
    State versus Forsyth.
    THE defendant had been tried in the County Court, upon an indictment for an assault, and acquitted; and the Court, thinking that the prosecution was malicious, adjudged the prosecutor to pay the costs. At a subsequent term, however, the Court reconsidered this judgment, and directed the defendant to pay the costs; from which order he appealed, and now moved that the Court should go into the examination of witnesses who were attending, in order to shew that in truth the prosecution was malicious, and that therefore the first determination of the County Court was proper.
    If the prosecutor had probable cause, tho' his motives were of the worst kind, he ought not to pay costs. If the County Court order the prosecutor to pay costs, and at the next term revoke this order, and order the defendants pay them, although such a proceeding is improper, on an appeal from the last order, the Superior Court will not go into an examination of the fact, if the whole record of the cause has not been brought up.
   But

the Court,

although they expressed themselves strongly against the practice of a County Court’s setting aside their judgment rendered at a preceding term, were of opinion, that they could not with propriety go into the examination, unless the whole record of the cause below had been brought up, and a jury impannelled under their direction to try the issue de novo.

That the question of costs did not simply depend upon the motives of the prosecutor, but upon the guilt or innocence of the defendant; which ought first to be duly ascertained. That if the prosecutor had probable cause, though his motives were of the worst kind, he ought not to pay the costs; and it is possible that, upon a trial of the whole case, he might have directed proofs to that point, which may now be excluded, from the nature of the enquiry. That to determine the question upon this appeal, would be to give judgment upon the incident of a cause, which properly belongs to that jurisdiction which has cognizance of the principal subject matter.  