#### SAMUEL J. BRADLEY vs. ISAAC MORRIS.

In an action for a malicious arrest in a civil suit, probable cause is a question for the Court.

Malice a matter of fact for the jury, which may be inferred from want of probable cause. In such an action, the jury may give exemplary damages,

(The case of Gilreath v. Alien» 10 Ire., 67, cited and approved.) '

This was an action on the case por a malicious arrest of the plaintiff in ,a civil suit, at the instance of the defendant. Pleas — not guilty — -justification.

Upon ^ie trial before his Honor, Judge Ellis, at McDowell, on the last Spring Circuit, it appeared that both the plaintiff and defendant resided in McDowell county near to each other, and that the plaintiff had prepared to remove to the State of Missouri— having sold his property and closed up his business, and that his intention of removing was generally known in the neighborhood and to the defendant. That when the plaintiff had proceeded as far west as the French Broad, in the county of Buncombe, the defendant caused a writ in case at his instance to be issued against him, under which the plaintiff was arrested by the sheriff of Buncombe, and held to bail — the same being for an alleged claim against the plaintiff’s father, who was still in McDowell county, and the accusation by the defendant at the time being that the plaintiff had run away. The plaintiff returned to McDowell county, and defended said suit; and the record thereof was exhibited, and showed that the defendant had submitted to a non-suit in the same, some six months after the return of the writ, and before the commencement of this suit. That whilst the plaintiff was in custody of the sheriff of Buncombe, the defendant proposed to release him, if he would pay him the sum of two hundred *396dollars. Evidence was then offered to show that the claim against the plaintiff’s father, for which said action was alleged tobe brought, had been paid off prior to that time, which fact was controverted by evidence on behalf of the defendant; and the plaintiff also introduced evidence to show that the defendant had previously resolved on arresting him, upon his starting on his said journey.

The defendant contended that the plaintiff’s father owed him a debt, and that when he issued the Writ in question, he believed the plaintiff had run away, and removed his father from the county, and that thereby an action had accrued to him under the statute ; and evidence Was offered tending to prove this defence ; and on the other hand, the plaintiff offered evidence tending to prove that the defendant knew that the plaintiff’s father had not left the county.

His Honor charged the jury, that if they believed the defendant knew he had no cause of action against the plaintiff when he issued his said writ, this would amount to a want of probable cause, and they might hence infer jnalice ; and furtheij^oharged, that they might give exemplary damages, by way of punishing the defendant»

There was a verdict, giving the plaintiff exemplary damages, and a rule for a new trial, because of error in the charge of the Court, as to that point, the defendant’s counsel insisting that exemplary damages could not be given in an action for malicious arrest, in a civil case ; and the rule being discharged, and judgment rendered on the verdict, the defendant appealed to the Supreme Court.

Bynum and N. W. Wood/in, for the defendant»

J. Baxter, for the plaintiff.

Battle, J.

The question of probable cause, in an action for a malicious arrest in a civil suit, as well as in an action for a malicious prosecution ill a criminal proceeding, is one of law; and his Honor was correct in deciding it as such; He was also undoubtedly correct in holding, that if the jury found that the defendant knew that he had no cause of action against the plaintiff, *397as the testimony tended to show, there was no probable cause for the arrest. The question of malice in such action is, on the other hand, one of fact for the jury ; and his Honor was right in submitting it to them as such, instructing them at the same time, that they might infer it from the want of probable cause. Mitchell v. Jenkins, 5 Barn. & Adol. Rep., 588 (27 Eng. Com. L. Rep., 131). Sutton v. Johnston, 1 Term Rep., 510. Bell v. Piercy, 5 Ire. Rep., 83.

The only remaining question is, whether the plaintiff was entitled to recover exemplary damages. In actions for slander, malicious prosecutions and wanton and malicious trespasses upon the person or property, it has been long settled in this State, that such damages may be given by the jury. In Gilreath v. Allen, 10 Ire. Rep., 67, which was an action for slander, the principle of all these cases is stated to be that “injuries sustained by a personal insult or an attempt to destroy character, are matters which cannot be regulated by dollars and cents. It is fortunate that while juries endeavor to give ample compensation for the injury actually sustained, they are allowed such full discretion as to make verdicts to deter others from flagrant violations of social duty. Otherwise, there would be many injuries without adequate remedy.” It is said further, that “ as malice must be proved, it is right that the damages should be in proportion to the degree of malice, and should not be restricted to a mere compensation for the injury actually done.”

The principle, thus announced, applies as strongly to the case of malicious arrest, as to those to which we have seen it has heretofore been applied ; and his Honor therefore, committed no error in telling the jury that they might give exemplary damages by way of punishing the defendant.

Pee. Curiam. Judgment affirmed.