Voetsch v. Phelps

112 Mass. 407

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1873
• Status: Published

Opinion

Ames, J.

It appears from the papers filed in the case that the defendant, as a constable of the town of Montague, made the seizure July 23, 1872, by virtue of a warrant of that date, issued by and returnable before a trial justice within and for the county of Franklin. Upon this warrant the defendant made return on the same day that he had searched the place designated and had seized the liquors described in the warrant, and had conveyed them to a place of safety. No informality or defect, so far, has been pointed out either in the complaint or warrant, or in the proceedings under it. From the time of the seizure until August 1,1872, which is the date of the plaintiff’s writ, the defendant does not appear to have done anything with the property, except to continue to keep it, according to the command in his precept, to await the final action and decision of the court.

The only irregularity complained of in the proceedings after the seizure and up to the date of tne plaintiff’s writ was the neglect of the magistrate to issue a notice to the keeper of the liquor or any other person interested therein, in compliance with the statute. But this omission, which was not the fault of the officer, and may have been without his knowledge, cannot convert him into a wrongdoer in what he had already done, or transform the lawful service of process into a trespass.

Exceptions sustained.