GeeeN, Judge :
The motion to exclude from the jury all the plaintiff’s evidence, which was made in this case by defendant and sustained by the circuit court, ought not to have been sustained, unless upon a demurrer to the plaintiff’s evidence the court [239]*239ought to have sustained the demurrer, this motion to exclude the evidence being simply a substitute in our practice for a demurrer to the evidence. James & Mitchell v. Adams, 8 W. Va. 568, syllabus 5. The rules as to the weight to be given to the evidence in such cases are well settled in our State and have often been announced by this Court. The most recent announcement of them is to be found in Allen v. Bartlett, 20 W. Va. 46, syllabus 1. This rule, when applied to a motion by a defendant to exclude from the jury all the plaintiff’s evidence, would be, that such -motion should not be sustained and all the plaintiffs evidence excluded from the jury, unless the plaintiffs evidence was insufficient to sustain his case after allowing full credit to all of his evidence and not only admitting all facts directly proved by it but also admitting all facts and conclusions, that a jury might fairly infer from the facts proven.
In this case it was necessary for the plaintiff' in order to sustain his case to prove: 1st, that the prosecution alleged in the declaration had been set on foot and conducted to its termination in the final discharge of the plaintiff in the manner alleged in the declaration; 2d, that it was instigated and procured by the defendant; 3d, that it was without probable cause; and 4th, that it was malicious. See Vinal v. Core & Compton, 18 W. Va. syl. 2 p. 1 and pp. 23, 24 and 25, and Scott & Boyd v. Shelor, 28 Gratt. 899. According to the principles laid down in the first of these cases it is clear, that the evidence of tire plaintiff in this case, when we allow, as we must as the case is presented to us, full credit to all of it and treating as true every fact directly testified to by any of the plaintiff’s witnesses, as also every fact and conclusion that the jury might fairly have inferred from the facts proven, fully establishes the first, second and fourth of the above requisites. This is not disputed by the counsel for the de-. fendant in error in this Cóui’t. But in his argument he insists that the third of these requisites is not established by the evidence, that is, that the plaintiff’s evidence fails to establish, that his prosecution and arrest at the instance of the defendant was without probable cause.
Was the committing of the defendant to jail to be there detained to answer an indictment by the justice after the [240]*240examination of the charge against him conclusive evidence, that there was probabU cause for his prosecution ? If the plaintiff has been found guilty by a jury, he cannot of course sustain an action for malicious prosecution, because it is obvious, that the verdict of a jury conclusively establishes, that the defendant had 'probable cause for instituting the prosecution; and the* defendant will not be heard to say or offer proof, that the prosecution was without probable cause. On the other hand if the jury has acquitted the plaintiff* and he has been discharged, he may institute this action, but he cannot sustain it, if the defendant proves, that he had probable cause for instigating the prosecution; for the verdict of the jury of not guilty is of course not conclusive evidence of a want of probable cause; for the jury may well have found the plaintiff not guilty, though they were satisfied from the evidence, that there was a strong probability of his guilt; for they could not find othewise, unless his guilt was proved beyond all reasonable doubt. It is obvious therefore, that the acquittal of the plaintiff by a jury is entitled to very little if any weight on the question, whether there was probable cause.
In an action for malicious prosecution the burden of proving a want of probable cause is in the first instance on the plaintiff, for the law presumes, that every public prosecution is founded on probable cause. But as a want of probable cause is a negative proposition necessarily difficult of direct proof, slight evidence is regarded as sufficient to prove such want of probable cause. See Vinal v. Core & Compton, 18 W. Va. 41; Williams v. Taylor, 6 Bing. (19 E. C. L. 49); Taylor v. Williams, 2 B & Ad. 845 (22 E. C. L. 199); Cotton v. James, 1 B. & Ad. 128 (20 E. C. L. 360). But slight as the evidence is, that is necessary to prove in the first place a want of probable cause, yet there are many cases, which hold that the acquittal of the plaintiff by a jury will not even amount to prima facie evidence of such want of probable cause, though some have said such acquittal would amount to prima facie evidence of a want of probable cause, and thus throw the burden of showing, that there was probable cause, on the defendant. It is obvious therefore from the decisions, that if the acquittal of the plaintiff is any evidence at all on [241]*241the question of whether there was or was not probable cause, it is entitled to very little weight. See Vinal v. Compton, 18 W. Va. 42. The final conviction of the plaintiff is however obviously conclusive of probable cause and therefore precludes necessarily an action for malicious prosecution.
. Suppose however the conviction is by some inferior tribunal or by a justice or other magistrate under some statute, and judgment of conviction is appealed from and is reversed by an Appellate Court, what eftect in an action for malicious prosecution should be given to this judgment of conviction subsequently reversed ? There has been upon this question much controversy and dispute. In a number of cases decided by highly respectable courts it has been held, that in an action for malicious prosecution for an offence a conviction of the plaintiff of the offence before a court or justice having jurisdiction is conclusive evidence of probable cause, although upon appeal from the court or justice the plaintiff was acquitted. See Whitney v. Peckham, 15 Mass. 243; Parker v. Farley, 10 Cush. 279; Herman v. Brookerhoff, 8 Watts 240; Kaye v. Kean, 18 B. Mon. 839; Palmer v. Avery, 41 Barb. 290; Griffis v. Sellars, 4 Dev. & B. (N. C.) L. 176; Parker v. Huntington, 7 Gray 36; Barton v. Kavanaugh, 10 La. Ann. But in other cases it is held, that such a conviction, though afterwards reversed, is conclusive of probable cause, unless the plaiutiff knew the testimony before the justice was false, or unless undue means of some character were used by the prosecutor to procure conviction before the justice. See Womack v. Circle, 32 Gratt. 324; Payson v. Caswell, 22 Me. 212; Witham v. Gowen, 14 Me. 362; Reynolds v. Kennedy, 1 Wils. 237; Cloon v. Gerry, 13 Gray 201. On the contrary there are many respectable authorities, who hold that in an action for malicious prosecution for a criminal offence a conviction of the plaintiff of the offence before a court or justice having jurisdiction is only prima facie evidence of probable cause, when upon an appeal from the court or justice the conviction is reversed or the accused discharged. See Goodrich v. Warner, 21 Conn. 432; Mellor v.
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GeeeN, Judge :
The motion to exclude from the jury all the plaintiff’s evidence, which was made in this case by defendant and sustained by the circuit court, ought not to have been sustained, unless upon a demurrer to the plaintiff’s evidence the court [239]*239ought to have sustained the demurrer, this motion to exclude the evidence being simply a substitute in our practice for a demurrer to the evidence. James & Mitchell v. Adams, 8 W. Va. 568, syllabus 5. The rules as to the weight to be given to the evidence in such cases are well settled in our State and have often been announced by this Court. The most recent announcement of them is to be found in Allen v. Bartlett, 20 W. Va. 46, syllabus 1. This rule, when applied to a motion by a defendant to exclude from the jury all the plaintiff’s evidence, would be, that such -motion should not be sustained and all the plaintiffs evidence excluded from the jury, unless the plaintiffs evidence was insufficient to sustain his case after allowing full credit to all of his evidence and not only admitting all facts directly proved by it but also admitting all facts and conclusions, that a jury might fairly infer from the facts proven.
In this case it was necessary for the plaintiff' in order to sustain his case to prove: 1st, that the prosecution alleged in the declaration had been set on foot and conducted to its termination in the final discharge of the plaintiff in the manner alleged in the declaration; 2d, that it was instigated and procured by the defendant; 3d, that it was without probable cause; and 4th, that it was malicious. See Vinal v. Core & Compton, 18 W. Va. syl. 2 p. 1 and pp. 23, 24 and 25, and Scott & Boyd v. Shelor, 28 Gratt. 899. According to the principles laid down in the first of these cases it is clear, that the evidence of tire plaintiff in this case, when we allow, as we must as the case is presented to us, full credit to all of it and treating as true every fact directly testified to by any of the plaintiff’s witnesses, as also every fact and conclusion that the jury might fairly have inferred from the facts proven, fully establishes the first, second and fourth of the above requisites. This is not disputed by the counsel for the de-. fendant in error in this Cóui’t. But in his argument he insists that the third of these requisites is not established by the evidence, that is, that the plaintiff’s evidence fails to establish, that his prosecution and arrest at the instance of the defendant was without probable cause.
Was the committing of the defendant to jail to be there detained to answer an indictment by the justice after the [240]*240examination of the charge against him conclusive evidence, that there was probabU cause for his prosecution ? If the plaintiff has been found guilty by a jury, he cannot of course sustain an action for malicious prosecution, because it is obvious, that the verdict of a jury conclusively establishes, that the defendant had 'probable cause for instituting the prosecution; and the* defendant will not be heard to say or offer proof, that the prosecution was without probable cause. On the other hand if the jury has acquitted the plaintiff* and he has been discharged, he may institute this action, but he cannot sustain it, if the defendant proves, that he had probable cause for instigating the prosecution; for the verdict of the jury of not guilty is of course not conclusive evidence of a want of probable cause; for the jury may well have found the plaintiff not guilty, though they were satisfied from the evidence, that there was a strong probability of his guilt; for they could not find othewise, unless his guilt was proved beyond all reasonable doubt. It is obvious therefore, that the acquittal of the plaintiff by a jury is entitled to very little if any weight on the question, whether there was probable cause.
In an action for malicious prosecution the burden of proving a want of probable cause is in the first instance on the plaintiff, for the law presumes, that every public prosecution is founded on probable cause. But as a want of probable cause is a negative proposition necessarily difficult of direct proof, slight evidence is regarded as sufficient to prove such want of probable cause. See Vinal v. Core & Compton, 18 W. Va. 41; Williams v. Taylor, 6 Bing. (19 E. C. L. 49); Taylor v. Williams, 2 B & Ad. 845 (22 E. C. L. 199); Cotton v. James, 1 B. & Ad. 128 (20 E. C. L. 360). But slight as the evidence is, that is necessary to prove in the first place a want of probable cause, yet there are many cases, which hold that the acquittal of the plaintiff by a jury will not even amount to prima facie evidence of such want of probable cause, though some have said such acquittal would amount to prima facie evidence of a want of probable cause, and thus throw the burden of showing, that there was probable cause, on the defendant. It is obvious therefore from the decisions, that if the acquittal of the plaintiff is any evidence at all on [241]*241the question of whether there was or was not probable cause, it is entitled to very little weight. See Vinal v. Compton, 18 W. Va. 42. The final conviction of the plaintiff is however obviously conclusive of probable cause and therefore precludes necessarily an action for malicious prosecution.
. Suppose however the conviction is by some inferior tribunal or by a justice or other magistrate under some statute, and judgment of conviction is appealed from and is reversed by an Appellate Court, what eftect in an action for malicious prosecution should be given to this judgment of conviction subsequently reversed ? There has been upon this question much controversy and dispute. In a number of cases decided by highly respectable courts it has been held, that in an action for malicious prosecution for an offence a conviction of the plaintiff of the offence before a court or justice having jurisdiction is conclusive evidence of probable cause, although upon appeal from the court or justice the plaintiff was acquitted. See Whitney v. Peckham, 15 Mass. 243; Parker v. Farley, 10 Cush. 279; Herman v. Brookerhoff, 8 Watts 240; Kaye v. Kean, 18 B. Mon. 839; Palmer v. Avery, 41 Barb. 290; Griffis v. Sellars, 4 Dev. & B. (N. C.) L. 176; Parker v. Huntington, 7 Gray 36; Barton v. Kavanaugh, 10 La. Ann. But in other cases it is held, that such a conviction, though afterwards reversed, is conclusive of probable cause, unless the plaiutiff knew the testimony before the justice was false, or unless undue means of some character were used by the prosecutor to procure conviction before the justice. See Womack v. Circle, 32 Gratt. 324; Payson v. Caswell, 22 Me. 212; Witham v. Gowen, 14 Me. 362; Reynolds v. Kennedy, 1 Wils. 237; Cloon v. Gerry, 13 Gray 201. On the contrary there are many respectable authorities, who hold that in an action for malicious prosecution for a criminal offence a conviction of the plaintiff of the offence before a court or justice having jurisdiction is only prima facie evidence of probable cause, when upon an appeal from the court or justice the conviction is reversed or the accused discharged. See Goodrich v. Warner, 21 Conn. 432; Mellor v. Baddeley, 6 Car. & P. 374 (25 E. C. L. 494); Jones v. Kirksey, 10 Ala. 939; Moffatt v. Fisher, 47 Ia. 473; Burt v. Place, 4 Wend. 591; Whitworth v. Hall, 2 C. & M. 675 (22 E. C. L. [242]*242173); Israel v. Brooks, 23 Ill. 575; Thorpe v. Balkett, 25 Ill. 339; and the dissenting opinions of Judges Staple?,' and Burke in Womack v. Circle, 29 Gratt. 196-205, 32 Gratt. 343. The court of appeals of Virginia seemed on this question to be divided, Judges Anderson, Moncure and Christian being of opinion, that the .conviction of the plaintiff by a justice, though reversed on appeal, was conclusive evidence of probable cause for the prosecution, while Judges Staples and Burke held it to be only prima facie evidence.
I do not deem it necessary to express any decided opinion on this mooted point; for if it were admitted that the judgment of a justice convicting the plaintiff of a crime, though reversed on appeal, was conclusive evidence that there was probable cause for the prosecution, it would by no means follow that the judgment of a justice, not that the plaintiff was guilty of a crime,, but simply that there was probable cause for a prosecution and the committing to jail to. answer an indictment, if one should be found, would necessarily be entitled to the same weight and consideration and be also held conclusive that there was probable cause for the prosecution. In the one case the justice must have convicted, because on the evidence he believed the plaintiff guilty beyond all reasonable doubt of the crime, with which he was charged; and surely such judgment is entitled to much more weight in determining the question, whether there was probable cause for the prosecution, than a simple judgment requiring the plaintiff to answer an indictment, should one be 'found. It is to be presumed, that the justice would not have found the defendant guilty and pronounced sentence on him, unless after, a full and careful examination of the case the evidence adduced was very strong to show, that he was guilty of the offence charged ; and it may perhaps be that such judgment of conviction, even if reversed, ought to protect the prosecutor from any action for malicious prosecution, though I am not prepared at this time to say it would, if the want of probable cause for the prosecution was distinctly shown. But if the action of the justice has been simply to commit the plaintiff to answer an indictment, if one should be found, we have no such confident assurance, that there hasbeen a careful examination of the case by the justice, nor have we any suchassur-[243]*243anee, that the evidence was very strong to show that he was guilty of the offence charged. Such examinations are frequently carried on in a careless manner, and especially is this true when the party can give and is allowed to give bail as in the case before us; the justice may and is likely in such ease to commit for trial on perhaps too slight evidence, believing that in so doing much less injury is inflicted on the plaintiff, if not guilty; than would be, were he topronounedhim guilty and pass sentence upon him.
It seems to me therefore, that whatever conclusion may be reached, when the plaintiff has been pronounced guilty on a trial of a case on its merits by the justice, on the question, whether or not the prosecutor ought to be exempt in every case from an action for malicious prosecution, merely because the plaintiff has been found guilty and sentenced by a justice, when this judgment on appeal has been reversed, yet when the plaintiff has been only committed by a justice to answer an indictment, should one be found, and is after-wards acquitted or discharged, such commitment ought to be regarded as strengthening the weak legal presumption, which without evidence always exists, that every public prosecution is based on probable causes, and it ought to exempt the defendant in an action for malicious prosecution from all liability, unless the plaintiff' satisfies the jury by evidence of the existence of enough facts known to the defendant, when ho instigated the prosecution, to suffice to show that the defendant had no probable cause for the prosecution; and if the plaintiff thus rebuts this prima fade, strengthened though it be by the judgment of the justice, he is entitled to recover in his action. The defendant cannot justly shield himself from responsibility by merely producing the mittimus of a justice. He must meet the positive proof of the plaintiff, that the defendant acted without probable cause, by counter proof, or he ought to be liable in this action, if he acted with legal malice. This may be regarded as the settled law in Virginia. It was so expressly decided as far back as 1815 in Maddox v. Jackson, 4 Munf. 465; and, so far as I know, no judges in Virginia or in this State have ever disapproved of this case.
The counsel for the plaintiff in error appears from his argu[244]*244ment to think, that this case is inconsistent with that of Womack v. Circle, 32 Gratt. 324, in which a bare majority of the court concurred; but as I have said, I do not consider these cases as inconsistent, and it is obvious, that the majority of the court, who concurred in this last decision, regarded it as entirely consistent with the decision in 4 Munford. "For Judge Anderson, who pronounced the opinion concurred in by the majority of the court, while he does not mention the case in 4 Munford, does expressly approve of the principles laid down in it. He says: “But proof that the magistrate bound.the party over to appear at court being an e.r parte, examination to inquire whether the plaintiff should be put on his trial is not conclusive evidence of probable cause.” See 32 Gratt. 338. And Judge Staples, who pronounced the opinion of the majority of the court in that ease expressly approves of this decision in 4 Munford. See 32 Gratt. 352. So, as I understand, this casein 4 Munford was either expressly or impliedly approved by all the judges in Womack v. Circle, 32 Gratt. 324. It was also, as I understand, followed by the court of appeals of Vh’giniain Scott and Boyd v. Shelor, 28 Gratt. 891. In that case the plaintiff was arrested and taken before a United States commissioner upon a charge made by tlie defendant of passing counterfeit money. Upon hearing the witnesses, the commissioner sent the plaintiff on for trial before the district court of the United States at Abingdon; and upon the final trial the plaintiff was acquitted by a jury. He thereupon brought his action for a malicious prosecution against the defendant and recovered a verdict and judgment for damages; which was unanimously affirmed by the court of appeals of Virginia. Now the functions of a commissioner in committing for trial are precisely like those of a justice of the peace. He must decide, that there is at least probable cause, before he can send on for further trial. In this respect therefore this case was precisely like Maddox v. Jackson, 4 Munf. 462, and it was clear-ly decided, that, though a party prosecuted for a crime is examined by the justice or commissioner, and he decides that there is probable cause to believe accused guilty and sends him on for trial as in this case, and he is subsequently acquitted by a jury and discharged, he may dispite his having been thus com[245]*245mitted by the justice or commissioner sustain an action for malicious prosecution, if he can establish by evidence, that the prosecution was without probable cause; and of course his mere commitment could not have been regarded by the court as conclusive evidence of probable cause. This decision rendered in 1815 and reported in 4 Munford has never been called in question in this State; and we are bound by its authority, and I have no disposition to call it in question, as it seems to me to have been based on good reason. Especially am I disposed to acquiesce in it, as it is well supported by decisions elsewhere, which lay down the law in like manner. See Johnson v. Martin, 3 Munf. (N. C.) 248; Bostick v. Rutherford, 4 Hawks (N. C.) 83; Ewing v. Sandford, 19 Ala. 605 ; Haupt v. Pohlmann, 1 Rob. (N. Y.) 121; 16 Abb. (N. Y.) Pr. 301; Kendrick v. Cypert, 10 Humph. (Tenn.) 291.
I desire here to call attention to a misuse of language sometimes fallen into by judges. They sometimes speak of the judgment of the justice committing the accused for trial as prima fade evidence of probable cause subject to be rebutted by other testimony. This for instance is the language used by Judge Staples in Womack v. Circle, 32 Gratt. 352. He should have said that such judgment of a justice was sufficient evidence of probable cause and strengthened the weak presumption, which alwaj's exists in the absence of all evidence, that every public prosecution is founded on probable cause (See Vinal v. Core & Compton, 18 W. Va. 41); but that this prima facie presumption strengthened as it is by such a judgment of a justice can nevertheless be rebutted by other testimony.
I conclude therefore, that the commitment of the plaintiff by Justice Zinn to the jailer of Bitcie county on a charge of crime on the oath of the defendant and the order to hold him until the next term of the circuit court, or until he was discharged in course of law, did not conclusively show, that his prosecution was based on probable cause, but it did tend to show that, and it strengthened the presumption, that his original arrest was based on probable cause; and it was incumbent on the plaintiff to show, that he was arrested and imprisoned on a charge made by the defendant, which was not based on probable cause. Hid the evidence of the plain[246]*246tiff show, that he had been arrested and imprisoned on a charge not based on probable cause; and it did overthrow the legal presumption, that the prosecution was based on probable cause strengthened, as it was, by his having been committed by Justice Zinn to answer an indictment? It seems to me clear that it did; for the plaintiff’s evidence showed, that the timber he cut upon the land of the defendant, was cut under contract, which the defendant had made with a party, who had transferred to the plaiirliff his contract. The occasion for issuing this warrant for the arrest of the plaintiff and for charging and prosecuting the plaintiff with a crime was nothing but a controversy as to the extent and character of the plaintiff’s right to cut timber on the defendant’s land. That he had such right does not seem to have been even disputed. Certain it is, that the plaintiff under this contract claimed bona ikle, the right to cut this timber. If by his interpretation of this contract he claimed a greater right to cut timber than he realty had, and undertook against the protest of the defendant to exercise this right, he clearly did not thereby become a criminal, and did not subject himself to a criminal prosecution, and therefore this prosecution was without probable cause. Regarding the evidence as we must, as the case is now presented to us, if the defendant had demurred to the plaintiff’s evidence, we must also hold as obvious, that the jury could from this evidence have fairly inferred, that the plaintiff acted with legal malice.
I am of opinion therefore, that whpn construed, as we must construe it, this evidence fully establishes the plaintiff’s right to sustain this action. lie has sufficiently by his evidence established each of the four requisites we have laid down as incumbent on him.
The circuit court therefore erred in excluding from the jury the plaintiff’s evidence on the motion of the defendant; and for that reason the judgment of the circuit court rendered on March 3, 1883, must be set aside, reversed and annulled; and the verdict of the jury must be set aside and a new trial directed; and the plaintiff in error must recover of the defendant in error his costs in this Court expended; and this case must be remanded to the circuit court of .Ritchie with directions to be further proceeded with according [247]*247to the principles laid down in this opinion, and further according to law.
The Othee Judges Conquered.
JudgmeNt Reversed. Cause Remanded.