The action is to recover damages for a malicious prosecution, and the burden is on the plaintiff to prove:
(1) The institution and termination of a criminal charge against him.
(2) That the prosecution was without probable cause.
(3) That it was with malice.
(4) That the defendants participated in the prosecution.
If, however, he has furnished evidence of these facts, giving to the evidence the most favorable construction for the plaintiff, as we are required to do on appeals from judgments of nonsuit, there is error.
It is not denied that a criminal prosecution was instituted against the plaintiff, and that it terminated by a verdict of not guilty before this action was commenced; but the defendants contend that probable cause is shown by the evidence of the plaintiff, and that there is no evidence of malice, or that the defendants took part in the prosecution.
“What is probable cause is a question of law, to be decided by the court upon the facts as they may be found by the jury.” Beale v. Robinson, 29 N. C., 280; Vickers v. Logan, 44 N. C., 393. As a guide to the court, it is defined to be “the existence of circumstances and facts sufficiently strong to excite in a reasonable mind suspicion that the person charged with having been guilty was guilty. It is a case of apparent guilt as contradistinguished from real guilt. It is not essential that there should be positive evidence at the time the action is commenced, but the guilt to be so apparent at the time as would be sufficient ground to induce a rational and prudent man, who duly regards the rights of others as well-as his own, to institute a prosecution; not that he knows the facts necessary to insure a conviction, but that there are known to him sufficient grounds to suspect that the person he charges was guilty of the offense.” Smith v. Deaver, 49 N. C., 515, approved in Wilkinson v. Wilkinson, 159 N. C., 265.
The fact that the committing magistrate required the plaintiff to enter into bond for his appearance at court, and that a grand jury returned a true bill against him, establish probable cause prima facie, *133but not conclusively, and it was still open to the plaintiff to prove there was no probable cause. Stanford v. Grocery Co., 143 N. C., 426.
Let us apply these principles to the evidence.
The charge in the warrant is that the plaintiff did “move and make way with hay after being attached,” and it appears that the hay was not attached, but that it was seized in proceedings in claim and delivery.
The defendant Flanagan who served the papers in the claim and delivery proceedings and who made the affidavit for the warrant, does not testify that after the seizure of the hay he left it in charge of the plaintiff as his agent, if this could be done legally, nor does it appear that he made any effort to remove it.
He left it where it was on the land of the plaintiff’s wife, and made return: “The defendant (the plaintiff in this action) having executed a good and sufficient undertaking, as required by law, the said property ' was delivered back to the defendant.”
The plaintiff testified that the hay remained in the field more than a month after the papers in claim and delivery were served, when it was removed to a shelter by his wife and children in his absence, to protect it from stock, and that although about 300 pounds of the hay was used in feeding horses, on which the defendants Pollard & Joyner held a mortgage, and which were afterwards delivered to them, he had nothing ■to do with it, and so told Flanagan before the warrant was issued.
He also offered evidence tending to prove that the supplies furnished by Pollard & Go. amounted to about $600, and he produced receipts showing payments of $590, and, in addition, that he had delivered 15 bushels of cotton seed, and that the stock turned over to Pollard & Co. was not advertised and sold, and was credited at less than its value.
The wife of the plaintiff also testified “that instead of them owing Pollard (meaning Pollard & Go.), that Pollard was owing them.”
If this evidence is true, and the jury alone had the right to pass on • its credibility, the warrant was issued on the affidavit of the defendant Flanagan for unlawfully removing the hay, when there was nothing due Pollard & Co., which Pollard & Go. knew or ought to have known, and when the hay had been left with the plaintiff after he had given his bond for the return of the property, and when the plaintiff had told Flanagan he had nothing to do with the use or removal of the hay; and this is evidence of a want of probable cause, and malice may be inferred from a want of probable cause. Humphries v. Edwards, 164 N. C., 156.
The distinction between malice which is necessary to sustain the action and proof of malice which will justify awarding punitive damages is clearly stated and discussed by Justice Hoke in Stanford v. Grocery Co., 143 N. C., 422.
*134There is, however, some evidence of actual malice in the evidence of the plaintiff, in addition to the malice which may be inferred from the want of probable cause, and which alone is sufficient to sustain this element in the cause of action, which we will not discuss, as the action is to be tried again.
Ve have, then, evidence of malice and of a want of probable cause, and the remaining question is whether there is any evidence that the defendants or either of them participated in the prosecution.
Flanagan made the affidavit upon which the warrant issued, and the plaintiff testified that after his arrest he was carried to the store of Pollard & Co. and that the defendant Pollard told him before the trial that if he would pay him $10 he would let him go back, and again after the trial that he would release him if he would pay him $10 for the hay; and when asked to stand his bond for his appearance at court, Pollard said: “You know I would not stand your bond after prosecuting you for the hay”; and this evidence that these two defendants took part in the prosecution.
We find no evidence against the defendant Joyner.
He was absent from home when the prosecution was begun, and knew nothing about it, so far as the evidence discloses, until after its termination, and the mere fact that he was a partner of Pollard, without evidence, direct or circumstantial, of at least his knowledge, approval, or consent, would not be sufficient to connect him with the prosecution. Gilbert v. Emmons, 89 A. D., 412; Rosankrans v. Barker, 56 N. R., 169; Noblett v. Bartsch, 96 A. S. R., 886.
The judgment of nonsuit must, therefore, be set aside as to the defendants Flanagan and Pollard and sustained as to Joyner.
Reversed as to Pollard and Flanagan.
Affirmed as to Joyner.