New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-22

very familiar. ,-....,
from conclusive evidence in this, tina, i may be 10
hufed By aing testimony, but which Is suii-
r;eut uuii thus rebutted. I" Prescriptions of law are
40 general snd 20 nearly universal that The Law IL
self without the aid of Jury infers the one fact
from the proved existence Of another in the absence
Of ali opposing e' denoe. In this mode the law de-
fnss the nature AMI amount Of the evidence when
ait deems sufficient 10 establish prma facie case aud
10 throw the burden of proof on the other party,
and II DO opposing evidence is offered the Jury are
bound TO find in favor OF the presumI ion" l
GrcfnL, %.
fr he intention of the party from his acton as from
Ire acton Of selling 10 infer that he intended unlaw
fully 10 sell; from The act Of delivery TO infer that he
intended to cell. This Is not made conclusive infer
epce admitting of dofese for that would be act
Of cruelty and want Of foresight nowhere Imputabe 70
this statute; il simply draws the Inference OF motive
from the act and leaves the door wide open for ex
planation. Az in capital cases where nun strikes
/ tlov at a vital part with deadly weapon 50 that Il Is
almost inevitable that death must follow. II has ever
teen a Just Inference that there was an intention 70
kill or in the language Of this statute the giving the
blow under such circumstances Is prima iacie evil
'deuce of an intention 10 Kill, but no; conclusive,
because the party, Who knows his own motive and
who rs most familiar with oil the features OF the trans
action i Permitted 10 prove them and Justify himself.
We have many similar cases on our statute book.
THUS the Isolvency Of moneyed corporation shall be
deemed fraudulent uu.ess uIon Inyesigg ilou Il shau
upTesr otherwise snd II IL incumbent on the Grec-
'tors AID stockholders Of every such insoyent copo-
ration 10 repe hv proof the presumption OF fraud.
/ I Rer. 81, 100 "a. Under the law against selling
lottery tickets il Is not necessary 20 prove that there
was lottery, but the sale of ticket or any lnstfu-
ment Iurporng 70 lie ticket is conclusive evidence
that srch ticket was signed and ssuel according
the Iurport thereof ReU. -. Cts, 50. The GER
tifcute Of a Commissioner of Deeds 70 the acknowi-
Cdcmont Of execution i pma face evidence OF exc
/ cution; hut rot conclusive her s. 759 II. In
/ actions on sealed Instruments a seal IL presumptive
evidence of a sufficient consideration which may be
/ rebutied. Rer. 81. zC6, \ -.
/ But il is unnecessary tomutply instances. Enough
have been given show that the provision 20 prma
&C evidence usual and lawful one 1t Is usual
AID lawful TO require IN pleading defense 70 be spe
cally set up and 10 be verified by affidavit Under our
present code Of practice that always required when
the adverse party demands it.
Lioeases Abolshed.
O. Another Of the enumerated remedies is the prohibit
ton against granting any license 10 sci. liquor.
Heretofore Commissioners of Excise were permitted
to grant ccrses to sell liquor, and the law forbade the
sale in certain cases without license. Now this law
forbds the granting of any license after the took
effect that when the licenses granted prior to that
date expire ihc enactment that will remain in force
will be the provisions of the statutes that 10 one shall
sell without iiconse.
Those provisions are not repealed either expressy
by Necessary implication, for there nothing IN the
later statute al al Inconsistent with tho enactment Of
the former and therefore By well established rulei Of
construction the former statute remains in force
lam entirely at lo-s TO conceive the force of the
argument that because the granting Of censo is pro-
libited therefore every one con cell At pleasure.
Tie statutes relative 10 tie City of New York enact
ihst every one who shall sell by retail in the City any
w.le strong or sphiuous liquor, to be drunk N his
house, Clubhouse, yard, garden or premises, without
being licensed according 10 law shall forfeit S25 aad
be punishable by fine and imprisonment as for mis-
doIneanor Session Lars o. 1924, On. 2l5. LGws Of
len, Oh. $50. Laics 81 1925, On. lJ6.
Tie relating TO tie State at large enact that
"Whoeyer shall eel any strong spiriiuous liquor
ttora vrfUC in "a Y
lat time without having license therefor granted
as herein coied shall forfeit $50.
Whoever shall sell any strong or spiriiu - liquors
or wines TO be drunk in hfs house or she a in any
out. house, yard garden apIeraining Siereto, or
sha suffer any such liquors wines sold by him,
under his direction or authority, to be drunk IN his
house OF shop, or in any Clubhouse yard or garden
apperoiLIng thereto, without having obtained IL
ceIse therefor as tavem-keeper shall forfeit $685..
4. Roc. 81. $50. 0l5. $40.
Now, repeat these provisions unaffected by
tie recent law. Under the old law If a man was re-
fused license by tie Commissioners of Excise he
could not sell because he had no license and The Sec
tiors have now extracted were the cause why he
could not cell. But now, for another reason he can
not have license, and the same sections yet operate
to say he shall not cell
The several statutes operating on the same subject
being in pan mafed, are to be read together
law and they say no shall sell liquor without
license and man shall have license. IL ia only by
common conception of language that these
statutes be read 10 cay the very of
tis: that may sell who has no license; yet
after all II il a very simple process; III Is only
striking out the word mott il only changing
nea alive into atiiTmatveit is only making black
"wlie-it is barely saying that man may instead of
"sGyiDg he may not commit crime"
cannot believe that our Courts are yet pre-
pared 10 construe plain uumistakahle language thus
widely from its plain import, and therefore concne
that after the expiration of his present IL
sell liquor by retail without mourning the penal
ties prefcrbed by the excise law against those who
sell without license.
SLING Declared a Nuisance.
10. The next remedy which shall consider ia that
which declares all liquor kept in violation OF the act
10 he public nuisance, thus giving TO individuals and
perhaps TO corr oraions tie power 10 remove IT, in
the case Of a float in tie canal basin AZ Albany,
UenS. 81; or a house so used 10 be injurious to
health, Is Uend, 3g7; the Of ferOciOus dog,
4 Car, s'l; or a mad dog, l3 J. T., 3l2; and the
further power by Indictment by bill Il equity or by
writ Of nuisance to ca use it TO be removed all Of which
ere powers long known to and recognized by our Law.
Search, Secure and Destruction.
II. There is yet ore more remedy means of en-
forcing the prohibition Of the statute which remains 10
BE- considered on which have observed there s great
diversity Of opinion, but on which have been able to
arrive at as satisfactory a conclusion as the other
points already considered. allude to the enacmens
which allow OF a scar a for the prohibited liquor and
which provide for rs seizure forfeiture and dee trucon.
They ere imI oriont provisions and having been
deemed by the Legislature Egteral 10 the full enforce
INC nj OF the law, IL becomes of much moment ID nq lire
how far it was within the province Of the Legislature
10 enact them.
We aIe all sensliivoy and naturally alive to the i'm
pou6nce of preserving the sanctity Of our private
dwell nes, and recolocing how IN the history OF the
uaat had been invaded under the preicnse Of search
We fnd q provision 8gnnst il in one Of the 6mend-
mems 10 our national Constitution, and also IN
bill Of rights and recognizing liquors property,
hnd in State Constitution provision securing to
every person The protection Of property as well 20 lie
49, arl.r Erx-c ra.I tn tho