vexatious suits

VEXATIOUS SUITS, torts. A vexatictus suit is one which has been instituted 
maliciously, and without probable cause, whereby a damage has ensued to the 
defendant. 
     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 deceit; 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.