Denied September 15, 1914.
On Petition for Rehearing.
(143 Pac. 929.)
Mr. Justice Mooredelivered the opinion of the court.
It is maintained by plaintiff’s counsel in a petition for rehearing that an alleged error, duly assigned, properly set forth and orally argued at the trial in this court, was not referred to in the opinion, whereby their client was prejudiced. The action of the trial court thus complained of consists in receiving, over objection and exception, testimony given by the defendants and their witnesses tending to show that the reputation of the plaintiff for honesty, integrity and moral worth in the vicinity in which he lived was bad at the time the search-warrant was procured, when no testi*288mony on the subject had been given by him or his witnesses.
6. In an action to recover damages for cansing to be issued without probable cause a search-warrant, upon a complaint based on information and belief, the plaintiff shows a prima facie case when he proves at the trial that, upon search by an officer, the property involved was not found as disclosed by the return indorsed on the writ, and that for a long time prior to the search the plaintiff had borne a good reputation in the community for honesty and integrity: 25 Am. & Eng. Ency. Law (2 ed.), 151; Newell, Malic. Prosecution, 273; Hilliard, Torts (3 ed.), 462. Another text-writer discussing this subject remarks:
“In an action for wrongfully suing out a search-warrant, where the evidence as to plaintiff’s guilt is purely circumstantial, his good character may be shown to disprove reasonable cause on defendant’s part for suing out the writ”: 35 Cyc. 1276.
To the same effect, see, also, Israel v. Brooks, 23 Ill. 575; Mark v. Merz, 53 Ill. App. 458; Blizzard, v. Hays, 46 Ind. 166 (15 Am. Rep. 291); McIntire v. Levering, 148 Mass. 546 (20 N. E. 191, 12 Am. St. Rep. 594, 2 L. R. A. 517); Olson v. Tvete, 46 Minn. 225 (48 N. W. 914); Woodworth v. Mills, 61 Wis. 44 (20 N. W. 728, 50 Am. Rep. 135).
7. In such case as testimony regarding the plaintiff’s good reputation is admissible when offered by him, for the purpose stated, so, too, evidence of his bad reputation must also be receivable to rebut an inference of want of probable cause when, upon a search of his premises or person, the property sought to be recovered is not found. Thus in Rodriguez v. Tadmire, 2 Espinasse’s Nisi Prius Rep. 720, in an action for malicious prosecution, where the defendant gave evi*289dence of probable cause, it was ruled that a witness might be asked whether the plaintiff was not a man of notoriously bad character, though an objection was made by his counsel to the inquiry on the ground that character was not in issue in the case, so that he could come prepared with evidence to meet it. Such evidence is in the nature of a confession and avoidance, and is admissible only for the purpose stated. It was thought that the principle here announced governed the question, and for that reason no mention was made in the former opinion of the alleged error here considered.
8. It is contended that, having determined that errors were committed at the trial, the law applicable to the facts involved was misconstrued in concluding that the jury found the plaintiff’s wife consented to the unauthorized search. It is argued that where a person pretends to act as an officer, under supposed authority of a warrant, and so notifies the party accused or the agent authorized to speak for him, there can be no valid consent to a search though in fact assented to. The case of Regan v. Harkey, 40 Tex. Civ. App. 16 (87 S. W. 1164), is cited in support of the doctrine insisted upon. In that case, at the request of the defendant, an officer, without a warrant searched the plaintiff for money that later was discovered to have been stolen by another person. In an action to recover damages sustained it was ruled that the fact that the plaintiff, after he was arrested, and in order to convince his accusers of his innocence, expressed a willingness to be searched did not relieve the defendant of liability. In that case no writ of any kind had been issued, but as a party who is sui juris can waive every known right that he possesses, except such as the public, repre*290sented by the state, is interested in preserving, it would seem that the relinquishment referred to offered a sufficient defense, and that the conclusion reached was not founded in reason. But however that may be, in the case at bar, a search-warrant was obtained and exhibited to the plaintiff’s wife by the defendant Mc-Duffee, who evidently believed the writ was valid, and that he had been duly appointed as special constable to serve it.
The consent of the plaintiff’s wife to search the premises waived the informalities occurring in the complaint, writ and appointment of the supposed officer, and, such being the case, we adhere to the former opinion.
Affirmed. Rehearing Denied.