The opinion of the Court was delivered by
Mr. Justice AVatts.
These two cases were for the purpose of recovering the value of a case of whiskey, each of which was shipped from Jacksonville, Fla., to plaintiffs, delivered by the shipper to defendant’s company, and for failure to deliver the same to the plaintiffs, and for the penalty of fifty dollars in each case for failure to adjust said claims within forty days after the claims had been filed with the agent of the defendant. The cases were tried together before the magistrate who decided them in favor of the defendant. Plaintiffs appealed to- the Circuit Court and the Circuit Court reversed the judgment of magistrate and rendered judgment for the plaintiffs in each case for the amounts sued for, and for fifty dollars penalty. From judgment of Circuit Court defendant appealed.
1
Exceptions one and two are overruled as the questions raised by these exceptions are conclusively decided in the recent cases of
Varnsville Furniture Company
v.
C. & W. C. Railroad Co.,
and
DuPre
v.
C., N. & L. Railroad Co. (S. C. Advance Sheets.)
2
As to exceptions three, four, and five, which challenge the correctness of his Honor’s finding, they are overruled as there is abundant evidence to sustain him. The evidence shows beyond doubt that the whiskey was ordered for personal use and lawful purposes. There is not
a.scintilla
of evidence that the plaintiffs intended it for any illegal or unlawful purpose whatsoever, and under the law of the land a person can order and keep in possession whiskey for .personal use so long as he does not attempt to use it unlawfully, by selling it, etc. A mere suspicion that it is’ intended for unlawful purpose is not sufficient to withhold or seize his property; there must be evidence of some
sort to support the charge that it is for unlawful use. In this case the agent of defendant refused upon demand to deliver the whiskey to plaintiffs and sent it back to Florida, and made no effort to deliver it to plaintiffs until after suit was commenced. The evidence shows a wilful disregard of defendant’s duty to the plaintiffs. The exceptions are overruled.
Judgment affirmed.
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