The opinion of the court was delivered, July 25, 1853, by

— If the decision of a jury, in a criminal case, that the defendant shall pay the costs, be conclusive of the existence of probable cause for the prosecution, their order, imposing them upon the prosecutor, should be equally conclusive of its non-existence. And if the decision against the prosecutor conclusively establishes the cause of action, in a demand of damages for malicious prosecution, there is no reason why the penalty imposed, and the compensation recovered by means of the sentence for costs, including the defendant’s bill, should not be equally conclusive upon the amount of damages. Thus, in many cases, the remedy for malicious prosecution' would be greatly impaired, and all adequate compensation for the injury denied. To impair the remedy for a wrong, is to encourage its perpetration; to throw obstacles in the way of obtaining adequate redress for malicious prosecutions, is to encourage them. This was no part of the object of the Act of 8th December, 1804. On the contrary, so far from encouraging malicious prosecutions, its object, as declared in the preamble, was to discourage them, by transferring the liability for the expenses from the county to the parties. This was not provided as a substitute for the common law action for malicious prosecution, or for the statutory remedy of double damages, but was merely designed as an independent and cumulative enactment, to discourage the tendency to “trifling and unfounded” prosecutions, produced by the laws which enabled the parties to litigate at the expense of the county.

To hold that a defendant in a criminal prosecution, is barred of all remedy for the unjust accusation, merely because his adversary, by means of his own false testimony perhaps, has succeeded in putting the costs on him, would be justifying one wr ong by another. The decision of the jury, touching the payment of the costs, does not necessarily depend upon the presence or absence of probable cause. This may very properly form an ele*273ment in making up tbe decision, but there are others which enter legitimately into it, and the jury are not restricted. For that reason, and for tbe additional one that tbe criminal proceedings are not between tbe parties to tbe civil suit, tbe decision of the jury on the question of costs, is not conclusive. Tbe record of tbe criminal prosecution may be good evidence of tbe facts, that a prosecution was actually commenced against tbe plaintiff; that it,has terminated in his favor j and that tbe defendant was tbe prosecutor; but tbe decision of tbe jury respecting tbe payment of'the costs, is certainly not conclusive upon a question, not necessarily involved in tbe issue. Tbe error assigned is not sustained.

Judgment affirmed.