Hussey v. Davis, 58 N.H. 317." In State v. Lager Beer, 70 N.H. 454, it was held that whiskey illegally kept could not be forfeited upon a warrant authorizing a search for lager beer. "The principle that the forfeiture of property can only be authorized when all the formalities of the law are complied with in the search, seizure and forfeiture proceedings is generally recognized and adhered to . . . ." State v. Liquors, 68 N.H. 47, 48. Moreover, it is settled by the case last cited, that where an officer proceeds under a warrant, he may not justify seizure under the provisions of R.L., c. 424, s. 6. Where property which does not fall within the class of gambling implements is to be seized, it should be described in the warrant, if not with particularity, at least by some plain reference to the other class of property which the statute makes subject to forfeiture.
In the construction of statutes, the direction of the legislature as to the definition of terms and the construction of language is to be followed. State v. Lager Beer, 70 N.H. 454; Dane v. Dane, 67 N.H. 552; Jones v. Surprise, 64 N.H. 243, 245. Applying this rule, "such action" in section 11 means the new action authorized to be brought by section 10, and not the pending action permitted to be prosecuted by section 9, as in section 13 the words "in such case" refer to the damages the elements of which are defined in the preceding section.
The mere fact that an officer has possession of spirituous liquors which were taken from the owner who kept them for illegal sale does not authorize their condemnation. If they were taken by him by virtue of a search warrant issued upon a complaint that does not allege that they were kept for an illegal purpose, a libel for their forfeiture cannot be sustained (State v. Liquors, 68 N.H. 47); or if whiskey is seized upon a warrant authorizing a search for lager beer, there can be no forfeiture of the whiskey, although the owner kept it in violation of law. State v. Lager Beer, 70 N.H. 454. It is essential to the maintenance of a libel in such cases that the seizure be legal. It seems that there can be no decree for a forfeiture of property taken under a search warrant, if the constitutional guaranty against illegal search has been violated. Hussey v. Davis, 58 N.H. 317. The fundamental inquiry therefore is: Was the search and seizure legal?