Stockton, J.
At common law, the owner of a chattel might, by the action of replevin, take it from the possession of any person who unlawfully held it, unless it was in the custodyof the law. If wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass, or trover, against the officer; for the common law would not grant process to take fronfan officer, goods which he had taken by legal process already issued. Cromwell v. Owings, 7 Harr. & Johnson, 55; Ilsley v. Stubb, 5 Mass. 280. Our statute has, however, so far altered the common law, that a person entitledto the present possession of personal property, wrongfully detained from him, on making oath that the property was not taken from him by any legal process, or if so taken, that it was exempt from seizure by such process, may have the possession restored to him. Code, section 1995. The exemption contemplated by this section, extends only to the articles enumerated in sections 1898 and 1899 of the Code, and was intended for the benefit of the particular parties indicated. The articles so exempt, cannot be taken in execution, and if taken, their possession may be recovered under writ a of replevin, by the defendant in execution.
The averment of the plaintiffs’ petition is, that “although the property was taken from them by a pretended legal process, yet that the same was exempt from seizure by such process; and that the alleged cause of the seizure and detention thereof, is that the said property was kept by plaintiffs, for the purpose of being sold as intoxicating liquor, in violation of the provisions of the prohibitory liquor law, which alleged cause they aver to be untrue. The averment that the property was exempt from seizure, would have been sufficient under the Code, (section 1995,) had not the further fact been disclosed, that it was seized by defendant, as intoxicating liquor, by virtue of a search warrant issued under the provisions of the prohibitory liquor law. When [451]*451proceedings are commenced under the “ act for the suppression of intemperance,” by the seizure of intoxicating liquors, alleged to be owned and kept for sale in violation of law, it is not competent for a party, to take the case away from the tribunal whose jurisdiction has attached, by instituting an action of replevin, and regaining possession of the liquors. He cannot so bring about a change of forum — he cannot so change a criminal, into a civil proceeding.
The prohibitory liquor law provides for the final hearing and adjudication of all causes originated under it. The officer to whom the warrant is delivered, is to execute it, and make return of his doings, and securely keep the liquors seized, until final action. Any person claiming an interest in the liquors seized, may appear before the justice, and show cause why they should not be adjudged forfeited, as, that they were not owned or kept with intent to be sold in violation of law. He may have a jury to try the issue; he may introduce testimony; he may appeal to a higher court, from any judgment of condemnation or forfeiture ; and if it is decided that the liquors seized, are not liable to be forfeited, he may have them, with the vessels in which they are contained, restored to the place where they were seized. To suffer a party, in an action of replevin, to take the liquors out of the hands of the officer seizing the same, would be an-interference with the administration of justice in criminal proceedings, and would defeat the whole object and intention of the prohibitory liquor law. Ey that law, the keeping of intoxicating liquors for sale, is prohibited; the liquors so kept, are declared a nuisance, and must be forfeited and destroyed. It is easy to perceive, that if they may be replevied out of the hands of the officer seizing them, there will be very few instances in which the object of the statute will be attained, by the destruction of the liquors kept for sale contrary to law. See Musgrave v. Hall, 40 Maine, 498.
In this view of the requirements of the law, we think [452]*452the district court did not err in dismissing the suit, on the motion of the defendant. The plaintiffs showed by their petition, that they were not entitled to the relief sought in the action of replevin. The liquors were in the custody of the law, by virtue of process issued in a criminal proceeding, and were awaiting the action of the court under the law, by which it was to be ascertained, whether or not they were liable to be forfeited, and to a judgment that they be destroyed. While such proceedings are in pr ogress, the liquors are not the subject of an action of replevin. An attempt by the owners to regain their possession, by a writ of replevin, would, at common law, be deemed a contempt of the jurisdiction of the court issuing the warrant. Intoxicating liquoi-s, kept for sale in violation of law, are not regarded as property. They are outside of the protection of the law, and unless the party suing, avers and shows that they are in his possession with lawful intent, and that he has been illegally deprived of the same, no action can be maintained for their recovery or possession, whether they are in the custody of the law or not. Act of January 22,-1855, section 15.
Some question has been made in the argument, whether it was regular for the court to interpose its authority, on a mere motion to dismiss the suit, without permitting the plaintiffs to prove that they possessed the liquors with lawful intent, or to prove any other averment of their petition. If this is a hardship, it is one which the plaintiffs must bear, as the penalty of having interfered to take the property out of the custody of the law, when they had no right to do so. The averments of the petition, that the property was exempt from seizure on legal process; that the plaintiffs are entitled to the present possession thereof; and that it is wrongfully detained by defendant, are all answered by the plaintiffs themselves, in their petition, when they come to show, as the alleged cause of its detention, that it was kept by them for the purpose of being sold as intoxicating liquor, in violation of the provisions of the “ act for the suppression of intemperance,” and as such was seized. [453]*453The averment that “ the liquors were lawfully in the possession of plaintiffs, for the purpose of being manufactured into vinegar,” becomes an immaterial, one. If proved, it would not be sufficient to sustain plaintiffs’ action. Nor was it necessary to the security and protection of plaintiff s’ rights, that they should have been permitted to prove it in this action. The privilege of establishing their right to the property, is as abundantly secured to them under the act aforesaid, in the trial before the justice of the peace, as in the action of replevin. The only question is, with whom, and in whose custody, shall the liquors remain, until the question of right is decided? Ve think they remain with the officer, in the custody of the law.
To authorize the court to dismiss the action, the motion to dismiss must be based upon matters appearing upon the face of the proceedings. In such case, a demurrer, reaching to the foundation of plaintiff’s right of action, may answer the same purpose. No testimony, outside of the record, can be introduced in support of the motion. To authorize the admission of testimony, the facts necessary to be proved, must be averred by way of plea, in the nature of a plea in abatement to the action. On such a plea, an issue may be joined, and the facts relied upon to dismiss the suit, shown in the ordinary way.
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Stockton, J.
At common law, the owner of a chattel might, by the action of replevin, take it from the possession of any person who unlawfully held it, unless it was in the custodyof the law. If wrongfully taken by virtue of legal process, the remedy of the owner was by action of trespass, or trover, against the officer; for the common law would not grant process to take fronfan officer, goods which he had taken by legal process already issued. Cromwell v. Owings, 7 Harr. & Johnson, 55; Ilsley v. Stubb, 5 Mass. 280. Our statute has, however, so far altered the common law, that a person entitledto the present possession of personal property, wrongfully detained from him, on making oath that the property was not taken from him by any legal process, or if so taken, that it was exempt from seizure by such process, may have the possession restored to him. Code, section 1995. The exemption contemplated by this section, extends only to the articles enumerated in sections 1898 and 1899 of the Code, and was intended for the benefit of the particular parties indicated. The articles so exempt, cannot be taken in execution, and if taken, their possession may be recovered under writ a of replevin, by the defendant in execution.
The averment of the plaintiffs’ petition is, that “although the property was taken from them by a pretended legal process, yet that the same was exempt from seizure by such process; and that the alleged cause of the seizure and detention thereof, is that the said property was kept by plaintiffs, for the purpose of being sold as intoxicating liquor, in violation of the provisions of the prohibitory liquor law, which alleged cause they aver to be untrue. The averment that the property was exempt from seizure, would have been sufficient under the Code, (section 1995,) had not the further fact been disclosed, that it was seized by defendant, as intoxicating liquor, by virtue of a search warrant issued under the provisions of the prohibitory liquor law. When [451]*451proceedings are commenced under the “ act for the suppression of intemperance,” by the seizure of intoxicating liquors, alleged to be owned and kept for sale in violation of law, it is not competent for a party, to take the case away from the tribunal whose jurisdiction has attached, by instituting an action of replevin, and regaining possession of the liquors. He cannot so bring about a change of forum — he cannot so change a criminal, into a civil proceeding.
The prohibitory liquor law provides for the final hearing and adjudication of all causes originated under it. The officer to whom the warrant is delivered, is to execute it, and make return of his doings, and securely keep the liquors seized, until final action. Any person claiming an interest in the liquors seized, may appear before the justice, and show cause why they should not be adjudged forfeited, as, that they were not owned or kept with intent to be sold in violation of law. He may have a jury to try the issue; he may introduce testimony; he may appeal to a higher court, from any judgment of condemnation or forfeiture ; and if it is decided that the liquors seized, are not liable to be forfeited, he may have them, with the vessels in which they are contained, restored to the place where they were seized. To suffer a party, in an action of replevin, to take the liquors out of the hands of the officer seizing the same, would be an-interference with the administration of justice in criminal proceedings, and would defeat the whole object and intention of the prohibitory liquor law. Ey that law, the keeping of intoxicating liquors for sale, is prohibited; the liquors so kept, are declared a nuisance, and must be forfeited and destroyed. It is easy to perceive, that if they may be replevied out of the hands of the officer seizing them, there will be very few instances in which the object of the statute will be attained, by the destruction of the liquors kept for sale contrary to law. See Musgrave v. Hall, 40 Maine, 498.
In this view of the requirements of the law, we think [452]*452the district court did not err in dismissing the suit, on the motion of the defendant. The plaintiffs showed by their petition, that they were not entitled to the relief sought in the action of replevin. The liquors were in the custody of the law, by virtue of process issued in a criminal proceeding, and were awaiting the action of the court under the law, by which it was to be ascertained, whether or not they were liable to be forfeited, and to a judgment that they be destroyed. While such proceedings are in pr ogress, the liquors are not the subject of an action of replevin. An attempt by the owners to regain their possession, by a writ of replevin, would, at common law, be deemed a contempt of the jurisdiction of the court issuing the warrant. Intoxicating liquoi-s, kept for sale in violation of law, are not regarded as property. They are outside of the protection of the law, and unless the party suing, avers and shows that they are in his possession with lawful intent, and that he has been illegally deprived of the same, no action can be maintained for their recovery or possession, whether they are in the custody of the law or not. Act of January 22,-1855, section 15.
Some question has been made in the argument, whether it was regular for the court to interpose its authority, on a mere motion to dismiss the suit, without permitting the plaintiffs to prove that they possessed the liquors with lawful intent, or to prove any other averment of their petition. If this is a hardship, it is one which the plaintiffs must bear, as the penalty of having interfered to take the property out of the custody of the law, when they had no right to do so. The averments of the petition, that the property was exempt from seizure on legal process; that the plaintiffs are entitled to the present possession thereof; and that it is wrongfully detained by defendant, are all answered by the plaintiffs themselves, in their petition, when they come to show, as the alleged cause of its detention, that it was kept by them for the purpose of being sold as intoxicating liquor, in violation of the provisions of the “ act for the suppression of intemperance,” and as such was seized. [453]*453The averment that “ the liquors were lawfully in the possession of plaintiffs, for the purpose of being manufactured into vinegar,” becomes an immaterial, one. If proved, it would not be sufficient to sustain plaintiffs’ action. Nor was it necessary to the security and protection of plaintiff s’ rights, that they should have been permitted to prove it in this action. The privilege of establishing their right to the property, is as abundantly secured to them under the act aforesaid, in the trial before the justice of the peace, as in the action of replevin. The only question is, with whom, and in whose custody, shall the liquors remain, until the question of right is decided? Ve think they remain with the officer, in the custody of the law.
To authorize the court to dismiss the action, the motion to dismiss must be based upon matters appearing upon the face of the proceedings. In such case, a demurrer, reaching to the foundation of plaintiff’s right of action, may answer the same purpose. No testimony, outside of the record, can be introduced in support of the motion. To authorize the admission of testimony, the facts necessary to be proved, must be averred by way of plea, in the nature of a plea in abatement to the action. On such a plea, an issue may be joined, and the facts relied upon to dismiss the suit, shown in the ordinary way. As sufficient appeared upon the face of the petition, to authorize the dismissal of the suit, the admission of testimony in support of the motion, though erroneous, was error without prejudice to plaintiffs.
It is assigned for error by plaintiffs, that the court rendered judgment against them after the suit had been dismissed. The record shows, that after the dismissal, the defendant applied to the court to have his damages assessed by a jury; that a jury was waived by both parties, and the cause submitted to the court; and the value of the liquors replevied being conceded to be of the value of seventy-five dollars, judgment was rendered against plaintiffs for a return of the property to defendant, and, in default [454]*454thereof, that defendant recover of plaintiff the sum of seventy-five dollars.
By the Code, (sec. 2001), it is provided that “if the plaintiff fail to establish his right to the property, the defendant shall recover such damages as, under the circumstances, he shows himself entitled to.” The objection urged by plaintiffs is, that after the dismissal of the suit, no judgment should have been rendered against them for the return of the property, nor, in default of such return, for their value. The question then arises, whether the defendant, upon the suit being dismissed, shall bo driven to his action on the plaintiff’s bond, or whether he is entitled to a judgment for the return of the liquors, and for their value, in default of their return. We are of opinion, that the defendant is not driven to his action on the bond, and that he is entitled to a judgment for the value of the property replevied; or, in the language of the Code above cited, he shall recover such damages as, under the circumstances, he shows himself entitled to. We do not understand the objection of the plaintiffs to be, that the amount of the damages allowed against them, is too large. Erom the effect of such judgment, if any prejudice to their interests was wrought by it, plaintiffs might easily have relieved themselves, by returning the property illegally replevied by them.
Judgment affirmed.
Wrigkt, C. J. dissenting.