¶1concurred' in the opinion of Anderson, J.
¶2The judgment was as follows:
¶3The court is of opinion, for reasons stated in writing and filed with the record, that to maintain this action it was *356on the plaintiff to show that the prosecution had been determined favorably to the plaintiff and in her and that the prosecution was both malicious and without probable cause, and the circuit court erred in refusing to give the two first instructions to the jury moved by the defendant’s counsel; and in giving the first instruction which it gave. It is therefore considered that the judgment of the circuit court be reversed and annulled, and that the plaintiff in error recover his costs expended in the prosecution of his writ of error here. And this court now proceeding to euter such judgment as the said circuit court ought to have rendered, it is considered that the said verdict be set aside, and the cause is remanded to the circuit court of Botetourt county for a new trial to be had therein in conformity with the opinion filed with the record and with this order. And if, upon such new trial, the defendant should ask the court to give the first and second instructions to the jury which he tendered at the •former trial, that the same be given.
¶4Judgment reversed.