The defendant knew that the plaintiff had no property except an amount of $31.50 due to him by the railroad company for a month’s service already rendered. The defendant, in his testimony, said, “I knew *296tbe plaintiff bad little or no property, except bis clothes and tbe amount due him by tbe railroad.” With a knowledge of this fact, tbe defendant sued out arrest and bail proceedings, in which it was alleged that the plaintiff was indebted to him in tbe sum of $13.60; and that he bad disposed of bis property with intent to defraud bis creditors, and was about to depart from tbe State. After tbe arrest bad been made, tbe plaintiff gave tbe defendant an order on tbe railroad company for tbe debt. No return of tbe proceedings has ever been made by tbe Justice by whom the process was issued. There was testimony going to show that tbe defendant bad abused tbe process of tbe law in having issued these proceedings; that his purpose was not to collect bis debt by means of legal remedies invoked in good faith, but to compel tbe debtor to pay to escape tbe humiliations and pains of imprisonment. There was no pretense that tbe plaintiff bad disposed of any of bis property. Indeed, be bad nothing to dispose of except tbe $31.50, and that sum tbe defendant knew be bad not disposed of. Creditors must learn that they cannot resort to the process of the law to enable them to extort from a debtor that which could not be appropriated to their debts by the law. But tbe debtor, when be becomes a plaintiff against the creditor in a.n action to recover damages on account of injuries which be has sustained by reason of his unlawful arrest and tbe abuse of process of tbe court by tbe creditor, must show that be has been injured by such proceedings. If tbe arrest was accompanied with malice, gross negligence, insult or other aggravating circumstances, punitive damages will be awarded. If not, the plaintiff can recover only for actual damages, including injury to feelings and mental suffering. In tbe case before us there was, from the testimony, an entire lack of those elements which would subject tbe defendant to damages as smart *297money — punitive damages. Upon a close scrutiny of the testimony — of the plaintiff’s particularly — we are unable to discover that the plaintiff' has suffered any damage whatsoever. There was no testimony that the marriage was delayed or postponed in any way by reason of the arrest; none that the plaintiff underwent mental or physical suffering: none that he lost employment or credit, or suffered any injury to his character and standing in the community. It is true, that he showed that Mr. Patterson had annulled a business contract with him, but he did not say that that act of Mr. Patterson was on account of the plaintiff’s arrest by the defendant or that it had any connection with it: and Mr. Patterson testified that, he had not heard of the plaintiff’s arrest when the agency was revoked by him. He also testified that Mr. Yanstory, the keeper of a livery stable, had refused to credit him, but he did not say that the refusal of credit was on account of the plaintiff’s arrest. "We are, therefore, of the opinion that his Honor was in error when he refused to instruct the jury sa asked in the defendant’s first prayer for instructions, which was in these words: “The plaintiff cafinot, upon his allegation, recover exemplary or punitive damages, and there is no evidence of actual damage to plaintiff by reason of the arrest.” It is unnecessary to discuss the other exceptions. The plaintiff would be entitled to nominal damages and such actual damages as he may show he has sustained.
New Tria .