Ewings v. Walker

75 Mass. 95

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1857
• Status: Published

Opinion

Thomas, J.

The plea in abatement of the proceedings was sustained by the court of common pleas. The defendant had no longer any legal claim to the custody of the goods seized. The provisions of the St. of 1855, c. 215, § 28, in relation to a written order for the return of liquors, apply to cases where the proceedings are regular and valid, but in which upon the trial it has not been proved that the liquor was kept or deposited for sale contrary to law. Such order is not provided for where the proceedings are void. Upon the demand of the plaintiff the liquor and vessels should have been restored. Such demand and refusal were a conversion of the property by the defendant.

Such conversion would not be protected under the language of the thirty-eighth section of the statute, even if that section were susceptible of the construction given to it by the counsel of the defendant. If the statute left the owner remediless for property so converted, we should feel compelled to say it was a clear violation of the 11th article of the Declaration of Rights, which declares that every subject ought to find a certain remedy by having recourse to the laws for all injuries or wrongs which he may receive in his person, property or character. See Fisher v. McGirr, 1 Gray, 46-48. Judgment for the plaintiff.