The action lies against a corporation ag gregate if the prosecution be commenced and carried on by its agents in its interest and for its benefit, and they acted within the scope of their authority; 6 Q. B. D. 287; Goodspeed v. Bank, 22 Conn. 530, 58 Am. Dec. 439 ; Reed v. Bank, Mass. 443, 39 Am. Rep. 468 ; American Exp. Co. v. Patterson, 73 Ind. 430; Poll. Torts 301; [1900] 1 Q. B. 22; contra, 11 App. Cas. 250 (a dictum, see id. 244, 256). See also Cooley, Torts 121; 7 C. B. N. S. 290. There must be express precedent authority or subsequent ratification by the corporation ; Canon v. R. Co., 216 Pa. 408, 65 Atl. 795.
The proceedings under which the original prosecution or action was held must have been regular, in, the ordinary course of jus tice, and before a tribunal having power to ascertain the truth or falsity of the charge and to punish the supposed offender, the now plaintiff; Bodwell v. Osgood, 3 Pick. (Mass.) 379, 15 Am. Dec. 228. When the proceedings are irregular, the prosecutor is a trespasser ; Turpin v. Remy, 3 Blackf. (Ind.) 210. A warrant issued to a proper officer for the arrest of one accused of crime need be executed in order to support an action for malicious prosecution ; Halberstadt v. Ins. Co., 194 N. Y. 1, 86 N. E. 801, 21 L. R. A. (N. S.) 293, 16 Ann. Cas. 1102; and a writ of attachment in garnishee process sued out maliciously and without probable cause, even though the court had no jurisdiction, is suffi cient; Ailstock v. Lime Co., 104 Va. 565, 52 S. B. 213, 2 L. R. A. (N. S.) 1100, 113 Am. St. Rep. 1060, 7 Ann. Cas. 545.
The burden is on the plaintiff to prove af firmatively that he was prosecuted, that he was exonerated or discharged, and that the prosecution was both malicious and without probable cause ; 11 Q. B. D. 440; Webb, Poll. Torts 392; Boyd v. Cross, 35 Md. 194; Miller v. Milligan, 48 Barb. (N. Y.) 30; Stone v. Stevens, 12 Conn. 219, 30 Am. Dec. 611.
Malice is a question of fact for the jury, and is generally inferred from a want of probable cause ; Brounstein v. Wile, 65 Hun 623, 20 N. Y. Supp. 204 ; but it is not evidence of malice when the prosecutor honestly be lieves in the charge; [1891] 2 Q. B. 718; and such presumption is only prima facie and may be rebutted ; Lunsford v. Dietrich, 86 Ala. 250, 5 South. 461, 11 Am. St. Rep. 37; see Cartwright v. Elliott, 45 Ill. App. 458. Although absence of reasonable and prob able cause is sometimes evidence of malice, yet it is not when the prosecutor actually believes in the charge ; [1891] 2 Q. B. 718. From the most express malice, however, want of probable cause cannot be inferred ; Boyd v. Cross, 35 Md. 194. Both malice and want of probable cause must concur in order to constitute a cause of action ; Fenstermaker v. Page, 20 Nev. 290, 21 Pac. 322 ; Glasgow v. Owen, 69 Tex. 167, 6 S. W. 527; Coleman
v. Allen, 79 Ga. 637, 5 S. E. 204, 11 Am. St. Rep. 449 ; Crescent City Live Stock Co. v. Slaughter House Co., 120 U. S. 141, 7 Sup. Ct. 472, 30 L. Ed. 614. The plaintiff must show total absence of probable cause, wheth er the original proceedings were civil or crim inal ; 11 Ad. & E. 483 ; Stone v. Crocker, 24 Pick. (Mass.) 81; Ives v. Bartholomew, 9 Conn. 309 ; Jackson v. Linnington, 47 Kan. 396, 28 Pac. 173, 27 Am. St. Rep. 300; Bar hight v. Tammany, 158 Pa. 545, 28 Atl. 135, 38 Am. St. Rep. 853.
Probable cause means the existence of such facts and circumstances as would ex cite the belief in a reasonable mind that the plaintiff was guilty of the offence for which be was prosecuted ; Cooper v. Utterbach, 37 Md. 282 ; Lunsford v. Dietrich, 86 Ala. 250, 5 South. 461, 11 Am. St. Rep. 37. It is such conduct on the part of the accused as may induce the court to infer that the prosecution was undertaken from public motives ; Ul mer v. Leland, 1 Greenl. (Me.) 135, 10 Am. Dec. 48. See, also, Hirsch v. Feeney, 83 Ill. 548; French v. Smith, 4 Vt. 363, 24 Am. Dec. 616; Tucker v. Cannon, 32 Neb. 444, 49 N. W. 435. Where there are grounds of suspi don that a crime has been committed and the interests of public justice require an in vestigation, there is said to be probable cause, however malicious the intention of the accuser may have been ; Cro. Eliz. 70 ; 2 Term 231; Pangburn v. Bull, 1 Wend. (N. Y.) 345 ; Faris v. Starke, 3 B. Monr. (Ky.) 4; Sanders v. Palmer, 55 Fed. 217, 5 C. C. A. 77. It is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the accused is guilty of the with which he is charged ; Sanders v. Palmer, 55 Fed. 217, 5 C. C. A. 77. And probable cause will be presumed until the contrary appears ; circumstances sufficient merely to warrant a belief by a cautious man are not sufficient, but the belief must be that also of a reasonable and prudent man; McClafferty v. Philp, 151 Pa. 86, 24 Atl. 1042. The plaintiff must prove affirmatively the absence of probable cause and the existence of malice, and where the defendant had a very treacherous mem ory, and went on with the prosecution under the impression that the plaintiff had committed perjury, yet if that was an honest impression, the result of a fallacious memo ry, and acting upon it, he honestly believed the plaintiff had sworn falsely, the English court of appeals held that the jury would not be justified in finding that the defend ant had prosecuted the plaintiff maliciously and without probable cause ; 8 Q. B. D. 174. It makes no difference how malicious may have been the private motives of the party in prosecuting ; he is protected if there was probable cause; Sanders v. Palmer, 55 Fed. 217, 5 C. C. A. 77.