Tbis is a petition to rebear tbe above-entitled case, wbicb was decided at tbe last term and is reported in 132 N. C., 399. In tbe trial below, at tbe close of tbe plaintiffs testimony, tbe Cburt having intimated tbat tbe plaintiff could not recover, be snbmited to a non-snit and appealed.
Tbe action was for malicious prosecution. It appeared tbat the defendant had bought from tbe plaintiff a horse, and at tbe time of the purchase tbe plaintiff represented, as tbe *423defendant alleged, that the horse was sound. The defendant kept the horse about a month, when he discovered that he was not sound, and insisted that the plaintiff should take him back. The plaintiff then agreed to give a mare in exchange for the horse, representing that the mare would not balk. This proposal the defendant accepted and the exchange was made. The defendant afterwards found that the mare did balk, and then caused the plaintiff to be arrested and tried before a justice of the peace, who bound him over to court for obtaining goods by false pretences. The warrant was issued upon an affidavit made by the defendant, and the case in the Superior Court was prosecuted by him. At the trial of the indictment upon this charge the plaintiff was acquitted. Another indictment was sent against the plaintiff at the same term for obtaining goods by false pretences, it being based upon the first transaction — that is, the purchase of the horse. The particular allegation of the indictment was that the'plaintiff had represented to the defendant that the horse was sound, which representation was known to be false, and by reason thereof the plaintiff had obtained the price of the horse from the defendant. The defendant was acquitted also at the trial of this indictment, and the Court, having found that the prosecution was frivolous and malicious and not required by the public interest, directed that the defendant in the present case, Huffines, be marked as prosecutor, and adjudged that he pay the costs of the prosecution.
At the trial of this case for malicious prosecution, which is based, as we have said, upon the second transaction — that is, the mare trade' — the plaintiff proposed to introduce as evidence the finding and order of the Court by which the defendant was marked as prosecutor and taxed with the costs in the second indictment, but upon objection from the defendant the evidence was excluded and the plaintiff excepted.
At the last term, when this case was heard, it was supposed, *424and was so stated in tbe opinion, that tbe two indictments were based upon one and tbe same prosecution, and that tbe case was therefore witbin tbe principle of tbe decision in Hinson v. Powell, 109 N. C., 534. Upon a more careful examination of tbe record we are satisfied that tbe two prosecutions were not tbe same, nor were they practically tbe same, so as to render tbe proceedings in regard to tbe second indictment competent as evidence in tbe trial of tbe first indictment. In order to bring tbe case witbin tbe principle of Hinson v. Powell, supra, tbe two indictments must bave been for. tbe same offense and not merely for similar offenses. In other words, there must be a complete identity between tbe two prosecutions, and tbe second must bave been instituted without any evidence additional to that introduced at, tbe trial of tbe first indictment, in order to show the absence of probable cause and to raise tbe presumption of malice. We do not think tbe principle of that decision applies to this case, as tbe facts now appear to us.
We are further of the opinion that the proposed evidence was properly excluded, as tbe order of tbe Court by which tbe defendant was marked prosecutor and taxed with the costs could not for any purpose be competent against the defendant, not even to show malice or tbe absence of probable cause. That was a proceeding merely for tbe taxation of costs, to which tbe plaintiff in this case was in no sense a party, and the finding and order of the judge could no more be evidence in bis behalf, for tbe purpose of showing malice or of estaN lisbing any other fact necessary to a successful prosecution of this suit, than could be tbe action of tbe Cburt in any other judicial proceeding to which tbe plaintiff was not a party. It adjudges nothing and proves nothing as between tbe plaintiff and tbe defendant in this case, and is res inter alios acta. It cannot bind or affect this defendant as an estoppel or under tbe principle of res judicata, because in order to do so both *425parties in tbis suit must bave been parties to tbe litigation out of wbicb tbe estoppel arose or in wbicb tbe adjudication was made, and it cannot be evidence for tbe same reason. Wbat was said and done by the judge is, as to tbe parties to tbis action, nothing more tban tbe expression of bis opinion that the prosecution was malicious and that tbe defendant should be marked as prosecutor and taxed with tbe costs. Tbe case of Casey v. Sevatson, 30 Minn., 516, seems to be directly in point. In that case the Court said: “In the course of the trial of tbe present action tbe plaintiff offered in evidence tbe docket entries of tbe justice in tbe alleged malicious prosecution, which, among other things, contained the following: ‘Upon due consideration of tbe evidence given in tbis case it is adjudged that tbe complaint was malicious and without probable cause, and that Erick Sevatson pay tbe costs of tbis action.’ Defendant specifically objected to tbe admission in evidence of that part certifying that tbe complaint was malicious and without probable cause, but tbe objection was overruled and exception taken. Defendant also excepted to tbe Court’s refusal to instruct tbe jury to disregard tbe docket entries, ‘so far as they relate to tbe complaint being malicious and without probable cause.’ The entry referred to was made by tbe justice in conformity to a provision of tbe statute. Tbis provision is evidently framed for tbe sole purpose of relieving tbe public of costs by saddling them upon tbe complainant, through whose unjustifiable action they bave been incurred. It could never bave been intended that tbe certificate should have the effect of an adjudication in favor of tbe party complained of and against tbe complainant, that tbe complaint was malicious and without probable cause; for, first, the proceeding in wbiob it is made is not between those parties, but, as respects tbe complainant, purely res inter alios; and, second, it is not tbe result of any proceeding wbicb can be called a ‘trial,’ as respects tbe complainant. And yet, if tbe *426certificate is to be received in evidence at all in an action for malicious prosecution, it must be received as a species of adjudication or judgment. Certainly it would not be admissible as the mere opinion of the justice. We think the learned Judge erred in receiving the entry objected to in evidence, and in refusing the instruction to disregard it.”
We must not be understood as deciding that the record of the second indictment is altogether incompetent, as we have only referred to that part of the record in which the prosecution is adjudged to be malicious and the defendant is taxed with the costs. It may be that the record of the plaintiff’s acquittal would be evidence in this case to show malice if it established by competent proof that the second indictment was instituted by the defendant with malice. Brink v. Black, 77 N. C., 59; State v. Weaver, 104 N. C., 758. But the entry on the record, which the plaintiff proposed to introduce, was not such evidence as could be heard for that purpose. We therefore hold that the entry was incompetent and was properly excluded by the Court, and in this respect the former opinion is modified.
This does not change the judgment of the Court by which a new trial was awarded. The lower Court instructed the jury that there was no evidence upon which the plaintiff could recover. In this there was error, as we find it stated at page 17 of the record that the defendant Iiuffines, speaking of the prosecution for false pretences, had declared that he would spend a thousand dollars in order to' have his revenge. This was, of course, some evidence of malice, and, as the Court virtually withdrew the case from the jury by its ruling, the plaintiff is still entitled to a new trial because of this error.
We do not understand the defendant in his petition for a rehearing to ask distinctly for an affirmance of the judgment below, but rather for a modification of the former opinion of this Court, so that he will not be prejudiced at the *427next trial by tbe erroneous ruling in regard to the entry on the record in indictment No. 103. This error is corrected, but the former decision must stand and the petition to rehear will be dismissed, as there was other evidence in the case which tended to prove malice and which should have been submitted to the jury.
Douglas, - J., concurs in result only.