after making the foregoing statement, delivered the following opinion of the court:
The questions presented by the assignments of error, *274which in our view are decisive of the case upon the appeal, will be disposed of in their order as stated below.
1. Does it appear from the record that the trial court erred to the prejudice of the defendant in giving instruction 9 at the request of the plaintiff; in modifying instruction F, as asked by the defendant; and in giving instruction F as modified, thereby refusing to give the latter portion of instruction F, as askedfor, which we have italicized in the statement preceding this opinion — when this action of the court is considered in the light of what appears from the record, touching the respective arguments of opposing counsel and the statement of the court before the jury?
The question must be answered in the affirmative.'
The action of the court in question was, of course, not so intended; but it did in fact, allow thé ease to be presented to the jury upon the erroneous theory that the defendant “was bound to know the law,” without any qualification; that the law was that the plaintiff was innocent of the offense charged in the warrant sworn out by the defendant, because, not having agreed in writing to the reservation of title, he could not have been guilty of violating the statute in question, under which the warrant was issued, and the defendant was “bound to know” this; hence, that the case was to be decided by the jury upon the assumption that the defendant, at the time the warrant was sworn out, knew that it did not have probable cause to believe the plaintiff guilty of the offense charged in the warrant, and so was liable in damages; whereas the law, as is well understood and as is uncontroverted before us', is settled to the contrary, namely, to the effect that where a defendant in such a case as this acts in good faith upon the advice of reputable counsel, given under the circumstances set out in instructions No. 1 and E, he is *275not deemed to be bound to know the law, but will be considered to have had “probable cause” for his action, although the advice of counsel may be wrong, and he will not be liable in damages therefor. Thus instruction 9 was, in effect, in conflict with instructions No. 1 and E, given as aforesaid; and certainly was more than probably misleading, in that it diverted the minds of the jury from considering the evidence in the light of instructions No. 1 and E. And this effect of instruction No. 9 was accentuated by the absence of any instruction to the jury, such as would have been contained in the portion of instruction F, as asked, which was refused.
In Womack v. Circle, 32 Gratt. (73 Va.) 324, at p. 333 (an action for malicious prosecution), this is said: “It is not a question of the guilt or innocence of the plaintiff. It is whether the proceedings were malicious and without probable cause.”
In Singer Mfg. Co. v. Bryant, 105 Va. 403, 54 S. E. 320 (also a malicious prosecution case), the defendant asked for an instruction stating that “the question of guilt or innocence of (the plaintiff) of the charges set forth in the warrant is not in issue in this case.” The trial court refused this instruction and gave one in a modified form, in which the jury were told that the guilt or innocence of the plaintiff might be considered on the question of probable cause. On the appeal this action was held to have been erroneous and the judgment of the trial court was reversed.
In Southern Railway Co. v. Mosby, 112 Va. 169, at p. 177, 70 S. E. 517, 519 (likewise a malicious prosecution case), this is said and held: “The court further told the jury, and rightly, that the question of guilt or innocence of the defendant in error was not an issue before them *
*276 It is urged in behalf of the plaintiff that since the jury were warranted by the evidence in finding that the defendant used the prosecution in order to coerce the payment of a debt, that, in itself, shows that the prosecution was without probable cause — citing 14 Am. & Eng. Ency. of Law (1st ed.), p. 48, and cases cited in a footnote thereto. This authority does not sustain this position. An examination of it discloses that it deals with the subject of when malice may be implied in eases of actions for malicious prosecution, and goes to the extent of stating merely that “where criminal prosecutions are instituted not to vindicate the law and punish crime, but to coerce the payment of a debt or restitution of property, in such case the law conclusively presumes malice.” And this authority adds this: “* * The jury * * are never warranted in finding want of probable cause from the existence of even express malice.”
And such is the uniform holding in this State and elsewhere.
In Scott v. Shelor, 28 Gratt. (69 Va.) 891, this is held: “Both malice and the want of probable cause must concur and be proved. Malice may be inferred from the want of probable cause, but the latter can never be inferred from the plainest malice.”
Indeed the authorities are all in accord in holding that if probable cause exists at the time of the alleged prosecution and false arrest, the prosecutor cannot held liable therefor in damages, although his sole actual motive may have been that of coercing the payment of a debt, or other improper motive; for evidence of improper motive is material only as showing malice. Spengler v. Davy, 15 Gratt. (56 Va.), 381.
As said in Wheeler v. Nesbitt, 24 How. (U. S.) 544, *27716 L. Ed. at p. 769: “Even proof of express malice was not enough without showing also the want of probable cause. * * It is true * * that want of probable cause is evidence of malice, * * but the converse of that proposition cannot be sustained; nothing will meet the exigencies of the case, so far as respects the allegation that probable cause is wanting, except proof of that fact.” And on page 550 of 24 How., on page 768 of the same opinion, as reported in 16 L. Ed., this is said: “Malice alone is not sufficient to sustain the action, because a person actuated by the plainest malice may nevertheless prefer a well founded accusation and have a justifiable reason for prosecuting the charge.”
In Bartlett v. Brown, 6 R. I. 37, 75 Am. Dec. 675, at p. 677, the case is said in the opinion to have been one which appeared to the defendant as “of apparent guilt of theft, believed by him to be real, and such will not support an action for malicious prosecution even though the most express malice be proved of the prosecutor.”
Moreover, instruction 5, given in the instant case, so stated the law, and, hence, was in irreconcilable conflict with the action of the court in question.
2. Did the court .err in giving instruction D, which, in the concluding portion of it, stated, in substance, that the defendants did not have “probable cause” to institute and maintain the prosecution unless its sole motive in doing so was the reasonable belief that it was their (its) duty to institute and maintain the criminal prosecution complained of.
The question must be answered in the affirmative.
This instruction in substance states the law to be that only those who prosecute a charge of crime as a public duty, can excuse themselves from liability in damages to the person prosecuted; that if that be not *278the character of the motive of the prosecution that if he be actuated by any impure motive, such as actual malice; he is liable in damages, even though “probable cause” for the prosecution, as such cause is legally defined, undoubtedly existed. As we have seen above, such position is untenable under the authorities.
It results from the above conclusions that the case will have to be reversed.
As this, however, is not a case in which we feel that we can enter a final judgment under the statute (Code section 6365), a new trial will have to be awarded. Since that is so, it will be necessary for us to pass upon the action of the court in giving and refusing other instructions besides those which we have passed upon above. The assignments of error with respect to such other instructions, however, present no novel question. Hence, in passing upon such other instructions, we deem it sufficient to say merely this:
We are of opinion that the court committed no error in giving instructions 1, 2, 3, 4, 5, 6, 7 and 8, at the request of the plaintiff, and no reversible error in refusing instruction 6, asked by the defendant, and in giving that part of instruction D in lieu thereof which is not italicized in the copy of it set out in the statement preceding this opinion.
If it had been properly phrased, the defendant would have been entitled to have had the latter part of instruction C given as an instruction, since it had reference to the- point of time at which it was alone material to inquire what were the facts known to the defendant which tended to excite the belief in a reasonable mind that the plaintiff was guilty of the crime for which he was prosecuted. The instruction, as asked, however, limited the inquiry mentioned to the single point of time at which the warrant was issued; whereas *279the declaration and the evidence embraced the arrest and prosecution at a later time, and hence was properly refused.
Reversed and new trial awarded.