(for the Judges concurring):
In the petition for rehearing the learned counsel contend that the court was inaccurate in the statement that “the plaintiff introduced the search warrant, proved the search and failure to find any of the defendant’s goods on the premises. The finding of no goods when the search was made, prima facie established that there was no probable cause.” It is insisted that in the case of Saunders v. Baldwin, 112 Va. 431, 71 S. E. 620, 34 L. R. A. (N. S.) 958, Ann. Cas. 1913B., 1044, and Singer Mfg. Co. v. Bryant, 105 Va. 403, it has been decided that the acquittal of the accused is not proof of want of probable cause. This is no doubt as a general rule sound law, but it was not the exact question discussed in Saunders v. Baldwin, supra. The question there determined is stated by the court in 71 S. E. 623, 112 Va., on page 441, as follows:
“Upon principle, as well as upon authority, it seems to us that if there be a conviction by a justice or other trial court having jurisdiction of the case, which is reversed upon appeal or writ of error and the accused *591acquitted, such judgment of conviction in an action for malicious prosecution should be held to be conclusive evidence of probable cause, unless it be shown that it was procured by the defendant through fraud or by means of testimony which he knew to be false.”
From this statement of the law it may very well be argued that the converse is true, so that an acquittal by a justice may be taken as proof of lack of probable cause; though it seems that the rule is otherwise in Virginia. However, the instant case does not involve the effect of either an acquittal or conviction, for there was no trial of a charge against the plaintiff at any time. The evidence was never produced until upon the trial of the instant civil action. On the trial of this case about thirty-five witnesses were examined, most of them testifying for the plaintiff, and every circumstance and detail relative to the transaction was brought out by elaborate examination and cross examination. What is said by the court in reference to prima facie proof of probable cause must be taken with reference to the facts in the present record. The charge made by the defendant against the plaintiff was not merely one of concealing stolen goods, but the defendant made oath, upon which the warrant was issued, that the plaintiff was himself the thief, and so there was initiated a prosecution for theft against the plaintiff at the instance of’ the defendant. Upon a failure to find the goods, with the theft of which Cox 'was charged, in the house of Cox, further prosecution under the warrant was abandoned. As the case was fully displayed before the jury,, the technical question as to whether a discharge by an examining magistrate is of and by itself prima facie proof of want of probable cause, so that the plaintiff can rely upon it, without further proof, as sufficient to cast the burden of proving probable cause upon the *592defendant, is not involved in this ease; nor is any such suggestion found in the instructions given to the jury. This question and other corelated matters are the subject of an extensive annotation in 24 A. L. R. 261. If the effect, upon the necessity of showing lack of probable cause, of a discharge by an examining magistrate or an equivalent abandonment of the charge by the prosecution, is an open question in Virginia, it is not necessary for us to pass on it and we do not intend to do so, especially as we are merely acting upon an application for a rehearing.
It is further argued in the petition for rehearing that the advice of counsel learned in the law, under which a person acts in starting a prosecution, is a complete defense when the other requisite circumstances are present, and that in principle this rule of law is referable to the question of probable cause and is conclusive proof cf probable, cause on the part of defendant. Merely seeking advice of others not learned in the law may fairly be used by counsel in argument as bearing upon the question of probable cause, as the latter is frequently alluded to doctrinally as a “state of mind.” It is said by Judge Burks, in his work on Pleading and Practice (2nd ed.), 200-201, that whether the advice of counsel is received simply to repel malice or also to show probable cause is a subject of conflict of authority. And he adds that the true ground would seem to be that it is admissible for the purpose of showing probable cause. But this is rather an academic question. The principle of law is of course settled that advice of counsel defeats plaintiff’s case altogether; in the practical application of the law that is a sufficient and complete statement, and it only remains to ascertain what is in fact advice of counsel. The doctrinal basis upon which jurists justify the established rule of law is in*593teresting but needs no discussion, and there is nothing in the opinion of the court which necessitates its consideration.
We must adhere to our opinion that the instruction offered by the defendant as No. 6 was properly refused by the trial court. It seems to us to be unnecessarily long and to contain matters not properly related. If it was desired to ask an instruction detailing the facts which, if believed by the jury, would establish the defense resting upon advice of counsel, such an instruction might have been offered for the court’s consideration. The instructions given by the court were very full and clear, and covered every phase of the case. The evidence was quite extensive and in conflict on many points. The whole case was fairly submitted to the jury on conflicting evidence, and we are not justified in interfering with their conclusion. A rehearing is denied.
Rehearing denied.