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party complaining should be present and assisting, because he will be able to identify the property that he has lost.1

SECTION VIII

WARRANT, HOW EXECUTED.

In executing a search warrant, the duty of the officer, and those acting in aid of him in executing a search warrant, is well and legally discharged if upon making the search required, and finding goods corresponding in description with those directed to be searched for, he seizes such goods and brings them with the person, whose premises he is directed to search, before a magistrate for further proceedings. The officer is not made the judge in the last resort of the identity of the goods with those stolen.2 As the warrant should distinctly specify the goods to be seized, the officer ought not to take any goods but those specified; thus, where a warrant was granted expressly to seize stolen sugar, and the officer seized tea, he was held to have exceeded his authority, and to be liable to the party aggrieved for a trespass.3 So, also, where the constable having a warrant to search for specific articles alleged to have been stolen, found and took away those and certain others supposed to be also stolen, but not mentioned in the warrant, and not likely to be of use in substantiating the charge of stealing the goods that were specified, it was held that the constable was a trespasser. In this case, however, the court remarked: "If these articles had been likely to furnish evidence of the identity of the articles stolen, and mentioned in the warrant, there might have been reasonable ground for seizing them, although not specified in the warrant."

In executing a warrant of this description, doors may be broken open, but as in other cases, there should be a previous notification of the business, accompanied by a demand to enter on the one hand, and a refusal on the other, before proceeding to such mode of execution.5

1 2 Hale, 150; 11 State Tr., 321.

2 Stone v. Dana, 5 Metc., 98.

2 Bos. & Pul., 158; 3 Esp. R., 95.

9 Dow. & R., 224; 6 Barn. & Cress., 332.

Banks v. Farwell, 21 Pick., 156; Fost., 320; 2 Hale, 193; 1 Russ. Cr. L., 519; 1 N. & Walsh, 205; Bell v. Clapp, 10 John., 263.

If it shall appear upon the examination before the magistrate, that the property is stolen property, upon satisfactory proof of the title, of any owner thereof, it shall be delivered to him on his paying the reasonable and necessary expenses incurred in the preservation of such property, to be certified by such magistrate.1 But if on bringing the goods and the person in whose custody they were found, before the magistrate, it appears that the goods were not stolen, they are to be restored to the possessor.2

All the checks which the English law, and which even the constitution of the United States have imposed upon the operation of these search warrants, and with the manifestation of a strong jealousy of the abuses incident to them, would scarcely have been thought of, or have been deemed necessary, if the warrant did not communicate the power of opening the outer door of a house. In a leading English case, it was asserted by the counsel for the defendant, that on a search warrant to search for stolen goods, the officer might break open doors, &c., and this power was not questioned by the other side, nor by Lord CAMDEN, in the able and elaborate view which he took of the legality and effect of these warrants.3

It is said to be questionable whether a search warrant can be executed, or afford protection to an officer, where it shows upon its face that the party who has the property alleged to be stolen is charged with the larceny of it, and no warrant for his arrest accompanies or is incorporated in the search warrant.4

A search warrant legally and regularly issued, and duly exe-. cuted in the day time, is a protection as well to the party on whose oath it issued, as to the officer who executed it, against an action of trespass."

SECTION IX.

SEARCH WARRANTS FOR MINERAL WATER BOTTLES.

If the owner or agent of any owner of mineral water bottles shall make oath or affirmation before any magistrate, that he

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2

• Entich v. Carrington, 2 Wils., 275; 11 St. Tr., 313; Bell v. Clapp, 10 John., 263. • Peo. v. Holcomb, 3 Park. 667.

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has reason to believe, and does believe, that any of his bottles, stamped and registered as provided by law, are being unlawfully used by any person or persons selling or manufacturing mineral water or other beverages; or that any junk dealer or vender of bottles shall have any of such bottles secreted upon his premises, or in any other place, then the said magistrate shall thereupon proceed to obtain the same, under the existing provisions of law in relation to search warrants, which are declared to fully relate to the said purposes; and the magistrate shall have power in a summary way, to bring or cause to be brought before him, the person in whose possession said bottles may have been found, to examine into the circumstances of his said possession; and if he shall find, on summary examination, that said person has disobeyed or violated any of the provisions of the act, in relation to such matters, he shall proceed to impose the fine, and if the same be not paid, to commit said person to prison for a term not to exceed fifteen days.1

SECTION X.

SEARCHING PRISONERS, ETC., FOR PROPERTY.

Any magistrate who shall commit any person charged with any offence to prison, or by whom any vagrant or disorderly person shall be committed, may cause such person to be searched for the purpose of discovering any property he may have, and if any property be found, the same may be taken and applied to the support of such person while in confinement."

SECTION XI.

OF THE DISPOSITION MADE OF STOLEN PROPERTY.

When property alleged to have been stolen shall come into the possession of any constable, marshal, sheriff or other person authorized to perform the duties of any such officer, he shall hold the same subject to the order of the officers hereafter authorized to direct the disposition thereof. Upon receiving satisfactory proof of the title of any owner of such property, the magis

Laws 1860, ch. 117, § 2, p. 194.

'R. S., 746, § 36.

trate who shall take the examination of the person accused of stealing such property, may order the same to be delivered to such owner on his paying the reasonable and necessary expenses incurred in the preservation of such property, to be certified by such magistrate, which order shall entitle such owner to demand and receive such property.

If stolen property shall come into the. custody of any justice of the peace or other magistrate, upon satisfactory proof of the title of any owner thereof, it shall be delivered to him on his paying the reasonable and necessary expenses incurred in the preservation of such property, to be certified by such magistrate. If stolen property shall not have been delivered to the owner thereof, the court before which a conviction shall be had, for the stealing of such property, may, upon proof of the ownership of any person, order the same to be restored to him. If stolen property shall not be claimed by the owner thereof before the expiration of six months from the time any person shall have been convicted of stealing such property, the magistrate, sheriff, constable or other officer or person having the same in his custody, shall deliver the same to the county superintendents of the poor, on being paid the reasonable and necessary expenses incurred in the preservation thereof, to be appropriated to the use of the poor of such county.'

In New York city and Brooklyn there are special provisions in regard to the keeping and disposition to be made of property taken from persons charged with the commission of crime.2

SECTION XII.

SEARCH WARRANTS FOR PROPERTY PAWNED.

Search warrants may be also issued for property embezzled or taken without the consent of the owner, and which he suspects or believes to have been pledged to any pawnbroker. The constable to whom any such warrant shall have been delivered shall have the same power to execute the same, and shall proceed in the same manner as in the case of a search warrant issued upon a charge of larceny. Upon any property so seized, by virtue of

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such warrant being brought before the magistrate who issued the same, he shall cause such property to be delivered to the person so claiming to be the owner thereof, on whose application the warrant was issued, on his executing a bond as hereinafter directed, and if such bond be not executed within twenty-four hours, such justice shall cause the said property to be delivered to the person from whose possession it was taken. The bond above mentioned shall be in a penal sum equal to double the value of the property, with such surety as the justice shall approve, to the person from whose possession the property was taken, with a condition that the person so claiming the same, will on demand, pay all damages that shall be recovered against him in any suit to be brought within thirty days from the date of such bond, by the pawnbroker from whose possession the said property was taken. This search warrant can be issued by any justice of the peace, police justice or assistant justice. In order to authorize the issuing of the warrant, there should be the oath of some person that property belonging to him has been embezzled or taken without his consent, and that he has reason to believe, and does suspect and believe, that such property has been pledged with some pawnbroker. The justice should also be satisfied of the correctness of such suspicions. The warrant is to be directed to any constable of the city or place, commanding him to search for the property so alleged to have been embezzled or taken, and to seize and bring the same before such justice.1

SECTION XIII.

SEARCH WARRANTS FOR CANAL PROPERTY.

Search warrants can also be issued in certain cases to compel the delivery of books, papers, matters and things belonging to the canals of this State.2

1 R. S., 711, §§ 9 to 13.

1 R. S., 250, § 344.

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