Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1904-03-14
FROM LAW COURT.
important Rescripts Handed
Down by Full Bench.
Express Companies Held to Be Agents
in Liquor Case.
New Trial Ordered in a kennebec
County Action.

Bangor, Me-, March ia rescrpt of
more or less interest in respect to the
status of common carriers in the trans
portatiOn of Intoxicating liquors from
other states into Maine where said Ii
quOrs are not intended for illegal keep
ing or SALE has been handed down from
the law court, the case coming from
oxford county and the rescript being
drawn by Justice Whitehouse.
In it, it is held that a delivery to an
express company in Kentucky of 4
package of intoxicating liquors is a de-
livery 10 the purchaser and the title
passes to him at that moment and if
MT intended for unlawful sale are not
liable to seizure while in the custody of
the express company.
The opinion of the court in the case
of State vs.. Intoxicating Liquors. John
II. bishop, claimant, in which the court
ordered judgment for the claimant and
ten return of the liquors, is as follows:
l. Under the settled law of this State,
upon an order for the shipment of goods
by express G. o. D. the carrier desig-
mated in the order acts as agent of the
purchaser and in the absence of any ev-
idence to the contrary. a delivery to the
purchaser and title to the goods will
pass to the purchaser upon delivery to
the carrier
,. intoxicating liquors delivered to
an express company in Kentucky and
| transported to Maine in pursuance of
| such an order become the property of
the pnrrbDc1r lIrpp Ialivary RI tl,a
rier in Kentucky, and if not intended
for unlawful sale by the claimant in
this State are not liable to seizure while
Fin the possession of the express COM
tnany, and if so seized the claimant is
| entitled to an order for their restora-
itiOn.
The judgment of the court was sus-
| tanned in the Knox county case of State
VS.. John +. Dowdeli. appellant. ia
| which counsel for the defence raised
! the point of the error in the revision
of the statutes which was the cause of
considerable comment. last summer.
and subsequently action by the special
session of the Legislature in September
| in regard to the search and seizure of
intoxicating liquors.
Although n certain section of the
| statute was nullified for a time the
court found that there was still left
plenty of law on the case to hold the
| position of the State good. The de-
| fcndant's exceptions We're overruled
and the entry of judgment for the State
! made. The opinion of the court was:
Section SIS of Chapter q. r. s.. 1859.
! prohibiting the unla wful keeping of
| intoxicating liquors, was repealed or
| I, f,,k 4
it appearing in Section l of Chapter
| 10. of the laws of 1903, and although
| this error was corrected in the general
revision of teh statutes. Section Al.
Chapter 20, r. s.. 1903. a search and
| seizure process commenced in August.
1869. was not affected by the provision
| Of statute subsequently, enacted. But
| inasmuch as the original prohibition in
Section 80 still existed that mo person
shall at any time sell any intoxicating
LIQUOR"
That Section 40. upon which the
lsearch and seizure process was founded
,affords in itself n complete basis for
II the prosecution. 1t describes the oifense
and specifies the penalty: and that if
any more direct ana explicit prohibition
of the unlawful keeping of intoxicating
liquors can possibly be required than is
contained in Section 40, it is found in
Art. NNVI of the constitution of the
state which declares that the " sale
and keeping of Intoxicating liquors are
and shall be forever prohibited"
Another case of State vs.. Melvin
Grant. appellant also from Knox and
involving the same facts was decided
by the court in the same manner.
l l,.r,- 1N.-T 1I- ;T,
lWhtehouse.
| In the case of Thayer VS.. Usher. COM
ing from York county. the court held
that before the silence of party can
be taken as an admission Of what is
said in his presence. it must appear
Thar the fact admitted. or the inference
drawn from his silence, would be ma
terial to the issue.
The opinion of Justice Whitehouse is
as follows:
In an action against the defendant
for knowingly aiding her son, Alvah G..
Usher, in making Il fraudulent trans
fer of his property to her for the pur-
pose of securing it from creditors, it
appears that the lumber which formed
} part OF the property alleged to have
been fraudulently transferred was cut
on the defendants land. that Alvah G.
!, Usher conducted the numbering opera :
tion and sold Il portion of the lumber:
/ but whether in so doing he was acting
as the agent of his mother. or whether
: he had contracted with her to cut the
lumber upon shares, and sold his por-
tion of it. the evidence failed to show.
On report of the evidence to this
= court.
Held. that these facts have no neces-
sary tendency to prove that Alvah =.
t Usher was the owner Of the property
. in question.
l 1t further appears that in a suit
$ brought by the plaintiff against this
defendant in the municipal court of
: Biddeford. in which he sought to hold
her directly responsible for the amount
\ Of his claim. Alvah c. Usher appeared
as witness and testified that he was
=, fro o,.,ar IF tho l,lr1ber in ouo.t;o,,