2. The suit is either a criminal prosecution, a conviction before a magistrate, or a civil action. The suit need not be altogether without foundation; if the part which is groundless has subjected the party to an inconvenience, to which he would not have been exposed had the valid cause of complaint alone have been insisted on, it is injurious. 4 Taunt. 616; 4 Rep. 14 1 Pet. C. C. Rep. 210; 4 Serg. & Rawle, 19, 23.
3. To make it vexatious, the suit must have been instituted maliciously. As malice is not in any case of injurious conduct necessarily to be inferred from the total absence of probable cause for exciting it, and in the present instance the law will not allow it to be inferred from that circumstance, for fear of being mistaken, it casts upon the suffering party the onus of proving express malice. 2 Wils. R. 307; 2 Bos. & Pull. 129; Carth. 417; but see what Gibbs, C. J., says in Berley v. Bethune, 5, Taunt. 583; see also 1 Pet. C. C. R. 210; 2 Browne's R. Appx. 42, 49; Add. R. 270.
4. It is necessary that the prosecution should have been carried on without probable cause. The law presumes that probable cause existed until the party aggrieved can show to the contrary. Hence he is bound to show the total absence of probable cause. 5 Taunt. 580; 1 Campb. R. 199. See 3 Dow. Rep. 160; 1 T. Rep. 520; Bul. N. P. 14; 4 Burr. 1974; 2 Bar. & C. 693; 4 Dow. & R. 107; 1 Car. R. 138, 204; 1 Gow, Rep. 20; 1 Wils. 232; Cro. Jac. 194. He is also under the same obligation when the original proceeding was a civil action. 2 Wils. 307.
5. The damage which the party injured sustains from a vexatious suit for a crime, is either to his person, his reputation, his estate or his relative rights. 1. whenever imprisonment is occasioned by a malicious unfounded criminal prosecution, the injury is complete, although the detention may have been momentary, and the party released on bail. Carth. 416. 2. When the bill of indictment contains scandalous aspersions likely to impair the reputation of the accused, the damage is complete. See 12 Mod. 210; 2 B. & A. 494; 3 Dow., & R. 669. 3. Notwithstanding his person is left at liberty, and his character is unstained by the proceedings, (as where the indictment is for a trespass, Carth. 416,) yet if he necessarily incurs expense in defending himself against the charge, he has a right to have his losses made good. 10 Mod. 148,; Id. 214; Gilb. 185; S. C. Str. 978. 4. If a master loses the services and assistance of his domestics, in consequence of a vexatious suit, he may claim a compensation. Ham. N. P. 275. With regard to a damage resulting from a civil action, when prosecuted in a court of competent jurisdiction, the only detriment the party can sustain, is the imprisonment of his person, or the seizure of his property, for as to any expense, he may be put to, this, in contemplation of law, has been fully compensated to him by the costs adjudged. 4 Taunt. 7; 2 Mod. 306; 1 Mod. 4. But where the original suit was coram non judice, the party as the law formerly stood, necessarily incurred expense without the power of remuneration, unless by this action, because any award of costs the court might make would have been a nullity. However, by a late decision such an adjudication was holden unimpeachable, land that the party might well have an action of debt to recover the amount. 1 Wils. 316. So that the law, in this respect, seems to have taken a new turn, and, perhaps, it would now be decided, that no action can under any other circumstances but imprisonment of the person or seizure of the property, be maintained for suing in an improper court. Vide Carth. 189.
See, in general, Bac. Abr. Action on the case, H; Vin. Abr. Actions, H c; Com. Dig. Action upon the case upon desceit; 5 Amer. Law Journ. 514; Yelv. 105, a note 2; Bull. N. P. 13; 3 Selw. N. P. 535; Notes on Co. Litt. 161, a, (Day's edit.); 1 Saund. 230, n. 4; 3 Bl. Com. 126, n. 21, (Chit. edit.); this Dict. tit. Malicious Prosecution.