Town of Plainfield v. Batchelder

The opinion of the court was delivered by Pedfield, J. This case is replevin for two barrels of whisky. In Juno, 1869, this liquor was in the possession of the defendant as an officer of the law, under a proper warrant of seizure ; and while thus in his possession it was taken from him by this writ of replevin. The forty-first section of chapter ninety-four provides that the proceedings under the warrant for seizure shall not be delayed by the replevin, but “ such seizure proceedings shall proceed to final judgment as if no replevin had been commenced.” And that case proceeded until the March term of the county court, 1870, when final judgment was rendered- — -that said liquor bo forfeited to the use of the town of Plainfield; and the same was ordered to be delivered to the agent of said town, appointed by the county commissioner. I. The plea of “ not guilty,” under our statute, is the “ general issue,” and puts in issue every material fact: as well the property in the liquors as the taking and detention. § 14, ch. 35. II. The record of the proceedings for forfeiture was the proper, and only legitimate, evidence of that adjudication. III. The parol evidence — to show the identity of the property —was properly admitted. IY. The judgment for the return of the property was regular, and, we think, in accordance with the imperative requirement of the statute. The fortieth section, chapter ninety-four, (Gen. Stats.,) requires the replevying ’officer to hold the liquor until the [13] final determination of tlie replevin suit; “ whereupon the same shall be delivered to the plaintiff in the replevin if judgment be for him ; but otherwise it shall be delivered to the defendant in the replevin, or to such officer as shall have authority to hold or destroy the same under the original seizure proceedings.” It is claimed that intoxicating liquor owned by towns is not liable to forfeiture under the provisions of the twenty-third section, chapter ninety-four, (Gen. Stats.) But it is only intoxicating liquor “ purchased for sale by the agent of such town for medicinal, chemical and mechanical purposes only,” which is to be delivered to “ such agent”; and “ such agent” is the person duly appointed by the county commissioner under this statute. Intoxicating liquor held by the officers of the town for purposes in contravention of the provisions of the statute, is as liable to seizure and forfeiture as that held by other persons for like purposes ; and the fact has been adjudicated that this liquor was held for unlawful use. The agent for selling liquor under the statute is not an instrument of the town, nor appointed by the town. He receives his appointment from another source, and is an officer of the law. Wo find no error, and the judgment of the county court is affirmed.