New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-19

a. ,;obts Of properly are more scrupulousy guarded
II On by tie former, 80 that pipe OF brandy rom
France. or case Of gin from Canada, imported With
ont The Observance OF the prescribed FORMS whereby
Al most trAing loss Of revenue would be occasoned,
would be subject TO conhscaiiOn by process OF
claw in he national courts more stringen. than 1t
would be had it been lawfully introduced and then
applied 10 the niscic purposes forbidden by the
aci in question In the courts Of the State.
In fhe former case 10 oath would be required 20 GU
thorze iis seizure which might be made by any officer
of fbC customs Oh reasonable suspicion arsing from
circumstances within his knowledge, or conmnn-
Gated to him orally by infonneT whose name need
rot be disclosed until after condemnation and sale and
tlen Only for The purpose of claiming his share oil the
proceeds The seizure in such case may be made at
any time and in any place. The owner, whether
known or not il entitled to 40 particular attention, the
notice of II DAYS being addressed generally 10 all per-
sons. II no claimant appear condemnation follows
of euls g. without any other evidence OF guilt except
the presumption arising from such non-appearance.
Should tny one appear az claimant, ne l. required 10
ssyerfy hi, claim on sole mn oath affirmation. and
give security for costs before he can be admitted 70
conts 4 the alleged forfeiture His plea or answer Is
usually simple denial Of the truth of the accusations
and with rcgGrd tothe proof on the trial, Is by the
act Of 1893, already mentioned, expressly oIuaihcu
"that if the properly be claimed by any person, III
every such case the anus proJ0Edi shall lie on the
" Claimant" If probable cause is shown for such
"prosccution, to be jucged OF BY the Court before
" v HON the prosecution 10 held. The phrase prop
add il held TO mean less than what is usually dcnomi-
mated priaa facie evidence, and impors nothing more
than "circumstances which warrant suspicion. =
Cond. Kep. 52l.
proceedings prescribed by the Prohibiory oct dlfer
from those under the act of Congress, and II IA ths:
the New-Yok act does not while the act OF 1919 does
require in lie notice Of prosecution the designation OF
n raricular day and place of trial AT first on meet
inc with this objection in Mr. Hills argument, it ap
reared 10 me 10 he somewhat Formidable for the
owner Of property thus proceeded against u certainly
entitled TO notice, either actual or constructive when
and wi ere he can be heard in defense But finding on
recurring 10 tie act that n warrant of arrest can be
issued only Ly n agstratc who resides in the town
where or The immediate vicinity of which the liquor
complained OF is found that the name OF the nngis-
traic must be inserted in tie notice, and that
the rieht. is expressly given TO the owner " az
ann time before the expiration of thirty days
from the service of the notice to interposo
claim before the magistrate named IN the no.
tice em Of opinion that tie act il sufficient in this
respect The day in court given to the owner is
any one of the thirty aforementioned, and the place OF
trial is before the magistrate whose place OF business
nc may reasonably be presumed to know or II not, to
be able easily 10 ascertain There is no danger OF all
fiat this Arrangement will lead TO Injustice and it is
ouile as likely 10 be attended with superior advantage
as 10 be preudcia TO those for whose benefit It was
devised Ii is tIue suggested, that the magistrate
NAV happen to be absent sick when the owner
comes TO Int in his claim; but he might the pre-
ecLod day if one had been fixed beforehand; aud If
tie owner, from choice or Otherwise, should defer ms
nppe Granoe until the last Of thirty days, the magistrate
wnud he bound to recel, &c his claim, and II necessary
To provide for TRIAL by th3 exercise OF the power OF
adfourI ineni with which the act invests fin.
Leaving ii TO others if they sha eofii to pursue the
COMPARISON and run out the parallel between the two
schemes Of procedure, VIII here notice an objection
made by Mr. Hill 10 the Consituionallty OF another
urovison of the act contained in the 10Th section aud
bv which in al aciisn by the owner to recover the
value or possession of the liquor taken, detained or IN
iured the burden or proof Il cast upon the palHl..
This provision considering the peculiar nature of the
remedies provided by tie act, does not appear to me
TO be by any so unreasonable as 1t is represent
cd; but whether II II not the RESTRICTION II con-
tas is very analogous TO contained IN another act
of Congress passed oath February, sO7, by which it is
enacted that when in prosecution founded on seiz
IRE tie Judgment shall be III favor OF the claimant,
If il shall appear TO the Court that there was reason
able cause of seizure, the said 'ourt shai cause
Iro er cert icate entry 10 be made thereof and
IN such case the claimant claimants shall not be
entitled to costs shall the person who made the
seizure or the prosecutor be liable to suit, action or
iudn mcut on account of such seizure or proSecu-
"tion II ID true the NewioIk statute does not re-
oure ceriifca e from the Court of reasonable cause
OF seizure 10 exempt the officer or complainant from
liability hut II does what fully equivalent by requT
inc a The outset that the facts and circuns ances On
wi cl tLe COMPLAINT isiounded shall be stated oath,
and that warrant shall issue only when the magls
ua,e is satisfied that there probable cause for be-
hoying that The act has been violated Inc Issuing Oh
upon this Ioiut not less than the granting of cerh-
cate TO that effect. II - further objected that as
condition of being admitted TO contest the alleged Tor
feurc in cases of seizure the act requires the claimant
not only 10 make oath to hls ownorhp but 70 facts
which if true would oxonera,e him. This requirement
cGn work 10 injustice 10 Honest men, ana II IL Is nNcy
10 rroye inconvenicnt 10 knayes i l. counenanced as
AIR Hin ia well aware by abundance of analogles III
judicial proceedings both at law and IN equity; and as
TO the structure thu the claimant Is TO derive no benefit
from his oath except the privilege OF contes aon, the
act does not so declare, and the practical result VIII
doubles be otherwise to the full extent mat IL ought
to be.
II is argued also that no sufficient provision is made
for trial BIZ jury to determine the question Of forfeit
ure when the owner has not been arrested but appears
voluntarily and prefers claim TO Tue property Seized
In such case the proceeding II strictly an rem-agGnst
the thinCas in OF prosecutions 10 enforce for
fixture for smuggling; and concedng for argunents
sake the necessity of securing the privilege OF Jury
TRIAL think Mr.. Hill has failed 10 show that II has not
been given II was clearly the intention of the Legs
auro TO give it, and that intention appears to me 10
have been efectuated by the reference contained in
the seventh section to section nve winch expressly
and as Mr.. Hill seems TO conCede sufficiently secures
tits ight TO each party, when az viii 1t is presumed
generally be the case the owner is brought compulso-
rily before the magistrate. The provisions tor TINS
purpose in the fifth section are expressly adopted by
the seventh section with respect TO cases of voluntary
nppearance and claim; and discern no practical
difficulty in applying these provisions in the one case
more than in the other. Tie original complaint may
with equal propriey be regarded as the accusation in
tie case of voluntary that of a compulsory ap-
pearanee the issue being Joined In the latter instance
nv general denial of the truth OF the charge and IN
the former BY the special plea or answer of the
claimant In the former well as in the latter Il the
complainant is not present he must "bc notified, and
the parties having sevorely exercised their ng9t oil
election as 10 trial by Jury, the trial Is TO proceed ac-
cordingly. as directed in the fifth section.
Undoubtedly some degree OF intelligence and sound
indictment are required in settling the details OF pro
ceture under this act usually ard almost unayoida-
bly, happens in regard TO newly Instituted proceedings