This appeal arises out of an action for malicious prosecution. The plaintiff recovered judgment against defendant for both actual and punitive damages in The Civil Court *320of Florence, in May, 1964. Timely motions for nonsuit, directed verdict, judgment n. o. v. or in the alternative for a new trial were made by defendant and denied. This appeal followed.
The complaint alleges that defendant acting through its duly authorized agent caused plaintiff to be arrested under a warrant charging him with disposing of a pickup truck while under an alleged lien. As a result thereof he was later indicted; and upon trial, after the jury was empaneled and sworn and the State submitted its evidence, the Solicitor ordered a nol pros.
Plaintiff purchased a 1954 Ford pickup truck from the Floyd Motor Company of Lake City, S. C., on September 11, 1959, giving a chattel mortgage thereon to Floyd’s in the amount of $349.00, payable in monthly installments of $30.00 each, the last such payment being made by plaintiff on October 15, 1960. The mortgage provided that “It is agreed that the title to, ownership in and right of possession of said chattel are vested in you and your assigns until said indebtedness and all other sums of money payable to you, whether evidenced by note, bank account, or otherwise, * * •* shall have been fully paid in money at which time ownership shall pass to me.”
. On December 2, 1961, plaintiff traded the 1954 truck to the defendant, Plowden Motor Company of Lake City, S. C., for a 1957 Ford pickup truck. Plaintiff did not give defendant the title to the 1954 truck, stating that it was lost but that the truck was “paid for in full.” The 1954 truck stayed on the premises of Plowden Motor Company until September, 1962, at which time it was discovered that title had not been acquired. When a duplicate title was received from the Highway Department the mortgage to Floyd Motor Company had not been satisfied on the records of the Highway Department. The title was sent to Floyd Motor Company but returned as there was a claimed balance, owed thereon by plaintiff. Plaintiff upon being *321contacted denied owing Floyd’s anything. After further meetings and conversations with plaintiff in which defendant was assured the matter would be cleared up, an employee of defendant contacted the Honorable Russell Floyd, Magistrate at Lake City, who is also an attorney. Floyd after several conversations with plaintiff, advised defendant’s employee that he was entitled to a warrant.
To maintain an action for malicious prosecution, plaintiff must show (1) the institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) termination of such proceeding in plaintiff’s favor; (4) malice in instituting such proceedings; (5) want of probable cause, and (6) resulting injury or damage. 34 Am. Jur., Malicious Prosecution, Sec. 6, p. 706; Prosser v. Parsons, S. C., 141 S. E. (2d) 342; Gibson v. Brown, et al., S. C, 141 S. E. (2d) 653.
Defendant contends the only inference to be drawn from the evidence was that plaintiff sold an automobile upon which there existed a lien and that plaintiff failed to establish malice in instituting the proceedings or want of probable cause.
Floyd Motor Company claimed plaintiff owed it the amount of $92.96 for repairs to the 1954 truck and the amount of $84.00 claimed to be transferred from the account on a 1956 Ford Station Wagon purchased by plaintiff on which Floyd’s had satisfied the mortgage. It is contended that these items are included, under the quoted section of the chattel mortgage, in the total amount of the lien on the 1954 pickup truck. At the trial plaintiff introduced evidence to the effect that he had made twelve payments of $30.00 to Floyd Motor Company or a total of $360.00 when the note and chattel mortgage only called for payments totaling $349.00.
The question before this Court is not whether plaintiff was guilty of disposing of property under lien but whether defendant had probable cause to believe him guilty.
*322Under Section 45-157, Code of Laws of South Carolina, 1962, it is a misdemeanor to sell or dispose of personal property on which any mortgage or lien exists without the written consent of the mortgagee or lienee. However, this section does not apply when the sale is made without knowledge or notice of such mortgage or lien by the person so selling such property.
“* * * it is generally held that the prosecutor is free from damage if there be probable cause for the accusation made, the burden being upon the plaintiff to show the absence of probable cause as a part of the cause of action, Fulmer v. Harmon, 3 Strob. 576; Hogg v. Pinckney, 16 S. C. 387, see also, 6 South Carolina Law Quarterly 375-376.
“By probable cause is meant the extent of such facts and circumstances as would excite the belief in a reasonable mind acting on the facts within the knowledge of the prosecutor that the person charged was guilty of a crime for which he has been charged, and only those facts and circumstances which were or should have been known to the prosecutor at the time he instituted the prosecution should be considered. Brown v. Bailey, 215 S. C. 175, 54 S. E. (2d) 769; China v. Seaboard Air Line Ry., 107 S. C. 179, 92 S. E. 335.” Elletson v. Dixie Home Stores, 231 S. C. 565, 99 S. E. (2d) 384.
In an action for malicious prosecution, the defendant must be absolved from liability if plaintiff fails to show that the prosecution was instituted maliciously and without probable cause. Margolis v. Telech, 239 S. C. 232, 122 S. E. (2d) 417.
Although malice may be inferred from a want of probable cause, a want of probable cause cannot be inferred from any degree of malice. Stoddard v. Roland, 31 S. C. 342, 9 S. E. 1027; Brown v. Bailey, 215 S. C. 175, 54 S. E. (2d) 769.
*323While the question of want of probable cause is essentially a question of fact and is ordinarily for the determination of the jury, we are of opinion that the evidence will support no finding other than that defendant had probable cause in instituting the prosecution against plaintiff for disposing of personal property under lien. Although prior to the warrant being obtained, plaintiff stated he did not owe Floyd Motor Company anything further on the 1954 pickup, defendant was only aware of the fact that the duplicate title obtained from the Highway Department indicated the lien was unsatisfied and that Floyd Motor Company claimed a balance due thereon. Plaintiff was contacted more than once but at no time did he endeavor to explain his position in the controversy or offer to defendant or the magistrate any information indicating the amount claimed was not owed.
For the foregoing reasons we are of opinion that plaintiff’s action must fail, the verdict and judgment appealed from should be reversed; and it is so ordered.
Reversed.
Moss, J., and Legge, Acting J., concur. Lewis and Bussey, JJ., dissent.