Robinson v. Barrows , 48 Me. 186 ( 1859 )

Dayis, J.,

concurred in the result and delivered the follow-lowing opinion.

The first question presented in this case, is the right of an officer, under the statute of 1855, to seize intoxicating liquors without a warrant, and detain them in his custody twelve days before entering any complaint, or procuring any warrant. Assuming the right of seizure without a warrant, which is not conceded, the defendant had the right, by statute, “ to detain them until a warrant could be procured,” and no longer. This must be understood as a reasonable time for that purpose. It is obvious, that it would not, with proper diligence, have required more than one or two days. It would be highly dangerous to allow officers to detain persons or property, without legal process, any longer than the time reasonably necessary to procure one. The defendant, by detaining the liquors for a length of time altogether unnecessary and unreasonable, before procuring a warrant, became a trespasser ab initio. Burke v. Bell, 36 Maine, 317; Adams v. Adams, 13 Pick., 374. Such was the ruling at Nisi Prim.

But, there was evidence tending to prove that the liquors were intended for sale by the plaintiff in violation of law; and the defendant requested the Court to instruct the jury, that if they were so intended by the plaintiff for unlawful sale, the action could not be maintained. This was refused; and the Court ruled, that the statute of 1855, having been repealed, the action could be maintained.

The statute of 1855, c. 166, § 23, prohibited the maintenance of any such action, whether founded in tort or in assumpsit. But in its application to contracts, it was merely in affirmance of the common law. No contract, made in violation of any statute, is valid. Nor does it become valid if the statute is repealed. Hathaway v. Moran, 44 Maine, 67.

But a man may have a legal title to property which he intends to sell in violation of law. And, until he does some act concerning it, in violation of law, he is entitled to the protection of the law in his possession of it. As a general rule, a person is not liable to be punished for an intention to commit a crime; never, unless he has done some act in furtherance of that intention. One may have lumber which he intends to sell without its being surveyed, in violation of the statute. But while he is liable to be punished for the sale, if made by him, the intention to sell does not deprive him of his title to the property, nor of his right to the protection of law in his possession of it. And if a special statute should provide, that he should maintain no action therefor, (being applicable to the remedy only,) its repeal would entirely remove the obstacle. And, therefore, in the case supposed, an action could be maintained, though the trespass was committed while the statute was in force prohibiting the maintenance of the action. ■

But the Judge presiding at Nisi Prius erred in applying these principles to the case at bar. For there are certain cases in which the mere possession of certáin articles, with the intention of using them for illegal purposes, is itself an offence. And such a possession, being itself illegal, is entitled to.no protection of law; and the possessor could not maintain an action at common law against a trespasser. It is no offence for one to have possession of unsurveyed lumber, though he intends to sell it in violation' of law. And the intention so to sell it would be no bar to an action against a trespasser. But the mere possession of obscene books, with the intent to sell, or of counterfeiting materials, with the intent to use them for that purpose, is itself an offence. And, by the common law, no person having such illegal possession could maintain an action therefor against a trespasser. It would be strange, indeed, if courts of justice were under obligation to aid persons in^violating the law.

By the statute of 1855, it was not only made an offence to sell intoxicating liquors, but the possession of them, with the intent to sell them in violation of law, was a distinct offence, subjecting the liquors to forfeiture, and the owner to punishment. If the liquors were intoxicating, and the plaintiff in this case intended to sell them in violation of law, his possession was illegal, and entitled to no protection. In that case the action cannot be maintained. I therefore, concur in the opinion, that it must stand for trial.