Howe v. Stewart

40 Vt. 145 | Vt. | 1868

The opinion of the court was delivered by

Prout, J.

Upon the facts, as shown by the agreed case, there was a complete and perfected sale of the liquors in question to Kirk. He acquired the title thereto upon its delivery to the carrier for transportation to Waterbury, its place of destination. Bligh v. James, 5 Allen, 106. As creditors with respect to its sale to Kirk, the plaintiffs set up the right to reclaim it in transitu, upon the ground that Kirk had become insolvent. We have no doubt but that this species of property is a subject of sale, and liable to attachment by a creditor of the owner, and in this instance upon the facts, by the creditors of Kirk, it having arrived at its place of destination. Guilford et al. v. Smith et al., 30 Vt. 49. The statute relating to the traffic in intoxicating liquors, in none of its provisions, touches the title upon a sale, but its provisions are directed against its manufacture and sale by unlicensed persons, provides for its seizure, destruction or confiscation, and imposes a fine upon those guilty of a violation of its provisions, It was then Kirk’s property, and while his, at its place of destination was attached by the defendant, as an officer, by virtue of legal process against Kirk, and in favor of liis creditors. The lien upon it, and thus acquired, cannot be defeated by this action. Were the liquors in transitu, when attached by the defendant, the Gen. Stat. ch. 94, § 32, in terms denies the plaintiffs any right of action for that purpose. It provides “ that no action of any kind shall be had or maintained in any court of this state, for the recovery or possession of intoxicating liquor,” &e. Again, those liquors were purchased, as the case shows, for the purpose of- retailing, in violation of the provisions of the statute referred to, and this was known by the plaintiffs when they sold and shipped them to Kirk. Under such circumstances the law will not aid the plaintiffs, thus implicated, in enforcing a claim confessedly arising in contravention of its mandates ; nor aid them in reclaiming the possession of the liquors when sold and held, with the deliberate intention of violating its provisions. Territt v. Bartlett, 21 Vt. 184; Lord v. Chadbourne, 42 Me. 440; Treat v. Jones, 28 Con. 334. These views' render it unnecessary for us to consider the other question made in the case.

The judgment of the county court^js reversed, and judgment that the property replevied be returned to the defendant, and that he recover one dollar damages and costs.