Lewis v. McCarthy

D. Massachusetts

Lewis v. McCarthy

274 F. 496, 1921 U.S. Dist. LEXIS 1187

CourtDistrict Court, D. Massachusetts

DecidedJune 15, 1921

DocketNo. 1992

StatusPublished

Cited by6 cases

This text of 274 F. 496 (Lewis v. McCarthy) is published on Counsel Stack Legal Research, covering District Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lewis v. McCarthy, 274 F. 496, 1921 U.S. Dist. LEXIS 1187 (D. Mass. 1921).

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Opinion

MORTON, District Judge.

This is a petition for the return of an automobile, the property of the petitioner, which is held by the respondents as prohibition enforcement officers. They have moved to dismiss. The case stated in the petition is as follows: The petitioner is the owner of the automobile. On the occasion in question it was taken and used without her knowledge or consent by her chauffeur. He was arrested by a Boston police officer for operating it while under the influence of liquor, and a complaint for that offense is pending against him in the state court. While the petition does not so allege, I infer that there was liquor in the automobile, which was being illegally transported by the chauffeur, because the petition recites that he got liquor and was arraigned before a United States commissioner on the charge of illegal transportation. No proceedings have been instituted for the forfeiture of the automobile; but the case is still pending against the chauffeur for violation of the Volstead Act (41 Stát. 305).

[1,2] Under the circumstances, the court has no power, in summary proceedings such as these, to order the return of the automobile. Such power exists only over officers of the court, which the defendants are not. In re Chin K Shue (D. C.) 199 Fed. 282 (D. C. Mass.); U. S. v. Hee (D. C.) 219 Fed. 1019. Moreover, under Grant v. U. S., 254 U. S. 505, 41 Sup. Ct. 189, 65 L. Ed. — , if the chauffeur shall be cónvieted the automobile may be subjcet to forfeiture, even though the owner of it did not .participate in or know of the illegal use. Cf. The Little Charles, 1 Brock. 347, at 354, Fed. Cas. No. 15,612, an interesting case of forfeiture under an embargo act.

Petition dismissed.

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MORTON, District Judge.

This is a petition for the return of an automobile, the property of the petitioner, which is held by the respondents as prohibition enforcement officers. They have moved to dismiss. The case stated in the petition is as follows: The petitioner is the owner of the automobile. On the occasion in question it was taken and used without her knowledge or consent by her chauffeur. He was arrested by a Boston police officer for operating it while under the influence of liquor, and a complaint for that offense is pending against him in the state court. While the petition does not so allege, I infer that there was liquor in the automobile, which was being illegally transported by the chauffeur, because the petition recites that he got liquor and was arraigned before a United States commissioner on the charge of illegal transportation. No proceedings have been instituted for the forfeiture of the automobile; but the case is still pending against the chauffeur for violation of the Volstead Act (41 Stát. 305).

[1,2] Under the circumstances, the court has no power, in summary proceedings such as these, to order the return of the automobile. Such power exists only over officers of the court, which the defendants are not. In re Chin K Shue (D. C.) 199 Fed. 282 (D. C. Mass.); U. S. v. Hee (D. C.) 219 Fed. 1019. Moreover, under Grant v. U. S., 254 U. S. 505, 41 Sup. Ct. 189, 65 L. Ed. — , if the chauffeur shall be cónvieted the automobile may be subjcet to forfeiture, even though the owner of it did not .participate in or know of the illegal use. Cf. The Little Charles, 1 Brock. 347, at 354, Fed. Cas. No. 15,612, an interesting case of forfeiture under an embargo act.

Petition dismissed.

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Bluebook (online)

274 F. 496, 1921 U.S. Dist. LEXIS 1187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-mccarthy-mad-1921.

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