The provision of the statute, with reference to the forfeiture of spirituous liquor, manifestly has in view the same object as those other parts whereby its sale is regulated and prohibited, namely, to prevent or diminish the evils of intemperance. One of the modes adopted to bring about this end is a proceeding in personam by indictment for a penalty; the other is this proceeding in rem for a forfeiture of the offending goods. In form, the latter is to be regarded as a civil proceeding — State v. Barrels of Liquor, 47 N.H. 369; in substance, it is a proceeding for the enforcement of the criminal law — Fisher v. McGirr, 1 Gray 1, 26, 27, 1 Bish. Crim. Law, sec. 695, et seq. It has always been brought in the name of the state; and it was not until the act of July 2, 1870, that the prosecutor had any interest in the sale of the confiscated property. I think the libel partakes so far of the nature of a criminal proceeding, and the state is so far a party in interest, that it should properly be regarded as within the general management and control of the attorney-general. In exercising such control, of course that officer cannot disregard the rights which any prosecutor may have *Page 140 acquired in the subject-matter of the litigation by virtue of the statute. If the prosecution has been carried on wholly by the complainant or private prosecutor, without calling in the aid of the solicitor or attorney-general, and without subjecting the county to any expense or liability there would seem to be no reason for any interference by those officers, and probably no right to interfere would exist, at least so far as regards the interest of the prosecutor.
In this case, I think the attorney-general, with the assent of the complainants, may surrender the liquor to the claimants, upon such terms as, in his judgment, the public good requires. If the town of Plymouth have prosecuted the libel thus far at their own expense, and desire to prosecute it to a final result, taking the whole burden and risk of the same, according to the rule laid down in Pierce v. Hillsborough County,54 N.H. 433, and so refuse their assent to a surrender, I think they have rights that cannot properly or legally be disregarded and destroyed without their assent.