Opinion by

In an action for malicious prosecution it is essential that *462want of probable cause and malice concur. Want of probable cause will raise the presumption of malice, but this may be rebutted by evidence negativing such malice. It is well settled, as was said by Mr. Justice Tjrunkey in McCarthy v. De Armit, 99 Pa. 67, that what facts and circumstances will amount to probable cause is a question of law; whether they exist in a particular case is a question of fact; where the facts are in controversy the subject must be submitted to the jury, in which event it is the duty of the court to instruct them what'facts will constitute probable cause and submit to them only the question of such facts: Dietz v. Langfitt, 63 Pa. 241. Following this well and clearly defined principle, the learned judge in this case instructed the jury that to entitle plaintiff to recover he must show that the prosecution was instituted without cause and with malice, and after defining malice he says: “We say to you that if the account given by Leahey (appellee) is a true one, if you believe what he says as to the agreement and the manner and terms upon which he regained the possession of the four notes, there was no larceny of the notes; that he was entitled to their possession, and his taking them off the desk was not a felonious taking. In other words, we say to you that March had no probable cause to suppose the taking of the notes was a theft of them, nor that it was other than Leahey had a right to do under the agreement.” The last sentence is made the first assignment of error, and it is contended that it amounted to a binding instruction to find for plaintiff.

The malicious prosecution for which this action was brought arose from a transaction in reference to four promissory notes drawn by the Altoona Fuel & Ice Co., to the order of John Flannigan, and in regard to the appellee’s account of the transaction the learned judge said: “ The theory of the plaintiff’s complaint is that on the agreement the four notes were placed in March’s (appellant’s) hands as collateral security for a loan on them of fifty per cent of the amount of the notes, or for the return of the $200, and that as March could not raise the sum of fifty per cent of the notes, he was therefore entitled to the return of the $200; and as Leahey, at March’s request, actually returned the $200 by his check, he, Leahey, was entitled to have again the four notes. He contends that his picking them *463off the desk, where March had laid them for him, was not an offence at all; that it was only carrying out the terms of the agreement; that, as he had paid back the #200, the notes were redeemed from the pledge ; and, in short, they were his notes again and his own property. If this narration of Leahey is correct, then the notes were Leahey’s again and he had a right to take them.” It is manifest that if appellee owned the notes and had a right to take them there was no probable cause for his arrest for stealing them, and when the learned trial judge used the words in question, in connection with that which preceded, he simply indicated to the jury, that if those facts were true appellant had no probable cause to suppose the appellee in taking them was guilty of a theft. It is claimed that he intended them as a binding instruction. Clearly they were not so, and it is equally clear that the jury could not have so understood them.

The appellant undertook to overcome the presumption of malice by showing that, before commencing the prosecution, he consulted counsel. To do this it was necessary for him to show that he had fairly and honestly stated his whole case to them: Mahaffey v. Byers, 151 Pa. 97 ; McCarthy v. De Armit, supra. If however it was shown that in fact he submitted a false statement to them, such presumption would not be rebutted: Emerson v. Cochran, 111 Pa. 623. The learned judge in regard to this part of the defence charged as follows, viz.: “Now we instruct you that if the weight of the evidence shows you that the facts iu regard to the four notes coming into the possession of Leahey are as stated by March, and all the other testimony adduced by him, which he alleges corroborates him, and that he laid a full and fair statement of these facts before his attorneys; and they, on that statement, advised a prosecution; and he, in good faith, followed that advice, then there was probable cause for the prosecution, and if you believe his statement, and that of his attorneys, then there is evidence upon which you can find that the prosecution was not malicious. In that case, the plaintiff would not be entitled to recover anything; and your verdict would be for the defendant.”

It is contended that the court erred in using the words “ then there is evidence upon which you can find that the prosecution was not malicious,” but should have instructed them to find *464for the defendant, if the weight of the evidence was as stated. If this portion of the sentence be taken with the succeeding one, it is apparent that he did substantially so instruct them. He says in the sentence immediately following: “ In that case, the plaintiff would not be entitled to recover anything; and your verdict would be for the defendant.” Upon an examination of the bill of exceptions filed, it appears that the word “ and” before “in that case ” was written by the stenographer, and in correcting his charge was erased by the learned trial judge, whose scholar^ instinct doubtless impelled him to do so ■ for the sake of accuracy of style. It is more than probable that in fact it was actually used, and in this connection the question was fairly left to the jury to determine whether appellant did make a full and fair statement of the facts to his counsel and whether he in good faith followed their advice. In view of the disputed fact these were questions for the jury, and, having been submitted to them, they have determined that he did not do so. The facts in this case were submitted to the jury with proper instructions, and this judgment is affirmed.