(specially concurring) : I believe it was error to admit the evidence in regard to the attorney’s lien, and also the recitals in the justice’s docket stating the reasons for the justice’s decision upon the preliminary examination. It is with considerable reluctance that I concur in a reversal, however, as it seems to me that the defendant established the fact that the prosecution was instituted upon the advice of the state’s attorney of Foster county, after a full, fair, and honest statement of the facts, in a manner so conclusive that it is at least debatable whether there was any issue of fact to submit to the jury with respect to this defense. In any event the evidence on behalf of defendant on this feature of the case was so strong and convincing that it is difficult to see how any different result could ever be reached than that reached by the jury in this ease.
In view of the different defenses interposed, it seems to me that upon a retrial it would be desirable, if the trial court would direct the jury to make findings upon particular questions of fact. And this is especially true with respect to the questions involved in the defense of the advice of the counsel.