The Complainant, in a misdemeanor case before a justice of the peace or county judge, is responsible for the costs only when the complaint was malicious or without probable cause. In a case like that at bar, where the complaint was dismissed and no trial had on the merits, the complainant (or other person as security) can only be held for costs where, before issuing the warrant, the magistrate shall require, and the said complainant shall, with or without security as required by the magistrate, acknowledge himself responsible for costs in case the complaint shall be dismissed, as provided in sec. 287,‘Comp. Stat., 710. And then only when the magistrate shall, on entering the order of dismissal, also in some way adjudge, decide, order, or enter the opinion that the complaint' was without probable cause. In that case the magistrate should then and there enter a judgment against the complainant or such other person as has, under the provisions of said section, acknowledged himself bound for the costs. The agreement to pay • costs, set out in the petition, is not such an one as the law provides for the magistrate to take; and while, had he found that the complaint was without probable cause, and proceeded to enter judgment for costs against the signers of said agreement, the same might have been held binding, it is very clear that, being without the terms and scarcely within the spirit of the statute, no action at law could be maintained upon it, even had there been a finding that the complaint was without probable cause; and without such finding, no liability rests upon such complainant to pay the costs in any event.
The judgment of the district court is affirmed.
Judgment affirmed.