"and take from thence his arms or any other property"

John Porteous, vs. Joseph Hazel and Joseph Jenkins. 

[1824]

   Defendants with others, assuming to act as a patrol, went into the house of plaintiff and took from thence two guns. Plaintiff was not then in his house; but a coloured person, who had charge of the plantation. No captain of patrol was present, but the son of the captain of patrol, who claimed to command as being authorised by his father. Held that they were no lawful patrol and their act a trespass.

   The jury were bound to find damages at least to the value of the property taken.

   The action was trespass for taking two guns from the plantation of the plaintiff, on Lady's Island. The defendants and others assuming to act as a patrol, went into the house of the plaintiff and took from thence two guns, proved to be of the value of twenty-five dollars. The plaintiff was not then living in his house, but it was in the possession of a coloured man who took charge of, and acted as overseer of the plantation. He was asleep when they came to the house and opened the doors. No regularly appointed captain of patrol was present; but the son of the captain of patrol, who claimed to command by the authority of his father, as his deputy.

                                                                     Verdict, one Cent.

   A motion is now made for a new trial on the grounds:
   1st. That the verdict was against law, in as much as the plaintiff proved the deprivation of property to the amount of twenty-five dollars.
   2nd. Because the verdict was against evidence.
   The opinion of the Court was delivered by Mr. Justice [C.J.] Colcock.

   If the case had been one in which the discretion of the jury was unlimited the court would not interfere; but it is imperiously called on to preserve the law, whenever its wise and wholesome provisions are violated by the verdict of a jury. The defendants and those associated with them cannot be considered as a patrol. The powers given to the patrol are great; and many of them in opposition to the common law rights of the citizens. The legislature were, therefore, guarded in the delegation of this extraordinary power. They direct that the captain of the beat company shall appoint a fit and discreetson to act as captain of the patrol, and require that he shall prick off the names of such persons as are intended to be placed under his authority, requiring them to perform this duty twice in every month. The law further gives to the captain of the beat company authority to fine the captain of patrol for a neglect of duty; and to the captain of the patrol, the power of fining those who are placed under his command for any disorderly conduct. A strict conformity to these provisions is indispensably necessary to constitute a legal patrol, and here we find the son of the captain of the patrol acting for him. Was he answerable to the captain of the beat company? Surely not. Could he control the acts of those who were with him by fine or imprisonment? Surely not. Again, one of the defendants was uot on the list of those who had been placed under the authority of Mr. Tripp the elder. But supposing they had been a regularly constituted patrol? There is no authority given by the patrol law or any other law of the state, to enter the dwelling house of one, a free man of the country, in which there was no riot nor disorder, and take from thence his arms or any other property. The act then was illegal and the evidence was clear that the property taken was worth twenty-five dollars. The jury then were bound to have found for the plaintiff at least the value of the property taken. The law entitled him to recover so much at least. He was as much entitled to a verdict for that amount as if he had brought assumpsit and proved a sale of the property. Whether they should have found greater damages was for them to determine, therefore no opinion will be expressed as to that. The motion is granted.

Bay and Richardson, Justices concurred.

 [Reports of cases determined in the Constitutional Court of South Carolina. By The State Reporter. Vol. I. COLUMBIA PRINTED BY BLACK & SWEENY. 1824.]