Opinion by
Rice, P. J.,
If there is anything well settled in the law, it is, that malice and want of probable cause must be proved in order to entitle *472a plaintiff to recover damages for a malicious prosecution. “These are essential and must co-exist:” Auer v. Mauser, 6 Pa. Super. 618" court="Pa. Super. Ct." date_filed="1898-02-19" href="https://app.midpage.ai/document/auer-v-mauser-6272113?utm_source=webapp" opinion_id="6272113">6 Pa. Superior Ct. 618. The lawful discharge of the defendant in the prosecution, by the examining magistrate, is prima facie evidence of want of probable cause, and the burden of proof that there was probable cause, as a general rule, is then cast on the defendant in the action: Auer v. Mauser, supra; Bernar v. Dunlap, 94 Pa. 329" court="Pa." date_filed="1880-05-17" href="https://app.midpage.ai/document/bernar-v-dunlap-6236575?utm_source=webapp" opinion_id="6236575">94 Pa. 329; Barhight v. Tammany, 158 Pa. 545" court="Pa." date_filed="1893-12-30" href="https://app.midpage.ai/document/barhight-v-tammany-6241905?utm_source=webapp" opinion_id="6241905">158 Pa. 545. He failed to show this to the satisfaction of the jury, and therefore this essential may be considered as established by the verdict. As the terms “probable cause” are defined in Smith v. Ege, 52 Pa. 419" court="Pa." date_filed="1866-05-24" href="https://app.midpage.ai/document/smith-v-ege-6232731?utm_source=webapp" opinion_id="6232731">52 Pa. 419, and the cases there cited, it is difficult to see how any other conclusion could be drawn from the facts given in evidence by the defendant.
In this connection we might as well dispose of the third assignment of error.
It is true the question whether or not there was probable cause does not depend on the actual state of the case in point of fact. The test is the prosecutor’s belief of its existence at the time. But this must be based upon reasonable grounds, and we agree with the court below that the mere fact that other articles, missed by the defendant at different times, were found in the possession of various enployees of the plaintiff’s company would have no legitimate tendency to induce a reasonable belief in the mind of any prudent man — knowing what the defendant did of the plaintiff’s rights and possession under his contract — that the latter was guilty of stealing this derrick, when he caused it to be removed in broad daylight and set up on an adjacent property. The court committed no error in rejecting this offer.
Was the prosecution malicious? Something more than mere legal or theoretical malice is requisite to sustain an action of this kind, for it must be proved as a fact, and, while it may be inferred from a want of probable cause, its existence, nevertheless, is for the jury: Schofield v. Ferrers, 47 Pa. 194" court="Pa." date_filed="1864-02-01" href="https://app.midpage.ai/document/schofield-v-ferrers-6232232?utm_source=webapp" opinion_id="6232232">47 Pa. 194; Bernar v. Dunlap, supra; McCarthy v. DeArmit, 99 Pa. 63" court="Pa." date_filed="1881-11-21" href="https://app.midpage.ai/document/mccarthy-v-de-armit-6236987?utm_source=webapp" opinion_id="6236987">99 Pa. 63; Emerson v. Cochran, 111 Pa. 619" court="Pa." date_filed="1886-02-15" href="https://app.midpage.ai/document/emerson-v-cochran-6238278?utm_source=webapp" opinion_id="6238278">111 Pa. 619; Cooper v. Hart, 147 Pa. 594" court="Pa." date_filed="1892-03-21" href="https://app.midpage.ai/document/cooper-v-william-r-hart--co-6240625?utm_source=webapp" opinion_id="6240625">147 Pa. 594. “ While the former” — want of probable cause — “is evidence of malice proper to be submitted to the jury, it does not establish legal malice to be declared by the court:” McClafferty v. Philp, 151 *473Pa. 86. This statement of the rule was reiterated in Ritter v. Ewing, 174 Pa. 341" court="Pa." date_filed="1896-03-16" href="https://app.midpage.ai/document/ritter-v-ewing-6243575?utm_source=webapp" opinion_id="6243575">174 Pa. 341. Hence it is erroneous to instruct the jury that where the defendant in the prosecution was discharged by the magistrate the plaintiff is entitled to' recover unless the defendant in the action prove to their satisfaction that there was probable cause for the arrest. This assumes, that if this be lacking, malice must necessarily be implied — a proposition not sustained by the authorities. It has been said that “the absence of probable cause being shown, malice will ordinarily be inferred unless there be extenuating circumstances, as that the prosecutor submitted the facts fully to counsel learned in the law and acted under his advice:” Mahaffey v. Byers, 151 Pa. 92" court="Pa." date_filed="1892-10-03" href="https://app.midpage.ai/document/mahaffey-v-byers-6241013?utm_source=webapp" opinion_id="6241013">151 Pa. 92. Let this be granted, nevertheless, it is an inference of fact to be drawn by the jury, and not a presumption of law, and there is nothing in the case last cited to indicate that the court intended to lay down a different rule.
Moreover, the defendant in the action gave evidence of precisely such extenuating circumstances as are referred to hi that ease. If hi good faith the prosecutor seeks, obtains and honestly follows tiie advice of competent counsel on a full and fair statement of all the facts within his knowledge, or which he has reason to believe he is able to prove, and omits none which, with reasonable diligence, he could ascertain or discover, the advice so received will constitute a defense to the action: Beihoffer v. Loeffert, 159 Pa. 374" court="Pa." date_filed="1893-12-30" href="https://app.midpage.ai/document/beihofer-v-loeffert-6241973?utm_source=webapp" opinion_id="6241973">159 Pa. 374; Barhight v. Tammany, supra; McClafferty v. Philp, supra. Such advice is sometimes called probable cause, but in strictness it rebuts the inference of malice arising from want of probable cause: McCarthy v. DeArmit, supra.
It is claimed that the defendant could not set up the advice of counsel as a defense, because (1) he did not inform him that Fry had told him that if his men had taken the rig he would pay for it; and (2) did not show him the written contract under which the plaintiff’s company held possession of the property from which the rig was removed. This contract was in the form of a receipt for $2,800, in payment for two gas wells, and contained this clause: “The condition of this sale is, that when the gas is exhausted the wells are to be returned to me free from rentals due as they are delivered.” The counsel who advised the prosecution and drew the information tes*474tilled that while the written contract was not shown him he was informed by the defendant that he had sold the gas in a certain lease, and that the rig had been taken away. It is apparent from his testimony taken as a whole that he was informed of all the facts material to the question upon which his advice was asked which the paper itself would have disclosed. As to the other objection, it is sufficient to say, that he had knowledge of the substance of the conversation referred to from the plaintiffs own letters before the prosecution was begun. Without going further into detail, there was evidence, which, if believed by the jury, was sufficient to rebut any inference of malice, which, without it, might arise from the absence of probable cause. The learned judge correctly affirmed the defendant’s point which was drawn substantially in the language of the decision in Beihoffer v. Loeffert, supra. But in affirming the plaintiff’s third point he also told the jury that the defendant “must show such conduct on the part of the accused as would warrant an ordinarily prudent man in believing that H. C. Fry .... was guilty of the offense with which he was charged; .... ‘and failing in this the verdict should be for the plaintiff.” The defendant may have failed to show such conduct on the part of the plaintiff and he may also have acted under the advice of counsel. In such a case, which instruction was the jury to follow; find a verdict for the plaintiff or for the defendant? Perhaps the jury understood that the affirmance of this point was subject to the qualification implied in the affirmance of the defendant’s point, and doubtless the learned judge intended them so to understand, but through inadvertance he omitted to say so. Again, in affirming this, as well as the second point, they were told, in effect, that if there was not prohable cause they should find for the plaintiff. “ This,” to adopt the language of Mr. Justice Strong, “ was leaving out of view the second essential to the maintenance of such an action, namely, whether the prosecution was instituted maliciously, a question always for the jury, and one which must be proved affirmatively to entitle the plaintiff to a verdict. It is true that want of probable cause is evidence of malice, but it is not malice itself. It is to be submitted to the jury for them to draw the proper inference:” Schofield v. Ferrers, supra. So that, even if the evidence as to the advice of coun*475sel were out of the case, or we were to assume that the defense founded thereon was not made out to the satisfaction of the jury, still, the question of the defendant’s malice ought to have been submitted to the jury, and'the points should have been negatived or at least qualified. For these reasons the first and second assignments of error are sustained.
The judgment is reversed, and a venire facias de novo awarded.