dissenting. [His statement of the case has been already given.] The first seven exceptions raise, practically, the question: In this action for malicious prosecution, based upon the prosecution of the plaintiff by the defendant for burglary and grand larceny, should the defendant have been allowed to introduce testimony in regard to the character of the *377plaintiff? The Circuit Judge refused to admit such testimony, holding that testimony as to character was improper, because, 1st, character not involved, therefore irrelevant; 2nd, not in reply to plaintiff’s case; and, 3rd, not making out defendant’s case.
Plaintiff, in his complaint, alleges: “That by the said prosecution the defendant did this plaintiff incalculable and irreparable injury and damage.” He does not specify how he has been injured and damaged; but his allegation is so worded as to cover all the elements of damage growing out of a malicious prosecution. Is injury to character or reputation an element of damage in action like this ? Plaintiff and his counsel seem to be of that opinion, for plaintiff, as a witness in his own behalf, on his examination in chief, and in reply to his counsel’s questions, laid particular stress upon the injury to his character caused by the criminal prosecution. It is true that he did not, in exact language, say, “that prosecution injured my character” ; but that such was his meaning, will appear by reference to what he did say. He said the prosecution “injured my feelings, and I heard the people talking about me out in the community, and I could not have any idea how much it damaged me.” How is it possible for the talk in his community to injure him except in his character? The testimony of the plaintiff was before the jury, and his character was put in issue, and thereby he did “claim damages to his character.”
The counsel for plaintiff say: “The plaintiff’s character was not assailed. The only character evidence was addressed to the proof that the plaintiff’s reputation is still good. The defendant introduced no toitness, offered no testimony, and made no attempt to prove, that the plaintiff was, at the time of the prosecution, a man of bad character.” The “Case,” by which we are bound, says that Brooks Warner, a witness for the defendant, was “offered” (introduced) by defendant “as a witness to testify as to the character of the plaintiff.” This means that the purpose for which Warner was put upon the witness stand was to prove the character of plaintiff, and that the court was advised of that purpose. This statement is supported by the ruling of the judge, which is very broad, and eliminated the issue of character from the case. The defendant’s counsel, after the ruling of the *378judge, did not ask the witness another question. It was proper for him to refrain, because he was bound to respect the ruling of the judge, and any further questions as to the character of plaintiff would have violated the ruling of the court.
What are the elements of damage in a case of this kind ? The charge in the criminal case, out of which this action has grown, was burglary and grand larceny, one of the most serious proximate effects of which would be the injury to the character and reputation of the accused. It necessarily involved his character. Generally it is laid down that the elements of damages in the action for malicious prosecution are the injury to the reputation or character, feelings, health, mind, and person, as well as expenses incurred in defending the prosecution. “In an action for malicious prosecution, indemnity is awarded for all the injury to reputation, feelings, health, mind, and person, caused by the arrest of the plaintiff; also for the injury to his fame and reputation occasioned by the false accusation.” 3 Laws. R., R. & P., page 1909, § 1104. “Malicious prosecution. No certain rule can be laid down for estimating damages in such actions. The jury are to consider all the facts and give compensation to the defendant for the injury done to his reputation, for his mental and physical suffering, and the indignity he has suffered, and the costs he has incurred in defending the previous action.” 5 Am. & Eng. Enc. L., page 48.
In the notes in the work just mentioned we find, page 18: “In Savill v. Roberts, 1 Ld. Raym., 374, the elements of damage for malicious prosecution are said to be : 1. Damages to a man’s fame, as if the matter whereof he be accused be scandalous.” “For injury to the reputation, the same elements are to be considered as are proper in the case of slander and libel.” Sheldon v. Carpenter, 4 N. Y., 579. “The measure of damages in such cases is a full indemnity to the plaintiff for all the losses sustained, including the peril to his life and liberty and injury to his reputation, feelings, and person, according to the character of the prosecution, and all expenses incurred in the defence of the original suit or prosecution, and even extraordinary expenses, as attorneys’ fees, incurred in the defence.” Field on Damages, sec. 687. To the same effect see, also, 3 Suth. Dam., 703, and *3794 Field Lawyer’s Briefs, and cases there cited, pages 430 and 431.
We think, therefore, that the ruling of the presiding judge, that “The plaintiff has not put his character in issue. He does not claim damages to his character,” is erroneous. We think that the evidence was relevant and admissible, and upon two grounds: 1st. As affecting the issue of probable or reasonable cause, and as tending to support defendant’s defence of probable cause, and to break down plaintiff’s allegation of want of probable cause for the prosecution. 2nd. As matter in mitigation of damages and, possibly, as rebutting malice.
1. As evidence of probable cause. “According to the better authorities, the defendant may prove the general bad reputation of the plaintiff, both to rebut the proof of want of probable cause and in mitigation of damages. 3 Suth. Dam., 708. This is the general rule, and it is founded upon reason. “Evidence of the general bad reputation of the plaintiff before the institution of the prosecution is admissible on the question of reasonable cause. The same facts which would raise a strong suspicion in the mind of a cautious and reasonable man against a person of notoriously bad character for honesty and integrity would make a slighter impression if they tended to throw the charge of guilt upon a man of good reputation. Bad character, added to other circumstances, might amount to such a reasonable ground of suspicion as to induce a person innocent of any malicious motive to proceed against him; for it required weaker circumstances of suspicion to commence a prosecution against a man of bad character than against a man of good character. So evidence of his good character and reputation is admissible on the plaintiff’s behalf.” 3 Laws. R., R. & P., page 1879, § 1095.
Defendant, in an action for malicious prosecution, is entitled to show that the general character of plaintiff was that of a gambler and horse racer, as it would require less stringent proof to make out probable cause for prosecuting such a character for larceny than one whose character was good, and who followed an occupation altogether lawful. Martin v. Hardesty, 27 Ala., 458; s. c. 62 Am. Dec., 773. “Among circumstances tending to show want of probable cause, the good char*380acter of the accused should be given a prominent place.” Ross v. Innis, 35 Ill., 487; s. c. 85 Am. Dec., 373. Therefore, upon the “doctrine of reciprocity,” laid down in Buford v. McLuny, 1 Nott & McC., *268, cited later on. the bad character of plaintiff ought to be admissible to sustain the defence of probable cause.
2. In mitigation of damages. “Evidence of the general character and reputation of the plaintiff is admissible, this both as affecting the question of damages and, probably, too, as affecting the question of probable cause.” 14 Am. & Eng. Enc. L., 59. “Evidence of the character of the plaintiff may be admissible on another ground,, i. e., in mitigation of damages. In order to ascertain the injury done to the plaintiff, the jury must necessarily take into consideration his personal character. If good, his damages should bo greater ; if bad, smaller.” 3 Laws. R., R. & P., page 1879, § 1095. In Buford v. McLuny, 1 Nott & McC., *268, it is decided that in an action of slander, evidence of the general bad character of the plaintiff is admissible in mitigation of damages; and the court says : “A plaintiff is permitted to put his good character in evidence by way of enhancing the damages, and upon the principle of reciprocity the defendant ought to be permitted to prove the contrary. * * * In an action for a malicious prosecution evidence of the general bad character of the plaintiff may be given. Phil. Evid., 140.”
, In action of slander, evidence of the plaintiff’s general bad character, but not of a particular criminal act, other than that imputed to him, is admissible in mitigation of damages. Sawyer v. Eifert, 2 Nott & McC., 511. In this case the court say : “There can be nothing more unreasonable than that a person who, by a long course of vice, has proved himself to be so destitute of every moral principle as to be capable of committing any crime, should be entitled to recover the same damages in an action of slander as a person of spotless fame, merely because ho has not acquired any general character, with regard to the particular crime of which he has been accused. It is within our daily experience that there are persons in every community so destitute of character, or rather so notorious for their bad character, as to furnish good ground of belief that they are capable *381of committing many offen’ces of which they have never been accused, and for which they may not have acquired any particular character.”
“In an action of slander, the plaintiff may give evidence of his general good character, though his character be not attacked by the defendant.” Williams v. Haig, 3 Rich., 362. In this case the court say: “The rules laid down by Lord Ellenborough in Stuart v. Lovell, 2 Stark., 93, cited in 2 Phil. Evid., 107, that the plaintiff will not be allowed to give evidence of the fairness of his character till his character is attacked, is clearly predicated on the assumption that the plaintiff’s character is not put in issue; and that the defendant cannot, in mitigation of damages, give in evidence the plaintiff's general bad character— and that is, perhaps, according to the current of the English decisions. But in Buford v. McLuny, 1 Nott & McC., 269, a different rule, which has since been universally followed, prevailed. There it is said that the plaintiff's character is directly put in issue by the action of slander, and that defendant may, in mitigation, give in evidence his general bad character — and this diversity in the rule necessarily leads to a corresponding mollification of the rules of evidence. It has been settled by a series of decisions in our courts that what a party cannot plead in justification, he is permitted to give in evidence by way of mitigation. 1 Nott & McC., 268. Under this rule a defendant may give in evidence under the general issue : 1st. The plaintiff's general character, without reference to the particular nature of the offence with which he is charged. 2d. Facts and circumstances, not amounting to actual proof of guilt, but going to create a suspicion.” Evidence of general character of plaintiff is admissible in mitigation of damages under the general issue. Paddock v. Salisbury, 2 Cowen, *811.
I think that the evidence wras relevant and admissible, under the pleadings in this case, upon the general issue, as tending to show probable cause, and in mitigation of damages. Hence, I think that the presiding judge erred in rejecting the evidence, and in ruling, “It is irrelevant and not in reply to the plaintiff’s case, and not making out the case of the defendant, and the defendant has got no case except in reply.”
*382The defendant’s 8th exception is: “Because his honor erred in refusing to charge the jury as requested by the defendant, ‘That in an action for malicious prosecution, the fact that the grand jury had returned “no bill” against the plaintiff, is not sufficient evidence of the want of probable cause for the prosecution which had been brought against him by the defendant.’ ” His honor refused the request on the ground that it was “improper to charge on sufficiency of evidence.” Plaintiff’s counsel contend that the trial judge charged, in effect, that the finding of “no bill” by the grand jury was not evidence at all of the want of probable cause, and that such finding was not introduced as such evidence. In passing, I would say that if the finding was in evidence at all, it was before the jury. The portion of the charge alluded to reads: “Now, you will see, the first thing, therefore, of which the jury must be satisfied, is that the proceedings complained of have been ended. In order to show that to the jury the record was produced upon which the finding of no bill was entered, and the order of the presiding judge discharging the defendant from further responsibility under his recognizance, and permitting him to go free without day, according to the form of such orders. That was submitted to you for the purpose of showing that the proceedings complained of here have been ended; that proceeding is done with.”
If this portion of the charge included the request of-the defendant, his honor would not have refused, in plain terms, to charge the request. • It was incumbent upon plaintiff to show that the criminal prosecution was ended before he began his action, and the return of “no bill” and the order of discharge established that fact. Fulmer v. Harmon, 3 Strob., 581; Caldwell v, Bennett, 22 S. C., 5. The charge was upon the issue, whether or not the criminal prosecution complained of here was ended; the request applied to another and distinct issue, viz., the want of probable cause for the prosecution. I do not think that the charge covered the request. The case of Fulmer v. Harmon, supra, settled the law, that in an action for a malicious prosecution, the fact that the grand jury had returned “no bill” against the plaintiff, is not, prima facie, sufficient evidence of the want of probable cause for the prosecution which had been brought against him by defen*383dant, so as to save the plaintiff from a non-suit. “In the first place, it is supposed that a mere discontinuance is prima facie enough to establish a want of probable cause. But surely there can be no ground for such a motion when neither a nolle prosequi nor ‘no bill’ by the grand jury in a criminal matter can have such effect.” Ford v. Kelsey & Deas, 4 Rich., 374.
The recent ease of Caldwell v. Bennett, 22 S. C., 5, cites numerous authorities, and states the law upon this subject clearly and fully, as follows: “It must be admitted that the exact boundary line between the province of the judge and that of the jury, in determining the existence or want of probable cause in actions for malicious prosecution, does not seem to be well defined by the authorities in this State. There is no doubt that, upon well settled principles, it is the exclusive province of the jury to pass upon the truth of the facts and circumstances relied upon as establishing the presence or absence of probable cause; and it seems to be well settled that a fact occurring after the matter or transaction which gives rise to a prosecution, or a civil action, such as the finding of ‘no bill’ by the grand jury, the entry of a nolle prosequi by a prosecuting officer, the failure to prosecute, or the discontinuance of a civil action, will, as matter of law, be held insufficient to constitute even prima facie evidence of a want of probable cause.” In this case the finding of “no bill” by the grand jury was a fact which occurred “after the matter or transaction which” gave rise to the “prosecution,” and, “as matter of law,-” it was “insufficient to constitute even prima facie evidence of want of probable cause.” I think that the presiding judge should have charged this request, and that his refusal to charge the same was erroneous.
Defendant’s ninth and last exception is that his honor “erred in refusing to charge the jury as requested by the defendant, ‘Throwing out the bill by the grand jury was entirely in their discretion. They are by no means bound to find the bill, though probable cause exist and is laid before them.’ ” His honor refused this request upon the ground that “the duties of grand jury are irrelevant.” This request is taken literally from the opinion in the case of Fulmer v. Harmon, supra, and occurs in the discussion of the question, whether the return of “no bill” by *384the grand jury is evidence of a want of probable cause for the prosecution, and ns a reason, showing that it is not evidence of that fact, the court say: “Throwing out the bill by the grand jury is entirely at their discretion. They are by no means bound to find the bill, although probable cause exist and is laid before them.” It is no where suggested that it is the duty of the judge to charge the jury upon the duties of the grand jury in regard to bills of indictment. The presiding judge charged the jury that the return of “no bill” and the order of discharge were introduced in evidence to show that the criminal prosecution was ended. I have held that he should have charged defendant’s first request as a matter of law, because, among other reasons, the action of the grand jury occurred long after the prosecution in the criminal case was begun, after plaintiff had been arrested and had given bond for bis appearance. These two propositions cover the case, and beyond these it was unnecessary for the judge to go. We therefore concur with the presiding judge in his refusal to charge this request, upon the ground stated by him, “the duties of the grand jury are irrelevant.”
I think the judgment of this court should be, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.
Judgment affirmed.