Getchell v. Page

• Decision Date: 08 January 1908
• Parties: GETCHELL v. PAGE et al.
• Court: Maine Supreme Court

69 A. 624

103 Me. 387

GETCHELL

v. PAGE et al.

Supreme Judicial Court of Maine.

Jan. 8, 1908.

Report from Superior Court, Kennebec County.

Trespass de bonis asportatis by Bernard E. Getchell against F. L. Page and others. Reported to the law court for its determination. Judgment for plaintiff.

Action of trespass de bonis asportatis brought in the superior court, Kennebec county. Writ dated August 10, 1906. The declaration in the writ is as follows:

"In a plea of trespass, for that the said defendants, at said Augusta, on the 13th day of June, A. D. 1906, with force and arms, took and carried away the goods and chattels, to wit, twelve bags containing cork stoppers, of the value of twenty dollars, three boxes containing cork stoppers, of the value of ten dollars, one pint copper funnel of the value, of one dollar, one-half pint copper funnel, of the value of seventy-live cents, one patent straining funnel, of the value of one dollar and twenty-five cents, one gallon copper measure, of the value of three dollars, one quart copper measure, of the value of one dollar and fifty cents, one pint copper measure, of the value of one dollar and twenty-five cents, one half-pint copper measure, of the value of one dollar, fifty quart bottles, of the value of one dollar and fifty cents, thirty pint bottles, of the value of sixty cents, fifty half-pint bottles, of the value of seventy-five cents, two baskets, of the value of one dollar, and four glass mugs, of the value of twenty cents, all then and there found and being the proper goods, chattels, and property of the plaintiff and of great value, to wit, the value of forty-three dollars and eighty cents, and then and there unlawfully converted the same to the use of the said defendants, against the peace of the state, and to the great damage of the plaintiff, as he says, the sum of five hundred dollars.

"And also for that the said defendants, at said Augusta, thereafterwards, on the said 13th day of June, A. D. 1906, willfully and maliciously intending and contriving to injure the plaintiff and to deprive him of his property, and to hinder and prevent him from carrying on his drug business, then and there with force and arms took from the possession of the plaintiff and carried away twelve bags containing a large quantity of cork stoppers, three boxes containing another large quantity of cork stoppers, one pint funnel, one-half pint funnel, one straining funnel, one gallon measure, one quart measure, one pint measure, one half-pint measure, fifty quart bottles, thirty pint bottles, fifty half-pint bottles, two baskets and four glass mugs, all then and there found and being the proper goods, chattels and property of the plaintiff and of great value, to wit, the value of forty-three dollars and eighty cents, and thence hitherto have maliciously and unlawfully deprived the plaintiff of the possession of the same, against the peace of the state, and to the damage of the said plaintiff as he says the sum of five hundred dollars, which shall then and there be made to appear, with other due damages."

Plea, the general issue with brief statement as follows:

"And for a brief statement of special matter of defense to be used under the general issue pleaded, the said defendants further say: That in taking the goods and chattels described in the plaintiff's writ they were acting under and by virtue of a warrant issued by the municipal court of the city of Augusta, and that in the execution of said warrant they were acting as deputy enforcement commissioners, and by virtue of the authority and power with which they were clothed as deputy enforcement commissioners legally appointed, and that the taking of said goods and chattels was by virtue of said warrant and the authority conferred upon them as said deputy enforcement commissioners."

Tried at the January term, 1907, of said superior court. At the conclusion of the evidence the case was "reported to the law court for its determination on the facts and law applicable thereto."

The case is stated in the opinion.

Argued before WHITEHOUSE, STROUT, SAVAGE, SPEAK, CORNISH, and KING, JJ.

A. M. Goddard, for plaintiff. Charles F. Johnson, for defendants.

SAVAGE, J. This is an action of trespass de bonis asportatis. The defendants admit the taking of the articles described, and seek to justify as deputy enforcement commissioners appointed under the provisions of chapter 92, p. 94, Pub. Laws 1905, relating to the better enforcement of the laws against the manufacture and sale of intoxicating liquors. They claim that they were acting under and by virtue of a warrant properly issued for the search and seizure of intoxicating liquors under the statutes of this state prohibiting the unlawful sale or keeping of such liquors, and were authorized to take and detain the articles as evidence. The case comes before this court on report.

The case shows that the defendants armed with a warrant for search and seizure issued by the judge of the municipal court for the city of Augusta, under the provisions of Rev. St. c. 29, § 49, searched the plaintiff's drug store in, Augusta, found and seized a large quantity of intoxicating liquors and the vessels in which they were contained, and took them away. At the same time they carried away the articles named in the plaintiff's writ. They arrested the plaintiff, and took him before the municipal court. One of them made return upon the warrant of the arrest and of the seizure of the liquors, but not of the taking of the other articles. These articles were taken by the defendants to be used as evidence against the plaintiff, and were carried to their storehouse. At the hearing on the search and seizure process, these articles were not brought before the court, but the defendants asked the judge of the court for directions as to the further retention and custody of these articles, which the judge declined to give, because no return of their taking had been made on the warrant. However, they retained them in their storehouse, and carried them before the grand jury at the next...