VEXATION. Theinjury Or' damage which •is suffered. in•consequence ofthatricks of another. .;,;• „ ' VEXA.TI0178.1rOIT. Tortis. A suit Which has been instituted malibionsly,, and Withont' probable Cluiskarhereby a damage liaS' ensued to the defendant.
2: The suit is eitheip, Criminal Proseciition, a conviction beforea' Magletrate, or a civil action.• The.suit need•not he-altogether with nut foundation : if• the part which is ground less has subjected the- party‘to an inconve aience to, Which. he. woald• not• have been •exposed: had: the. cause• of. complaint Alone have been insisted on it is injurious. 4 Taunt. 616; 4 Coke., •14; Pet.•C. C. 210; 4 Serg. & Penn..19,.23. .
•_`` TO .inake' it vexations, the suit riiiist have .been inatitnted: maliciously. A's Malice is 'not' in any '&tse of injurious conduct•necessa rily. to be inferred from the totaVahsence of :Probable.' Canie for. excitiiik it;.and! in' "tbp 'present' iii,Sttince tile law will' notallow it to 'be' inferred, NOM. tbat•circumstance, for, fear 'Of beirtg -Mistaken, ;it ca,sta Upon the/suffering party the-enifkof prOVing express malice. 2 S'67 ; 129; earth, 417. But /see What-Gibbs; C. J., says, in Berley v. Be /thnnis. 5.Taa*t; 583;' see, also, 1, Pet. C. C..210 ; 2 Browne, Penn. Apx. 42, 49; Add. Penn. 270.
3. It is necessary that the prosecution should have been carried on without probabli &rinse. The law prestimek. 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 Camp.•199.• See 3 Dowl.
Cas. 160; 1 Term, 520; Buller, Nisi P.14; 4 13tirt. 1974; 2 Barriew. ec C. 693; 4. Dowl. Ss R. 107; 1 Gow, 20; 1 Wils. 232; Croke Jac. 194. He is also.under the same obligation when the original proceeding was a civil action.: 2 Wils. 307..
4: The damage which the party injured! AustainS from a' Vexations suit for' a crimeis eIther to his perSdn, his' reputation, his estate, or his,lrelative rights. _First, whenever im prisonment is occasioned by a malicious un founded criminal prosecution, the injury is complete .although the detention • may have been monnentary and the party released on bail; 'i,Carth. 416. SecOnd, When the,bill of
in'dictrnent • contains scandalons aipersions to.impairthe reputation of the accused, tbe , daniage is complete. See 12 Mod. 210; 2, Barnew. &• Ald.• 494; 3 Dowlv &• R. 669. rhird, notwithstanding his person is •left liberty; and his. character is unstained by the prObeedings (as, where the indictinent ii for atreapies, Carth. 4I6).. yet if he necessarily ineurs. expense in defending himself against the charge,•he. has a right to have his losses made good: 10 Mod. 148, 214; Gilb.: 185; Finirth,- if a: master loses the services and assistance of his domestics in consequence of a vexatious•suit, he _may claim a compen sation.. Hammon.d, Nisi P. 275.
S. With,regard: to a damage resulting from a civi/ action, when prosecuted in a court of competent jurisdiction,•the only detriment the .party cart sustain-is• the imprisonment of his person; or the 'Seizure of his• property ; for, as to any expense' lie' may' be:put to, this, in con templation of law; has been fully compensated to the,Costs adjudged. 4 Taunt. 7 ;. 1 Mod. 4 ;• 2 id. 306. But where the original suit was coram non judice, the party, as the law' forinerly stood, necessarily incurred ex .pense .without • the power of remuneration, unless by this ietion ; because any award of costs•the court might make would have been a nullity., However, by a late decision, such adjudication•was holden unimpeachable, and that the party inight well have an action of debt tii recoVer the amount. 1 Wils. 316. So that" the lair, in this reSpect; seems to have taken a new tura ; 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 main lained• for. suing in an improper court. See .Cttrth: 189. , See in , general, Bacon, Abr. Action on the Ca' Se (H),;,. Viner, Abr. Actions (H Comyns, , Action,..upon the Case upon Deceit. ; 5 Am. Law•Journ. 614; Yelv. 105 a, I note 2 ; Buller, Nisi P. 13 ;• 3 Selwyn, Nisi P. 535 ; Co. Litt. D:ay's ed. 161, n.; 1 Saimd: 230, n. 4 ; 3 Sharswood,' Blackst. Comm.. IA n.; MA140101313 PROSECUTION.