Russell v. Shuster

The opinion of the Court was delivered by Gibson, C. J. A constable may justify an arrest for reasonable cause of suspicion alone; and in this respect he stands on more favourable ground than a private person, who must show, in addition to such cause, that a felony was actually committed. The difficulty in regard to the first bill of exceptions before us, is to determine whether circumstances of suspicion which might have been pleaded in justification, as it is said the circumstances which would have been disclosed by the rejected evidence might have been, were competent to go to the jury under the general issue in mitigation of damages. The objection rests on the rule which requires matter of justification to be pleaded specially. At the first blush, one would not perceive a reason to preclude a party who had waived the benefit of a full defence, from showing the purity of his motives to shield him from exemplary damages; and there is in truth none except that the plaintiff is not apprized by [310] the pleadings of the defendant’s intention. Yet where the defendant is not at liberty to apprize him by pleading in justification, the matter is for that very reason allowed to be given in evidence. But whatever inconsistency there may seem to be in point of principle, it is certain that where the plaintiff had charged want of probable cause in his declaration, and thus evinced a readiness to meet the defendant on that ground, it was ruled in Rowcliffe v. Murray, (1 Car. & Marshm. 513), that the charge may be rebutted; and the point was not ruled on the 21 Jac. 1, c. 12, which allows special matter in certain cases to be given in evidence under the general issue, but on the principles of the common law. That case is in point; for the declaration before us charges the arrest to have been without probable cause; and if, as it is asserted, the plaintiff’s trunk contained the instruments of a burglar, the defendants should have been allowed to show it. It is not the business of the officers to handle these people with gloves; and where they have, in strictness, transcended the authority of the law, they should be allowed to show that they had not molested them wantonly or inconsiderately. But proof of the plaintiff’s character was properly excluded. There are undoubtedly analogous cases in which the law has been held differently; for instance, Leicester v. Walter, (2 Camp. N. P. C. 251); Williams v. Callender, (Holts N. P. 307); Miles v. Spencer, (Ibid. 534); and- v. Moor, (1 M. & S. 284; all but the last, decided at Nisi Prius. But the doctrine was fully considered, and the incompetency of such evidence deliberately settled in Jones v. Stevens, (11 Price 283). The ground taken in the concurrent opinions of the barons of the exchequer, trite, but not the less true, is that a party whose character is not put in issue, is not bound to hold himself in perpetual readiness to defend it; otherwise, it was said, “ any man might fall a victim to a combination made to ruin his reputation and good name, even by means of the very action he should bring to free himself from the effects of malicious slander.” The second bill of exceptions, therefore, is not sustained. Judgment reversed, and venire de novo awarded.