Adams v. McGlinchy , 1876 Me. LEXIS 173 ( 1876 )

Danforth, J.

This is an action of trespass to recover the value of a quantity of intoxicating liquors taken 'from the possession of the plaintiff. The case was submitted to the justice of the superior court with the right of exceptions.

It appears that the plaintiff, a deputy sheriff duly qualified, had taken the liquors from one of the defendants, as being liable to forfeiture, by virtue of a warrant issued from the municipal court for the city of Portland. The taking by the defendants as alleged is admitted ; and in justification it is claimed that the property in the liquors was in one of the defendants, and that the warrant under which the plaintiff acted was insufficient and void.

Many objections are made to the warrant, and the presiding justice was requested in his ruling td sustain them. All these requests were refused, and to this refusal exceptions were filed.

The second, third and fourth requests rest upon the same objection differently stated, which is, that the warrant does not require the officer to bring before the court the persons keeping the liquors. What the result as to the validity of the warrant would be if this defect existed, we do not find it necessary to decide, as we do not find any such deficiency. The complaint which is a part of the warrant in this respect is technically correct. In the warrant, the names of the persons are inserted, and the officer is required “to apprehend the said McGlinchy and McCue, and bring before said court.” The defect complained of is that the pronoun them is omitted after the word bring. It is true that in the form prescribed by the statute the word here omitted is inserted. But the statute does not provide that that form alone shall be used. It only provides that it shall be sufficient. Any other form which is in substance the same, may be equally valid. If the omission left the officer in any uncertainty as to his duty, or left him to ascertain it from inference, there might be some ground for the objection. But there can be no such uncertainty. The word “bring” must necessarily apply to the persons named just as much as the word apprehend, and the duty of the officers to bring them before the court is by the language used as elegir and distinct as to arrest them.

The remainder of the numerous objections to the warrant allege its insufficiency under the constitution of this state and that of the United States, to authorize the officer to search the premises therein described. These objections we have no occasion to consider. The warrant was issued by a court of competent jurisdiction. It is sufficient in form to hold the liquor seized, and the persons therein named to answer for the violation of the law charged against them; in it every element necessary to make out the offense charged is duly and formally set out.

. Such a warrant would seem to be sufficient to authorize the officer to hold the liquors for the purpose of trial against all persons whether owners or otherwise. State v. McCann, 61 Maine, 116. State v. McCafferty, 63 Maine, 223. State v. Plunkett, 64 Maine, 534. Com. v. Welsh, 110 Mass. 359.

But were it otherwise we see no ground upon which the acts of the defendants can be justified. The case finds that the defendant, Hall, as a duly authorized officer, took the liquors upon a re-plevin writ in due form, but which he neglected to return to court, and that in the service of said writ, McGlinchy, who was plaintiff therein, acted as his aid. The excuse for not returning the writ was the insufficiency of the bond.

By the first request, the presiding justice was asked to rule that the defendants “finding said bond insufficient to justify said Hall in the service of said writ were not required to perform the useless ceremony of entering said writ in court where it would be at once abatable, but are entitled to justify by showing that said McGlinchy had a legal right to take said property without any writ.” This request was properly refused. It is true that the writ would be abatable, but that would have been only at the defendant’s election ; and it is not for the officer to say that it would be a mere “useless ceremony” to have it entered in court. But the last part is certainly not applicable to the facts in this case. If the defendant McGlinchy, had taken the liquors from the plaintiff, it may be clear that he might have justified by showing a “legal right” to do so. But whether, having taken them with a replevin writ, he could afterwards abandon that, and justify by showing property in himself is much more problematical. But even that door is not open to him in this case. It distinctly appears in the facts found, that Hall, as an officer with the writ in his hands, and at least by inevitable inference, by force of it, with the assistance of McGlinchy, took the liquors from the plaintiff, and “delivered them to Mc-Glinchy who caused them to be removed beyond the limits of the state. No further service of said replevin writ was made, neither was the same ever returned into court.”

The act of taking them was Hall’s and nót MeGlinchy’s. Hall was the principal, McGlinchy the servant. If the act of the former can be justified, then will that of the latter be. If it is not justified, if the principal was in the wrong, he could convey no authority to the servant. Whether McGlinchy had the general property in these liquors is not a material question here, even on the ground that the warrant under which they were first taken was insufficient ; it is rather a matter of right between the plaintiff and Hall.

It is conceded that at the time of the alleged trespass the liquors were in the exclusive possession of the plaintiff. That such a possession, even if wrongful, will enable him to maintain an action of trespass against one interfering with it without right, a mere wrong doer, is too well established to need the citation of authorities. The defendant, Hall, having taken them upon a legal precept not returned, cannot justify under that; and not only so, but in that act he violated an express provision of the law and was therefore guilty of a wrong. That he had any other right is not pretended except such as he might derive from his co-defendant. This, as we have seen, was none; and he was therefore a mere wrong-doer. It is also the same with McGlinchy. He did not at the time act under any pretended right other than what he claimed from the officer, which failing, he has nothing upon which to stand. The fact that McGrlinehy had the general property in the liquors, and that he lent his assistance to the officer, does not in the least change the character of the officer’s act. It cannot make his violation of the law justifiable ; and as he was aiding and abetting the officer he must share the same fate. We are not aware of any legal legerdemain by which these defendants having committed a violation of the law, a trespass, can, by changing places, make that right which when done was an unjustifiable wrong.

This proposition is not founded upon a mere technicality. The plaintiff, no doubt acting in good faith, had a right to the protection which the law gives him. If the property is taken from him without legal process, his remedy is one thing ; if it is taken by legal process it is another, and a very different thing. It is certainly material for him to know whether the property is taken on a claim of right solely, or on a legal process which he could not resist, and under which he was entitled to a bond for his protection, instead of being turned over to mere personal responsibility, with the property transferred beyond the limits of the state. The law is imperative that an officer serving a replevin writ shall return it with a bond into court. If this defense is sustained the law may be nullified at the pleasure of the officer, and the parties left to try their title without the burden of giving a bond by the one, or the protection which it affords to the other.

Exceptions overruled.

Judgment for the plaintiff. Damages to he assessed hy superior court, as agreed hy the parties.

Appleton, C. J., WaltoN, Barrows, Virgin and Peters, JJ., concurred.