McGlinchy v. Barrows , 41 Me. 74 ( 1856 )

Appleton, J.

The statute of 1853, c. 48, § 11, prescribes when and on what conditions a warrant may issue for the search of “ any dwelling-house in which or a part of which a shop is not kept,” &c. It is not alleged that the preliminary testimony, prescribed by this section, has been taken, or that a justification has been made out by virtue of its provisions.

The warrant, under which the defendants justify, like the complaint, alleges that “spirituous and intoxicating liquors were, and still are kept and deposited by Edward Gould, otherwise called Edward Goulding, or by a person or persons unknown, of Portland, in said county, in the shop of the said Edward Gould, otherwise called Edward Goulding, in Pore street, in said Portland, and the premises and dwelling-house therewith connected.” It will be perceived that in this complaint there is no allegation that a shop or other place for the illegal sale of liquors is kept in the dwelling-house directed to be searched. The case is directly within the decision of State v. Sanborn, 38 Maine, 32.

The dwelling-house to be searched was at the time in the occupation of the plaintiff. It was held, in Homes v. Taber, 1 R. I., 464, that a warrant to search the dwelling-house of a person, only authorized the sheriff to search the house in which such person lives; and if he searches a house hired and occupied by another, though owned by such person, he will be guilty of trespass.

It does not appear whether the liquors belonging to the plaintiff, which were seized by the defendant Barrows, were or not intended by the owner for sale, in violation of the statute. The ascertainment of that fact may be important for the just decision of this cause. Preston v. Drew, 33 Maine, 558; Black v. McGilvery, 38 Maine, 287.

By the agreement of parties a default is to be entered and damages are to be assessed by a Justice of this Court.

Defendants defaulted. Tenney, C. J., and Rice and Goodenow, J. J., concurred.