Allen v. Staples

72 Mass. 491 | Mass. | 1856

Metcalf, J.

The court see nothing unconstitutional or irregular in the proceedings under which these liquors were seized and held by the defendant. The complaint, the warrant and service thereof, and the action of the magistrate, appear to conform to the requisitions of St. 1855. c. 215.

The only open question in this case therefore is, whether the owner of liquors, which have been seized and are held by an officer, by virtue of that statute, under valid legal process, legally served, can maintain an action of replevin against the officer and take the liquors from him, while that process is pending. We are of opinion that he cannot. Liquors so seized and held are in the custody of the law, and cannot, at common law, be replevied. Ilsley v. Stubbs, 5 Mass. 283. Smith v. Huntington, 3 N. H. 78. Are they repleviable under our statute law—Rev. Sts. c. 119 ? The St. of 1855, c. 215, makes it quite clear, we think, that they are not. Section 25 authorizes the issuing of a warrant to search for and seize liquors, and requires the officer who seizes them to keep them until final action shall be had on the warrant. The purpose of such seizure and keeping is shown by § 27, namely, that the liquors may be adjudged to be forfeited to the Commonwealth, and, if they are suitable for certain uses mentioned, to be disposed of in one way ; but, if not suitable for such uses, to be disposed of in another way, to wit, to be destroyed. These proceedings are authorized and directed on the ground that liquors kept for sale, contrary to law, are common nuisances, as § 37 declares that they are, and requires that they be regarded and treated as such. These provisions extend also to the vessels in which the liquors are contained, and are wholly incompatible with the owner’s right to take the liquors and vessels from the officer, by replevying them, when the officer seizes and holds them under a valid warrant legally served. As well might the owner of obscene books, lottery tickets, tools for counterfeiting coin, or gaming apparatus, seized on a search warrant legally issued and served, replevy them before trial on the warrant.

In Cawthorne v. Campbell, 1 Anstr. 212, Chief Baron Eyre said: “ If a man at this day, there being a seizure in order to condemnation, was to presume to replevy the goods, it would be a contempt of the court, for which an attachment would be granted instantly.” Plaintiff nonsuit.