The defence is based upon an assumed construction of the act for the suppression of intemperance, of January 22d, 1855. Statute 1855, 58. This act provides that the keeping of intoxicating liquor, with intent oil the part of. the owner, to sell the same within this state, contrary to the provisions of this act, is prohibited, and the intoxicating liquor so kept, is declared a nuisance. But under the same act, such liquors might be sold by authorized agents, for medicinal, mechanical, and sacramental purposes, and they might be manufactured in the state, for the purpose of being sold according to the provisions of the act. Section seven provides that upon the trial of an indictment or information under the act, the finding the liquor named in the proceeding, in the possession of the accused, in any place, except in his private dwelling-house, or its dependencies, is taken as presumptive evidence that it is kept or held for sale, contrary to the provisions of the act.
The assignment of errors next requires attention. The second is, that the court erred in finding the value of the brandy at $15.50; the third, in finding it of any value; the fourth, in finding that Bowen and King were not partners at the time defendant alleges that he kept, horses for them. (This relates to the set-off.) These assignments refer to the finding of the facts by the court. This is not within our province to examine, in the present cause. When there is a motion for a new trial, upon some ground which brings up the evidence, then this court looks into that evidence upon such motion. But it cannot review the finding of the court or of a jury, simply as a verdict, and on errors assigned thereon.
The other errors assigned, are: 1. In holding that plaintiffs could maintain the action for the brandy, that being declared a nuisance by statute; 2. In holding that the owning brandy in the state of Iowa by the plaintiffs, as they did, *433was a lawful ownership ; and that they could maintain an action for the negligent transportation of the same. These matters come within the province of this court to examine, under the actual state of the pleadings. The defendant is sued as a common carrier, for so negligently executing his undertaking to transport the brandy, that the greater part was in some manner wasted, consumed, or lost. No question, is made on either side, upon,the minutiae of the pleadings. The answer of the defendant amounts to a denial of the petition — to the general issue only; and the court finds the facts to be, that defendant did undertake to carry; that the greater part of the property was lost; and that the part so lost or wasted was worth $15.50, and finds a verdict for that amount for the plaintiff. The question then recurs, and the defendant’s position assumes, that the bare fact of owning intoxicating liquor in the state of Iowa, in a eonrse of transportation, as this was, was unlawful; that the brandy was a nuisance, and that any one finding it, might abate the nuisance, by destroying the brandy. It is possible, under the above act, to own and to possess intoxicating liquor lawfully, in this state. The plaintiffs may have caused it to be brought from without the state, or may have bought it of an authorized agent in Burlington, where the carrier -received it. They may have intended it for their own cellars, which they might lawfully do, or for medicinal or mechanical purposes. This being so, are tbe plaintiffs bound, as .against the defendant, to show, the lawfulness of their ownership; and had he the right to presume everything against such lawfulness, or mus the show them to be in the wrong? The presumptions allowed by tbe statute, are somewhat stringent Section seven, before recited, makes a presumption against the owner having it in his possession, in .any place except Ms private dwelling-house. It has not been decided whether his possession by a bailee, like the present carrier, would bring him within the law; but it is probable that such presumption could not arise while the goods were in ■transitu, nor until they had arrived at astate of rest, for until *434then, it could not be known that they would be in a position to wbicb tbe statute presumption would attach.
Then, it is to be observed, that the above presumption, under the statute, is made upon the trial of an indictment or information, and tbe statute goes no farther. And it may be doubted, whether the defendant has a right to make that presumption in pais ; and it becomes a question, whether this is such a nuisance as can be abated by any one, at his election. ^ One thing, at least, seems manifest, as the plaintiffs could lawfully possess brandy in this state, if the defendant has undertaken to abate it as a nuisance, the burden is on him to show that it existed under such circumstances as to constitute it a nuisance. He must plead and show the requisite facts. This he has not done. His answer really amounts only to a denial of the undertaking to carry, but he has thrown into it some allegations that the contract to carry was void; yet he has shown no fact or circumstance making it void under the law.
The court found that the set-off was against one only of the plaintiffs, and thereupon held that it could not be pleaded against the two. We would take this occasion to make a remark upon the manner of pleading in set-off. Counsel will bear in mind, that a set-off is not a defence to an action; and, therefore, it is not to be confounded with the defence, but should be pleaded separately.
There is no error in the rendition of the judgment by the District Court, and the same is affirmed.