The opinion of the Court was delivered by
Mr. Chiee Justice McIver.This was an action to recover damages for an alleged malicious prosecution. The case came on for trial before his Honor, Judge Benet, and a jury, and a verdict having been rendered in favor of the defendants, the plaintiff appeals upon the several exceptions set out in the record. Inasmuch as these exceptions only impute error to the Circuit Judge in using the language extracted from the charge in the several exceptions, it will be necessary for the reporter to incorporate in his report of this case so much of the charge as is embraced within the folios 54 and 94 of the case, concluding with the words, “counsel for plaintiff withdraw their request to charge” (the remainder of the charge not being necessary for a proper understanding of the questions, which we understand to be presented by the exceptions of appellant), as well as the exceptions taken by appellant.
We must say the form of each of these exceptions is not free from objection, as they all impute error to the Circuit Judge in the use of the language extracted from the charge and embodied in the exceptions, without indicating wherein the error complained of lies; and as the most, if not all, of these extracts contain several propositions, the Court is left to conjecture whether the intention is to impute error in all of these propositions, or only one of them, and, if so, which one. But waiving this, we will proceed to consider the questions which we understand the several exceptions, read in the light of appellant’s argument, are intended to present.
*2251 *224The error which seems to be imputed to the Circuit Judge, in using the language quoted in the first exception, is, that such language would induce the jury to’believe that the question of whether there was probable cause for the prosecution, depended alone upon whether the defendant *225believed that there was such probable cause, no matter how trivial and flimsy were the circumstances upon which such belief rested. It seems to us that this is an entire misconception of the effect of the language quoted from the charge, as is shown by the concluding words of the quotation, “and upon the grounds of that belief.” The obvious meaning of the language of the Judge was that the question whether there was probable cause for the prosecution does not depend upon the guilt or innocence of the party charged, “but upon the belief of the prosecutor and upon the grounds of that belief.” That was the same as saying to the jury that the question whether there was probable cause, does not depend alone upon the belief of the prosecutor, but upon such belief, if founded upon sufficient grounds, which, in the same connection and on the same page, the Judge told the jury meant such grounds as would influence the mind of a man of ordinary intelligence and discretion to believe that the offense charged had been committed by the person accused. For in the same connection and on the same page of the charge as printed in the “Case,” the jury were told, “if, therefore, there be an honest belief in guilt, and if there be reasonable grounds for such belief, the prosecutor will be justified, and not liable in damages. But mere belief in guilt, standing alone, is no justification; there must be reasonable or probable grounds for the belief.” It is clear, therefore, that the first exception cannot be sustained.
2 The error which seems to be imputed by the second exception is that the Circuit Judge erred in his instruction to the jury as to the effect of the fact that defendants acted upon the advice of counsel in instituting criminal prosecution. The appellant contends that the jury were instructed that 'if the prosecution was commenced under the advice of counsel, that would be a complete defense, unless malice is expressly proved. This position, it seems to us, is based upon a manifest misconception of the language of the Circuit Judge. The language as quoted in this excep*226tion is not exactly accurate, owing, doubtless, to a mistake of the printer, and is somewhat confusing. The language of the Circuit Judge, as it appears in the printed charge is, “I charge you that a defendant may endeavor to rebut the presumption of malice by proof that he acted under the advice of counsel. He is allowed to show that he communicated to his counsel, his lawyer, all the facts, or what seemed to him to be the facts, bearing upon the guilt or innocence of the accused, which were known to him, or which he might reasonably have information of, and to show, also, that acting upon his lawyer’s advice, he brought the prosecution, and that he acted solely on the advice of his counsel, and from no improper motives. That would be a complete defense, and would justify the finding for the defendant in a proper case. You are to say whether this is such a case or not. The testimonjr is before you, and jmu are to say what weight it deserves. The whole advice of counsel is evidence intended to rebut the presumption or imputation of malice; but where malice is expressly proved, the advice of one’s lawyer will not free a defendant from liability — that is, where malice is expressly proved.” And again, where Judge Benet’s attention was specially called to the matter of the advice of counsel, he said that the defendant is allowed to show “that acting on the advice of counsel, he brought the prosecution, and that he acted solely upon the advice of counsel, and from no improper or evil motives. That is not sufficient. It must be also shown that he acted on no improper motives. The advice of counsel is to go to the jury with all other evidence.” It is very manifest from the language which we have italicized in the two preceding quotations from the charge of the Circuit Judge, that he did not charge the jury as the appellant contends that he did, and we think it also clear that in the use of the word “expressly,” upon which stress is laid, the Circuit Judge merely meant to use it in contradistinction to the inference of malice from the want of probable cause; and what he obviously meant was that while proof that the prosecution was commenced under the advice *227of counsel, might be sufficient to rebut the inference of malice drawn from the wants of probable cause, it would not avail anything against express proof of malice. In this' there was no error, for while the well settled rule is that malice may — not must — be inferred from want of probable cau'se, yet such inference may be rebutted by other circumstates — Bell v. Graham, 1 N. &McC., 278; see, also, 14 Am. & Eng. Enc. of Law, 53, et seq., especially the notes. The reason of the rule that malice may be inferred from want of probable cause is that where a person institutes a prosecution against another without probable cause, it is difficult to conceive of any other motive but a malicious one for bringing the prosecution (Caldwell v. Bennett, 22 S. C., at p. 9), but if it is shown that the prosecutor has before commencing the prosecution taken the advice of counsel learned in the law, that may be regarded by the jury as sufficient to rebut the inference of malice, and that circumstance, along with the other evidence, is to be considered by the jury in reaching their conclusion as to whether the prosecution was maliciously instituted. The second exception is overruled.
The third exception was not pressed in the appellant’s argument; but as it was not formally abandoned, we will consider it. Manifestly it cannot be sustained, for the language upon which that exception is based was used by the Circuit Judge merely as an illustration of what might be evidence of probable cause. But as it was not pretended that any bill of indictment had ever been submitted to a grand jury, it has no practicable application to the case.
3 The error imputed to the Circuit Judge in the fourth exception seems to bé that in the language there quoted, the jury were instructed that in order to maintain an action for malicious prosecution it was necessary for the plaintiff to prove three things: 1st. That the prosecution was prompted by malicious motives. 2d. That there was no probable cause for the prosecution. 3d. That the prosecution had ended. The elementary books as well as all the cases teach that these three facts are essential to the *228maintenance of an action for malicious prosecution; but, as we gather from the argument, the ppint of the appellant’s contention is that this language was calculated to induce the jury to believe that even if a want of probable cause was shown to their satisfaction, they could not find for the plaintiff unless malice was also shown affirmatively as a matter of fact. This contention is based upon what we have already seen is an unfounded assumption, viz: that the existence of malice will necessarily be inferred from a want of probable cause; for, as was said by Mr. Justice Johnson in delivering the opinion of the Court in Bell ads. Graham, I N. & McC., at page 283, “Both malice and want of probable cause must appear; and although the former will generally be implied from the latter, yet it does not necessarily follow, and the presumption arising from it may be rebutted by the other circumstances.” The fourth exception must also be overruled.
The judgment of this Court is, that the judgment of the Circuit Court be affirmed.