delivered the opinion of the Court:
This is an appeal from the circuit court of Mercer county, from a judgment rendered in an action on the - case for malicious prosecution and false imprisonment.
The only error assigned is, that the finding is not sustained by the evidence, and a new trial should have been awarded. It appears appellant had instituted a prosecution against ap-pellee for perjury, which, oh a full hearing, had been dismissed ánd appellee discharged.
It is insisted by appellant, that there was probable cause for instituting the prosecution. On this fact the controversy turned.
*295There was much testimony on both sides fairly submitted to the jury. It seems there was a question whether or not McDowell, who borrowed the jack-screws of appellee, did so as the agent of appellant. It is useless to examine all the evidence upon this point ; it is sufficient to say that the weight of the evidence is, that appellee did not so testify at either trial before the magistrate.
We have examined the evidence carefully, and can not find anything in it to justify a prosecution for perjury against appellee. ' It is not proved appellee testified as appellant, in his affidavit for the warrant, swore he did.
All the facts and circumstances have been carefully scanned by the jury, and we coincide with them in the opinion that there was no probable cause for the criminal prosecution. It is a very serious matter to cause a citizen to be arrested on a charge so infamous as that of perjury, and he wrho does so should be careful to see that he is able, when called upon, to show'probable cause for the arrest. This,'appellant has failed to do, and the judgment must stand.
Judgment affirmed.