GOLDTHWAITE, J.
The only difference between this prosecution and that acted on by this Court in Burns’ case, 5 Ala. Rep. 227, is, that then the Court acted on the motion of the in*665dividual indicted, and the record did not show affirmatively that the prosecution was frivolous or malicious; whilst here the motion is made by the Attorney General, and the record shews that the Court considered the prosecution both frivolous and malicious. The act of 1826 has been called to our attention, but its terms ai'e no more general than the previous statutes contain. The act evidently treats throughout of misdemeanors as distinguished from crimes.. The first section provides that grand juries shall not be continued in session for moi'e than four days, unless cause be shown to the Court for the detention. The next is the one supposed to bear on this case, but it evidently refers to laws then in existence, and makes it the duty óf the Court, with or without a motion to that effect, to tax the prosecutor with the costs, in all cases in which the prosecution shall appear to be either frivolous or malicious. Mr. Aikin in his Digest, notices the statute, and incorporates it in the general law, as effective only to invest power in the Court, with or without motion, to tax, &c., (Aik. Dig. 123, § 55;) and in the same way it is carried into our present Digest, by Gov. Clay. [Clay’s Dig. 482, § 37.]
We have given this matter more consideration than we should have done, but from the circumstance that it is supposed this discretion to tax the prosecutor is proper, to put down frivolous and malicious prosecutions of all kinds and description. This, perhaps, is the appropriate province of a grand jury, in offences of a criminal character, as well as' in misdemeanors; but in the latter cases only,in our judgment, has the laws of the country invested the Courts with power to tax the costs. The policy of any enactment giving this discretion beyond offences of a minor grade may well be questioned; as tending either to prevent prosecutions which should be originated, or in letting off too easily such individuals as might conspire to alledge crime against innocent persons.
The judgment awarding the costs must be reversed, as having been rendered without warrant of law.