46 S.E. 332 | S.C. | 1903
November 27, 1903. The opinion of the Court was delivered by The plaintiff in his complaint alleges the shipment by express to him from Statesville, N.C., to Greenville, S.C. of one gallon of corn whiskey, purchased in Statesville exclusively for his own personal use, and the malicious, wilful and unlawful seizure from the express company of the whiskey by the defendant, a dispensary constable; that he gave the defendant full notice before the seizure, that the whiskey had been purchased in Statesville, N.C., and was intended for his own personal use; that he was damaged by said seizure to the amount of five hundred *493 dollars. The answer denies the whiskey was purchased in Statesville or shipped therefrom, or that it was intended for personal use, or that plaintiff notified him that it was so intended, and that it had been purchased in Statesville or shipped therefrom, or that the plaintiff had been damaged. The denial of the eighth paragraph of the complaint, which alleges the notice above referred to, is somewhat irregular in form, but its sufficiency is not now before the Court. No direct reference is made in the answer to the seventh paragraph of the complaint, in which defendant is charged with wilful, malicious and unlawful seizure, but the third paragraph of the answer contains the following: "Further answering, defendant alleges: That if liquor was seized in transit to plaintiff, such seizure was legal and proper, the said plaintiff having the reputation of a liquor dealer, and having been convicted of selling liquor in violation of law, and at the times alleged in his complaint herein, as defendant is informed and believes, the said plaintiff was maintaining in the City of Greenville a place where persons were allowed to resort for the purpose of drinking liquor, and where it was bargained or sold or given away in violation of law."
The plaintiff moved to strike out this second defense, on the ground that it is irrelevant, immaterial, redundant, argumentative and does not state facts sufficient to constitute a defense. The motion was denied, and the first exception draws in question the correctness of the decision.
It is the duty of dispensary constables to seize contraband liquor as directed by the statute law of the State. If, however, they seize liquor not contraband, they go beyond the law and violate individual right. If this is done wilfully and maliciously, they are liable for punitive damages. Liquor purchased in another State and shipped to the purchaser in this State is not contraband, being protected as an article of interstate commerce until it is delivered to the purchaser. Rhodes v. Iowa,
Even if the liquor was exempt, the material inquiry in a case of this kind is, whether the constable knew, or ought to have known, it was exempt, or was he endeavoring with due caution to honestly exercise the duties of his office in making the seizure? In meeting this issue, the fact that the plaintiff had the reputation of being a liquor dealer, and had been convicted of selling liquor contrary to law, and that he habitually kept liquor for sale in violation of the law the constable was required to enforce, would be a very cogent defense. Those who habitually engage in the illicit sale of liquor are professional criminals, and it would be, indeed, singular that a constable charged with unlawfully, wilfully and maliciously seizing the kind of property with which they ply *495 their trade, should not be allowed, after denying the notice of the exemption imputed to him by the plaintiff, to allege and prove the reputation of the defendant as an illicit liquor dealer, and the fact that he was actually engaged in selling contraband liquor, in rebuttal of the charge of wilful and malicious seizure of exempt liquor. It is possible for a burglar to have shipped to him a kit of tools, intending to use them for the exclusive purpose of opening his own safe, but it would be a very effective defense for a police officer, charged with wilful and malicious tort in seizing the tools, to allege and prove their owner was known as a professional cracksman and was actually engaged in plying his trade with other tools when the tools intended for a lawful purpose were seized.
It is true, as a general rule, reputation, good or bad, may not be pleaded or proved as a defense in a civil action. Exceptions to this rule embrace actions for breach of promise, seduction malicious prosecution, libel and slander, assault and battery. As another exception, "in actions of tort, wherever the defendant is charged with fraud from mere circumstances, evidence of his general good character is admissible to repel it." Greenleaf on Evidence, 54: Dawkins
v. Gault, 5 Rich., 153; Werts v. Spearman,
Proof of the facts alleged here might be made under the general denial of wilfulness and malice, and a general denial would have been more in accordance with the best rules of pleading. But it does not follow the allegation should be stricken out as redundant and argumentative. "If a complaint or petition should, in violation of the principles established by the reformed procedure, allege the evidence of some issuable or material fact instead of the fact itself, or should state a conclusion of law in place of the proper fact or facts which support it, these averments would be irregular, imperfect, insufficient and liable to correction by a motion; but they might not be necessarily redundant. If the pleading was not reformed, and if the defect was not so serious as to render it demurrable, it would be treated on the trial as sufficient; and the statement of probative matter or of legal conclusions would take the place of the issuable or material facts which ought to have been averred, and would thus become material." (Pomeroy on Remedies, sec. 551.) The first exception is overruled.
The Circuit Judge sustained the demurrer interposed by defendant to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, in that suit could not be brought against the defendant individually, but must be brought upon his official bond. Since the decision of Scott v. Donald,
In 1900, the General Assembly passed an act amending the dispensary law, and the portion of the amendment which is now under consideration appears in the Civil Code, in section 661: "Such constables shall, before entering upon the duties of their office, each give bond to the State in the sum of five hundred dollars, with surety or sureties to be approved by the attorney general, conditioned for the faithful performance of the duties of his office; and in case of the breach of said bond, suit may be brought thereon by any person aggrieved thereby, either in the county where any of the obligors reside or in any county where said breach may have occurred."
The question is, whether suit on the bond of the constable was intended to be the exclusive remedy of the owner, where liquors in transit from another State or imported for personal use are wilfully, maliciously and unlawfully seized. In considering whether the remedy was intended to be exclusive, it must be remembered the General Assembly had before it the principles laid down by the cases above referred to. There are no words in the statute indicating the exclusion *498
of other remedies; but, as was held in Moore v. Ewbanks,
Section 600 of Criminal Code provides: "Chapter I., title VII., of the Code of Civil Procedures of this State, entitled `Of Provisional Remedies in Civil Actions,' shall not apply to any officer or person having duties to perform under this chapter, and in no case shall an action lie against any such officer or person for damages to person or property, as provided in said chapter." Title VII., of chapter I., of the Code of Civil Procedure, relates to arrest and bail, and hence the position of defendant that it prohibits an action of this kind, cannot be sustained.
For the reasons above stated, the second exception is sustained. *499
The judgment of this Court is, that the judgment of the Circuit Court dismissing the complaint be reversed.