Per Curiam,
Mason, Chief Justice.We think the court below erred in rendering judgment for costs against the plaintiff in error. The act relative to criminal proceedings renders the private prosecutor liable only when the accused has been “ acquitted oil his trial.’' Laws of 1843, page 151, section 29. The only mode in which it is to be ascertained whether there has been a private prosecutor is by the endorsement upon the indictment, and where there is no indictment there can be no such endorsement.
Appended to the same act, which provides for rendering the private prosecutor liable, are some additional sections, one of which declares that “ no costs shall be rendered by the court in the event of the acquittal of a person charged with a criminal offence against the private prosecutor unless the court is satisfied that the prosecution is malicious.”
These two provisions when taken together do not authorize the grand jury nor the court to impose a liability upon any person, on the ground of his being a private prosecutor, except in the precise manner therein *454pointed out. An indictment must have been found—the name of the private prosecutor thereon endorsed—the accused must have been acquitted on the trial and the court must have been satisfied that the prosecution had been malicious. This last fact would have been inferred from the action of the court in this case, but the other three did not exist and they are all material.
Judgment reversed.