the smallness of the verdict to errors of judgment. Neither is it necessary to find that it is a corrupt or even a prejudiced verdict. The probability is, that the jury supposed they had unlimited discretion in the assessment of compensatory as well as punitive damages; and hence, for reasons sat*487isfactory to them, but which do not appear in the record, made the assessment at a nominal sum. The fact remains, however, that the verdict is against the undisputed evidence and the instructions of the court, and is therefore, in that sense, a perverse verdict.
¶3If the plaintiff recovers less than $50, he recovers no more costs than damages; whereas, if he recovers $50 or more, he is entitled to full costs. This is the statutory rule of costs in actions for malicious prosecution. E. S., 771, sec. 2918, subd. 4. Because of this rule, the error of the jury in assessing merely nominal damages, when damages exceeding $50 were pleaded and conclusively proved, was a grievous wrong to the plaintiff. This court would not be disposed to disturb a verdict for unliquidated damages because it isa few dollars less or more than the proof and instructions warrant, especially if the costs were not affected by the error; yet under the special circumstances of this case we think this verdict should not be sustained. The motion for a new trial, should have been granted, and we cannot regard the denial of it as a proper exercise of the discretion of the court.
¶4By the Court.— The judgment is reversed, and the cause remanded for a new trial.