¶1 The Court,
¶2 charged the jury, that the first question to be considered by them, was whether the defendant instigated and prosecuted the indictment alluded to against the plaintiff. The fact that his name was endorsed on the indictment as a witness, was not of itself sufficient evidence to establish that point; but if they were satisfied from all the evidence before them, that he was the active agent, or was instrumental in bringing the charge in that case before the attorney general and the grand jury, then he was the prosecutor in the case; *326 and for that purpose, the jury might consider the fact that his was the only name endorsed on the indictment as a witness, and that he was the only witness examined for the prosecution on the trial of the indictment. It should also appear, which the record proved, that the plaintiff was acquitted on that trial, and that there was in point of fact, no reasonable ground or probable cause for preferring such a charge against him, and if the defendant was the originator and the instigator of it, that he was actuated by a malicious motive in preferring and prosecuting it against the plaintiff. And as to probable cause, it was incumbent upon the plaintiff in such an action as this, to make some proof that there was no reasonable ground for the charge and that it was without any probable cause to sustain it or to induce a candid belief in it. If their verdict should be for the plaintiff, the measure of the damages should be the expenses incurred by him in the prosecution of the indictment against him. The jury might also take into consideration for this purpose, his arrest and imprisonment, the character of the accusation preferred, his arraignment and trial for such a felonious offence and all the circumstances of aggravation attending it.
¶3 Plaintiff had a verdict for $300.
¶4 C. S. Layton, for the plaintiff.
¶5 Fisher and Smithers, for the defendant.