FROM GRAFTON CIRCUIT COURT. 1. The entry upon the docket of the name of the complainant seems a very proper thing to be done. It cannot in any way affect the disposition to be made of the case. It does not prejudice the rights *Page 138 of the claimant, nor does it impose any new burdens upon him in defence of his rights. It does not change the proceedings necessary to establish the forfeiture of these liquors. Inasmuch as the statute allows any person to prosecute a complaint of this character, so far from there being any objection to entering the name of the complainant upon the docket, it would seem to be quite desirable, both for the convenience of the court and the parties, that it should be done.
2. In State v. Barrels of Liquor, 47 N.H. 369, this class of actions was held to be a proceeding in rem; issues are to be tried by the rules applied to the trial of civil causes; claimants may appear and plead by attorney; claims and pleadings may be amended, issues joined, and verdicts rendered, as in other civil causes; colts are allowed the prevailing parties, and executions issued for their recovery. Gen. Stats., ch. 249, sec. 8. When, therefore, the libel is commenced and prosecuted by a complainant other than the state, it is proper and right that such complainant should be permitted to do so without interference from the prosecuting officers of the government. As the complainant is subjected to costs in case he does not prevail, he ought to be allowed to employ such counsel as he is willing to confide his interests to. The proceeding, though criminal in form, is, like a complaint for bastardy, civil in its essential elements, and must therefore be governed by the rules applicable to civil causes. The reserved case finds, as matter of fact, that the town of Plymouth were the complainants. They are now in court asking to be allowed to prosecute to final judgment the complaint which they have instituted and thus far prosecuted. I think under the statute (Gen. Stats., ch. 249) they have the right to do this, and cannot be interfered with. This, of course, is upon the assumption that they have thus far done so, and will continue to do so at their own expense, and without expense to the county. Pierce v. Hillsborough County, 54 N.H. 433. But if it should be made to appear that the complainants have been prosecuting this suit at the expense of the county, they would clearly be in no position to dispute the right of the attorney-general or solicitor to control the further prosecution of this libel.
For obvious reasons the functions of the court and prosecuting officer are entirely distinct. The court cannot usurp the duties of his office, and say what cases shall and what shall not be prosecuted. The law has lodged that duty with officers selected for that special purpose, and who are responsible for the manner in which they perform those duties. Whether the state's attorney shall prosecute this libel to final judgment, or relinquish the liquors seized to the claimant in case it shall appear that the town of Plymouth have not been prosecuting this case at their own expense, or shall abandon its further prosecution, must depend upon the circumstances of the particular case. He is not required to prosecute an indictment if there is no proof to sustain it, or so little evidence that the chance of convicting is not such as to justify the attempt. Nor is he required to prosecute cases where "they are pursued in a spirit that renders them injurious to the public morals." *Page 139 Waldron v. Tuttle, 4 N.H. 151. There is nothing to distinguish this class of cases from any proceeding where the prosecuting officer is obliged to use his discretion. The direction and control of any prosecution is left with him, acting under oath and upon his official responsibility. Commonwealth v. Knapp, 10 Pick. 477. His power to enter a nol. pros. is held virtute officii. He executes it upon his official responsibility, and the court has no right to interfere with its exercise; but it will take care that it shall not operate to the prejudice of the defendant's rights. Commonwealth v. Tuck, 20 Pick. 366. He is to exercise this power at his own discretion, and for its exercise he alone is responsible. Commonwealth v. Wheeler, 2 Mass. 174. The court never advise a nol. pros. except at the instance of the counsel for the government. Commonwealth v. Andrews,2 Mass. 414. If an extreme case should arise, as where it is made to appear to the court that the prosecuting officer is acting corruptly, the court would be justified in refusing to permit a nol. pros. to be entered until the public authorities could remedy the evil; and for corruption in office he would be subject to impeachment.
If the further prosecution of this libel shall devolve upon the state, under the circumstances above supposed, the state's attorney must act according to the circumstances of the case. If in the exercise of a sound discretion he shall be of the opinion that the interests of the public require the discontinuance of these proceedings, he cannot be interfered with by a merely nominal complainant.
3. Whether the libel is placed upon the criminal or civil docket is only a question of convenience. The practice in the different counties is not uniform. If the libel is prosecuted at the expense of the county, its proper place would seem to be upon the criminal docket; if at the expense of a private complainant, its proper place would seem to be on the civil docket.