This case, when divested of its unnecessary special pleading and rulings thereon, none of which raises any issue -which the plea of-not guilty would not have presented, is less complicated than at first view appears. There are three counts of the complaint, the first and third being in trespass for false imprisonment, and the second, case for malicious prosecution. Neither of the counts was subject to the demurrer interposed to it.
There was, on the trial, no claim on the part of the plaintiff, that the imprisonment complained of was other than by a lawful officer, under-a legal warrant of arrest, duly issued by a magistrate upon a 'complaint, under oath, regularly made by the defendant, according to the statute, charging the plaintiff with the offense of obtaining goods by false pretenses. It is not pretended that the defendant otherwise took any part in the plaintiff’s arrest or imprisonment. This being so, there can be no recovery by the plaintiff on the first and third counts, and they may as well be eliminated from the case. — Rhodes v. King, 52 Ala. 274; Rich v. McInnery, 108 Ala. 345. Unless a different -case is made on another trial (which is not reasonably to be anticipated), the plaintiff must be confined to his action for malicious prosecution upon the second count of the complaint; and to this the plea of the general issue is all that is necessary to make any defense indicated by the present record. Upon the trial of that count the general issue will make it incumbent upon the plaintiff to introduce the complaint and warrant of arrest, or legally account for their absence. On the trial appealed from it was shown by the testimony of the magistrate who issued the warrant that the papers were returned to him, and according to his best recollection were left by him with the grand jury, at the fall term, 1894, of the court, and he had not seen nor heard of them since. He made the necessary and proper search among his own papers, vyhere those in question ought to- have been, if he still had them, without success. The only other effort to find them was an unsuccessful search made by the clerk of the court among the papers which the foreman of the grand.jury delivered to him, as clerk, upon the adjournment of that body, at said term. No member or officer of the grand jury was examined to ascertain whether all *617tlie papers which came into the hands of the jury at that term were delivered to the clerk or not, and if they were not, no effort was made to find and make search among those not delivered. We think, under the authority of Boulden v. State, 102 Ala. 78, a case very similar to the present on this point, the proof of loss was not sufficient to let in secondary evidence of the contents of the affidavit and warrant. The opinion, in the case supra, will indicate wherein the proof was deficient. Nor do we think the custom of the foremen of grand juries to turn over the papers before the grand jury to the clerk, upon adjournment of court, of which proof was admitted, could be properly looked to by the court to supply a missing link in the evidence necessary to admit the proposed secondary evidence. Such a custom might be considered in aid of other evidence tending to show that all the papers which went into the possession of the grand jury, at the particular term in question, were delivered to the clerk.
Whether or not the plaintiff, shortly before his arrest, tried to get the witness, Broxson, to run some teams of his to Florida to prevent their attachment for the debt due by plaintiff to defendant and R. Tillis, was in no wise relevant to any issue in the cause, and proof on the subject was properly disallowed.
The plaintiff testified to certain conversations had by him with defendant, and statements therein made by defendant, having a tendency to show malice on his part in suing oút the warrant. The court properly permitted the plaintiff to be asked, if he made any reply to what the defendant said. The whole conversation, what was said by both parties, was admissible. The answer of the witness, however, that he had not given defendant a mortgage, and that defendant said he wanted a mortgage on the team, was not responsive. It was, however, a material fact and part of the conversation, was independently relevant and admissible, and defendant cannot complain that the court declined to exclude it. Being relevent evidence, the party whose question elicited it only can complain that it was not responsive.
It was proper, as shedding some light on the question of malice and good faith in instituting the prosecution, to permit the plaintiff to testify that, in the conversation, something was said about the charge of false pre-*618tenses; that lie told defendant that he did not obtain any goods by false pretenses, and that defendant said, “if it was not false pretense fine lawyers would make it look mighty like false pretenses.”
It is necessary to the maintenance of the action of malicious prosecution, that the plaintiff show to the reasonable satisfaction of the jury, that the proceeding was instituted maliciously and without the existence of facts or circumstances sufficient to create probable cause for believing the party proceeded against was guilty of the charge preferred. Both these essentials, viz., malice and want of probable cause, must be shown to have existed, or the action fails. It is in the interest of the public that offenders be brought to justice ; and, in all cases, where there is probable cause for believing a person has committed a criminal offense, the prosecution of which is demanded by the public welfare, it is a public duty on the part of any citizen, sufficiently informed of the facts, to take the necessary steps to bring the case to judicial investigation ; and this being so, it would be a policy pernicious to society were the law to permit the legal propriety of a. prosecution,. supported by such probable cause, to be determined by a consideration of the private motives, whatever they might be, of the party instituting it.
So, also, it would be against the public welfare, as well as work private injustice, if every citizen who begins a criminal prosecution should be made, by law, a guarantor of the existence of probable cause, without regard to the motive which actuated him to begin it. But few would be willing to take steps to apprehend and bring violators of the law to justice, if, though acting with no other motive than the lawful one of discharging a public duty, they should be held as guarantors that, as matter of law and fact, there existed probable cause for believing the party guilty. Hence it is, that if a person, in good faith, without malice, institutes a criminal prosecution, he is not responsible to the party charged, in an action for damages for malicious prosecution, though, in point of fact, the circumstances were not sufficient to create probable cause ; but, if actuated by malice, he takes upon himself liability in damages, if it is made to appear against him that the facts touching guilt were not such as to create probable cause for be-. *619lieving the party guilty, and he was not justified by advice .of counsel to which we will refer.
1 ‘Malice may be inferred from the want of probable cause for setting the prosecution on foot.” — McLeod v. McLeod, 75 Ala. 483. But this does not mean that it must necessarily,be so inferred, in all cases. The want of probable cause may have been so apparent or palpable that the mind of the jury -would be naturally led by that fact alone to conclude that the prosócution must have been malicious ; -whereas, on the other hand, the ■ circumstances might have been such that, though when closely weighed and legal rules applied, did not create probable cause, yet were sufficient to induce the mind of the jury to require further proof of malice. It-is always a question for the jury whether a want of probable cause alone justifies an inference of malice ; at least, if there is any evidence tending to show that there was such cause, or that the prosecutor honestly believed there was. — Jordan v. A. G. S. R. R. Co., 81 Ala. 220; Lunsford v. Dietrich, 86 Ala. 250. But for its reference to false imprisonment, of which there was no evidence, and which could not coexist with malicious prosecution on the same facts, charge A given for plaintiff asserted a correct legal proposition. When that instruction is given, however, in order to obviate. misleading tendencies, the jury ought to be fully instructed, in connection with it, in the principles here adverted to.
In the present case, leaving out of view the matter of the advice of counsel, there was not, upon the undisputed evidence, probable cause for believing that the plaintiff was guilty of the offense charged. . Taking every fact of which the defendant claims to have been informed, and upon which he acted, to have been -literally true, the plaintiff was not guilty of the statutory offense of obtaining goods by false pretenses. There was, therefore, no error in giving charge B for plaintiff.
But, defendant insists, and offered evidence to prove, that before suing out the warrant he fully and fairly laid before a reputable practicing attorney and counsellor at law all the facts within his knowledge, and which could be obtained by him by the exercise of reasonable diligence, touching the question of the plaintiff’s guilt of the offense charged, • for his advice and direction whether or not, upon such facts, there was probable *620cause for believing the plaintiff, guilty ; that he was advised by the attorney that, upon the facts as stated, the plaintiff was guilt}'', and that he relied, in good faith, upon this advice in suing out the warrant.
It is a well settled and familiar rule of law that such advice so sought, obtained and acted upon, is a complete defense to the action for malicious prosecution. The rule and its requirements may be found fully stated,in the case of McLeod v. McLeod, 73 Ala. 42; Ib., 75 Ala. 483, as well as other decisions of this court, and it is unnecessary to repeat them here. The reasons which ' gave rise to it are variously stated in the books ; some saying that the advice so obtained and acted upon rebuts all inference of malice ; some that it supplies probable cause, and others that it does both. Under either theory, a prosecution cannot be said to have been malicious and without probable cause, if the legal advice was obtained and acted upon according to the rule. Hence, a charge which declares the defendant guilty if he began the prosecution maliciously and without probable cause (it having been ended), is correct and properly given, though no express reference is made to advice of counsel of which there is evidence. Any misleading tendency arising from a want of such reference in the charge can be obviated by an explanatory instruction. It is upon this principle that advice of counsel can be given in evidence under the general issue. Charge C and D given for plaintiff would, therefore, have been properly given if they had not assumed, as fact, instead of leaving to the jury to determine, that the plaintiff had suffered wounded feelings and injured reputation. In fact, we see no evidence to show injured reputation. For these faults, these charges were erroneously given.
The attorney whose advice will be received is not one usually defined in the books as being “learned in the lawM Though, with us, it is presumed that one admitted to the practice is “learned in the law,” yet as it is not a practical requirement of the rule under consideration, it would be taking a step too far to require a party to insure that his selection was of an attorney “learned in the law.” The definition, if adopted, might mislead the jury, since the advice of a reputable practicing attorney will protect the prosecutor — the- other conditions being present — whether, in fact,, he is learned in the *621law or not. We suggest, therefore, for the sake of precedent, that if charges E, F and G, which were given for plaintiff, be requested on another trial, they should be so modified as to substitute “reputable practicing attorney” for “attorney learned in the law.” The charges, we think, were otherwise unobjectionable.
Ve have said that under all the facts of the case, aside from the advice of counsel, there was no probable cause to believe the plaintiff guilty. Therefore, charge 16, requested by defendant (which would be construed by the jury to apply only to those facts), though asserting, generally, a correct legal proposition, was properly refused in this case.
Charges 17 and 19 requested by defendant, being the affirmative charges in his favor on the counts for false imprisonment, ought to have been given, and the court erred in refusing them.
. Charge 18 was properly refused. The question of guilt of malicious prosecution was clearly one for the j^y-
Charge 5 requested by defendant seems to state all the elements of a legal defense based on advice of counsel, and ought to have been given ; but charges 8 and 11 do not hypothesize that defendant acted, in good faith, on the advice, and were properly refused for that reason.
This disposes of all the questions raised by the record, which we deem at all necessary to be decided as guides upon another trial.
Reversed and remanded.