This is a suit for damages for a malicious prosecution, or for causing the arrest of the plaintiff without probable cause. The court below awarded the plaintiff $250.
It appears that the defendant and a brother of the plaintiff had a difficulty in front of plaintiff's house.
As a sequence of this difficulty the defendant was arrested for assault and battery and pleaded guilty to the charge. The charge against defendant was made by his adversary in the difficulty.
The defendant then made an affidavit and caused the arrest of the plaintiff together with her brother, charging them with assaulting him with a dangerous weapon.
The grand jury investigated the charge against the plaintiff and returned not a true bill.
It is conceded that the plaintiff called to her husband to separate the defendant and her brother, and that the husband took no greater part in the difficulty than that of separating the combatants.
There is a decided conflict in the evidence as to whether the plaintiff did any more than *Page 578 to call on her husband to take the defendant off of her brother.
The evidence clearly shows however that the plaintiff did not make any assault on the defendant, either with her hands or with a dangerous weapon as was charged against her in the affidavit.
The trial judge after hearing all of the witnesses found that the charge against the plaintiff was without probable cause, and we agree with him. We think, however, that, in view of all the circumstances of the case, the amount allowed plaintiff is excessive.
There was only a constructive arrest under the charge made against her. She was never actually arrested and was never taken charge of by the constable. That officer went to plaintiff's house, and found her in bed, sick. He informed plaintiff's husband that he had a warrant for the arrest of plaintiff, and that information was conveyed by the husband to the plaintiff.
The constable was assured that as soon as plaintiff was able to do so she would go to the office of the justice of the peace and furnish bond, and this she did a few days after she was notified of the warrant.
The plaintiff was a frail woman, delicate in health, of a nervous and excitable nature, and possibly suffered occasional hallucinations, but we are not impressed from the evidence that this condition was superinduced by the charge made against her by the defendant.
The judgment appealed from is reduced to the sum of $100, and, as thus amended, is affirmed. The costs of appeal to be paid by plaintiff. *Page 579