The People agt. Berberrich and Toynbee. of the purposes in the preceding section named, and not to be sold, disposed of, or given away, or to be drank on the premises, contrary to the provisions of this act; or, 2. To any person authorized to sell such liquor as in the last section provided. Every person authorized to sell as in the last section provided, shall keep a book of sales, in which he shall enter or cause to be entered every sale made by him, which entry shall contain the kind, quantity, price, purpose for which, name of the person to whom, and time when sold; which book shall, at all times during business hours, be open to public examination by any resident of the town or city. Every person so selling liquor shall file with the clerk of the town or city where he sells the same, between the first and fifteenth day of each month, a sworn copy of such sales, and of all purchases made by him, containing kind, quantity and price, with an affidavit that the same contains a correct account of the sales, and all the sales and purchases made by him during the previous month, according to his best knowledge, information and belief. But nothing in this act contained shall be construed to prevent the sale by legal process (in case of the insolvency of the authorized liquor seller) of any liquors held by him at the time of such insolvency, to any other liquor seller authorized to sell by this act, nor to prevent the legal representatives of any deceased person, (who, at the time of his decease, was an authorized liquor seller,) from selling any such liquors as may come to their possession as property of such deceased liquor seller, to any person authorized by this act to sell liquor. § 4. Every person who shall violate any provision of either of the preceding sections, shall, upon conviction, be adjudged guilty of a misdemeanor; and, except for failure to file his return or make his entries, as in the last section provided, shall forfeit all the liquor kept by him in violation of either of the preceding sections, and be punished as follows:-For any violation of section first, for the first offence, by a fine of fifty dollars; for the second offence, by a fine of one hundred dol- . ars and thirty days imprisonment; for the third, and every The People agt. Berberrich and Toynbee. subsequent offence, by a fine of not less than one hundred nor more than two hundred and fifty dollars, and by imprisonment not less than three nor more than six months. For any violation of section second or third, by a fine of one hundred dollars, and by imprisonment in the county jail not less than thirty days, and be ever thereafter disqualified for selling liquor within this state. Upon every conviction, the defendant shall also be required to pay all costs and fees, as provided in this act. In default of payment of any such fine, costs and fees, or any part thereof, the defendant shall be committed until the same are paid, not less than one day per dollar of the amount unpaid. If any person purchasing any liquor as in the last section provided, shall, at the time, make any false statement concerning the use to which such liquor is to be applied, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall forfeit and pay a fine of ten dollars and costs, as provided in this act, and stand committed until paid, not less than one day per dollar of the amount unpaid. § 5. Every justice of the peace, police justice, county judge, city judge, and in addition, in the city of New-York, the recorder, each justice of the marine court, and the justices of the district courts, and in all cities where there is a recorder's court, the recorder, shall have power to issue process, to hear and determine charges, and punish for all offences arising under any of the provisions of this act; and they are each hereby authorized and required to hold courts of special sessions for the trial of such offences, and under this act to do all other acts, and exercise the same authority that may be done or exercised by justices of the peace in criminal cases, and by courts of special sessions, as the same are now constituted; and the term magistrate, as used in this act, shall be deemed to refer to and include each officer named in this section. Such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence under this act, but shall proceed to trial as soon thereafter as the complainant can be notified; and for good cause shown, he may adjourn from time to time not exceeding twenty days. At the The People agt. Berberrich and Toynbee. time of joining issue, and not after, either party may demand trial by jury, in which case the magistrate shall issue a venire, and cause a jury to be summoned and impanneled, as in other criminal cases in courts of special sessions. The complainant may appear upon such trial upon behalf of the people, and prosecute the same with or without counsel. He may also prosecute the same in all the courts to which, as hereinafter provided, appeal may be taken by attorney, or he may apply to the district attorney, whose duty it shall be, upon such application, to appear and conduct said appeal from the judgment thereon. The same costs and disbursements shall be allowed against the defendant upon such appeal as are now allowed in civil actions in those courts to which appeal may be taken according to the provisions of this act. In all cases, if the district attorney shall appear and conduct the trial or appeal, or both, the costs, if any, shall go to him for his individual use, in other cases to the complainant; and in default of the payment of the whole or any part thereof, the defendant may be committed to the same extent as provided in the fourth section of this act. § 6. Whenever complaint on oath or affirmation shall be made in writing to any magistrate by one or more credible persons, resident of the county where the complaint is made, or of an adjoining county, that he or they have reason to believe, and do believe, that intoxicating liquor is kept or deposited in violation of any provision of section first of this act, whether the person so keeping or depositing the same is or is not known to the complainant, in some specified place or places within the city or town within which such complaint is made, or upon any water adjacent thereto, or within five hundred yards of the boundaries thereof, which complaint shall state the facts and circumstances upon which such belief is founded, or such facts and circumstances shall be stated upon oath or affirmation of some other person, it shall be the duty of such magistrate, if he is satisfied that there is probable cause for said belief, forthwith to issue a warrant, directed in the same manner as criminal processes a renow directed, commanding the officer, with proper The People agt. Berberrich and Toynbee. assistance, forthwith diligently to search such place or places, and to seize all intoxicating liquor found therein, which, from said complaint or other proof furnished, said magistrate shall be satisfied there is probable cause for believing is kept or deposited in violation of any provision of section first, together with the vessels in which the same is contained, and to store the same in some safe and convenient place, to be disposed of as hereinafter provided. If from such complaint or proof, or both, the person so keeping or depositing said liquor shall be made known, or ascertained to the satisfaction of said magistrate, he shall issue a separate warrant for the arrest of such person, to be dealt with according to the provisions of this act. But no warrant shall be issued under this act, to search any such dwelling-house as is described in section first of this act, unless the occupant thereof shall have been convicted, as hereinbefore provided, of having sold intoxicating liquor in his dwelling-house, or suffered it to be done, within one year next preceding the issuing thereof. Every warrant so issued shall particularly describe the place to be searched, and the things to be seized. § 7. Whenever any liquor shall be seized under any provision of this act, it shall be the duty of the officer by whom such seizure is made, except in cases where the owner thereof shall have been arrested, forthwith to give written notice to the owner or his agent, if known, of the seizure of such liquors, which, and the vessels containing the same, shall be described in such notice, as near as may be, and of the name of the magistrate by whom the warrant was issued; or in case of seizure under section twelfth, before whom the person arrested was carried, and the name and residence of such officer making such seizure, and the time of such seizure. Such notice shall be served by delivering it to the owner or his agent, personally, or by leaving the same at his last or usual place of residence, with a person of mature age residing on the premises. If the owner or his agent cannot be found, and his place of residence is not known to the officer, such notice shall be served by delivering the same to any person of mature age, residing, or being employed The People agt. Berberrich and Toynbee. in the place in which such liquor was contained, or, if none such can be found, by posting the same in a conspicuous place upon the outer door of such place, and copies of such notice, containing also a description of the place in which such liquor was found, shall forthwith be conspicuously posted in at least three public places within said city or town. Any person may, at any time before forfeiture, present to the magistrate named in such notice, an affidavit or affirmation in writing, stating that such liquor, at the time of such seizure, was actually owned by him, or by some other person named by him, for whom he is agent; that he or such person had not become possessed thereof for the purpose of preventing its forfeiture, and that the same had not been kept contrary to the provisions of this act, to the best of his knowledge and belief, and also specifying the purpose for which, the place where, under which exception of section first the same was kept, and the facts particularly showing it to be within the exception; and thereupon the same proceedings before said magistrate, shall in all respects be had, as are provided in section fifth. Upon the trial of such claim, the custom-house certificates of importation, and proofs of marks on the casks or packages, corresponding thereto, shall not be received as sufficient evidence that the liquors contained in said casks or packages are those actually imported therein. The magistrate shall keep minutes of the proceedings, testimony and judgment upon all trials under this or section fifth, which shall be subscribed by him. He shall have power to issue process to compel the attendance of witnesses, and to punish for non-attendance as witnesses or jurors, in the same manner as in civil actions before justices of the peace. § 8. Either the complainant or other person prosecuting in behalf of the people, or defendant, may appeal to the supreme court at general term, from any judgment of any magistrate rendered under any provision of this act, by serving upon such magistrate, and the complainant or such other person, or the defendant, as the case may be, written notice thereof, specifying the grounds of appeal, within ten days after the rendering of such judgment, the service to be made as now provided in |