47 Vt. 407 | Vt. | 1875
The opinion of the court was delivered by
In Plainfield v. Batchelder, 44 Vt. 9, it was held, as we think correctly, that the plea of not guilty, in this species of
II. We have discovered no lack of substance in the notice, if the notice were necessary. The statute allowing a defendant to state his defence by notice instead of by special plea, was passed to avoid the intricacies and formalities of a special plea. It simply requires that the defendant shall fairly notify the plaintiff of the substance of all the evidence upon which he will rely to establish his defence, without regard to the form or logical order of its statement. The notice in this case states the substance of the defence, and fairly notifies the plaintiff of all the evidence relied on to establish it. The manner in which the complaint was sworn to, is form and not substance. The substantial thing to be shown in this particular, was, that the complainants made oath to the truth of the complaint. This the plaintiff is notified of by the statement, that the complaint was duly sworn to. So, too, the verifi
III. It is objected that the warrant shown in defence, whether under the plea of not guilty or under the notice, is illegal and void, because it directed the defendant to search for and seize liquors kept by the plaintiff for sale contrary to law, either in that part of the building occupied by him, or in the store, rooms, and cellar occupied by Landon & Huntoon. It did not direct the defendant to search for liquors kept by Landon & Huntoon. All the rooms specified were in the same building. One of the terms used in § 22, ch. 94, of the Gen. Sts., as descriptive of the place which may be searched, is, “ Other building or place in said town.” The warrant in this respect is within the exact language of the statute. Neither is it open to the objection, if objection it be, that under it, two seizures against different owners could have been made. The officer was only commanded to search for such liquors in the various apartments of the building as were kept by the plaintiff. We do not think it commanded him to seize liquors in the apartments occupied by Landon & Huntoon, unless they were in the keeping of the plaintiff. The plaintiff has no right to complain that he was not the occupant of all the apartments searched. Their search could not harm him if he had nothing stored there, nor did it disturb his occupancy of them, unless he was an occupant. When Landon & Huntoon complain of the search of their apartments for liquors kept in them contrary to law by other persons, and come in collision with the officer making such search, it will be time to consider and decide their rights, and determine whether any of them has been infringed. It is enough in this case, that the officer was directed to search just such a place as the statute in terms provides for, and that the plaintiff did not stand in such a relation to any of the apartments searched, that he has a right to complain. This disposes of all the plain
IV. The statute provides that if the judgment in such cases shall be against the plaintiff, the liquors replevied “ shall be delivered to the defendant in the replevin, or to such officer as shall have warrant or authority to hold or destroy the same under the original seizure proceedings.” Gen. Sts. ch. 94, § 40. The county court refused to render any judgment in this case for the return of the liquors replevied, to which the defendant excepted. In this we think there was error. The defendant, it is true, was a deputized officer, and the record of the proceedings does not show that he held a warrant authorizing him to destroy the liquor, or that any person held such warrant. Unless it was shown that some other officer had the right to the custody of the liquors, inasmuch as it is shown that the defendant was entitled to the custody of them at the time of the replevin, the presumption is that he is entitled to their return. The record shows that the liquors have been adjudged forfeited ; but that would not take them from the custody of the defendant till a warrant was issued to some other officer. The defendant would have a right to retain the custody till such warrant is issued. If a warrant had been issued to some other officer, no harm could be done if the court had rendered judgment for the return of the liquors in the alternative, “ to the defendant or such officer as shall have warrant,” in the language of the statute. By § 41, ch. 94, Gen. Sts., the final execution in the seizure proceedings, was stayed till the termination of this suit. The final execution must include the warrant which turns the liquors over to the legally appointed agent of the town for examination, as well as the warrant which orders their destruction if not accepted by that agent. If that agent accepts the liquors as the property of the town, that fully executes the judgment of forfeiture. While the liquors are held by the officer serving the replevin writ, the magistrate before whom the seizure “proceedings were pending, had no control over the liquors, and could not turn them over to the town for examination. The town agent can examine only such liquors as are fully forfeited to the town ; and