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.

Source: Bouviers Law Dictionary 1856 Edition