4 Iowa 430 | Iowa | 1857
The defence is based upon an assumed construction of the act for the suppression of intemperance, of January 22d, 1855. Statute 1855, 58. This act provides that the keeping of intoxicating liquor, with intent oil the part of. the owner, to sell the same within this state, contrary to the provisions of this act, is prohibited, and the intoxicating liquor so kept, is declared a nuisance. But under the same act, such liquors might be sold by authorized agents, for medicinal, mechanical, and sacramental purposes, and they might be manufactured in the state, for the purpose of being sold according to the provisions of the act. Section seven provides that upon the trial of an indictment or information under the act, the finding the liquor named in the proceeding, in the possession of the accused, in any place, except in his private dwelling-house, or its dependencies, is taken as presumptive evidence that it is kept or held for sale, contrary to the provisions of the act.
The assignment of errors next requires attention. The second is, that the court erred in finding the value of the brandy at $15.50; the third, in finding it of any value; the fourth, in finding that Bowen and King were not partners at the time defendant alleges that he kept, horses for them. (This relates to the set-off.) These assignments refer to the finding of the facts by the court. This is not within our province to examine, in the present cause. When there is a motion for a new trial, upon some ground which brings up the evidence, then this court looks into that evidence upon such motion. But it cannot review the finding of the court or of a jury, simply as a verdict, and on errors assigned thereon.
The other errors assigned, are: 1. In holding that plaintiffs could maintain the action for the brandy, that being declared a nuisance by statute; 2. In holding that the owning brandy in the state of Iowa by the plaintiffs, as they did,
Then, it is to be observed, that the above presumption, under the statute, is made upon the trial of an indictment or information, and tbe statute goes no farther. And it may be doubted, whether the defendant has a right to make that presumption in pais ; and it becomes a question, whether this is such a nuisance as can be abated by any one, at his election. ^ One thing, at least, seems manifest, as the plaintiffs could lawfully possess brandy in this state, if the defendant has undertaken to abate it as a nuisance, the burden is on him to show that it existed under such circumstances as to constitute it a nuisance. He must plead and show the requisite facts. This he has not done. His answer really amounts only to a denial of the undertaking to carry, but he has thrown into it some allegations that the contract to carry was void; yet he has shown no fact or circumstance making it void under the law.
The court found that the set-off was against one only of the plaintiffs, and thereupon held that it could not be pleaded against the two. We would take this occasion to make a remark upon the manner of pleading in set-off. Counsel will bear in mind, that a set-off is not a defence to an action; and, therefore, it is not to be confounded with the defence, but should be pleaded separately.
There is no error in the rendition of the judgment by the District Court, and the same is affirmed.