body of the oath a new substantive statement of fact not otherwise covered by its terms, but necessary to make good the claim. The Sheriff-Substitute thinks that no such interference with the integrity of the oath as subscribed before the magistrate can be sanctioned. If there be an obvious clerical or typographical mistake, as in the case of Taylor v. Manford, 11th March, 1818, the true meaning may be supplied by construction; but the ipissima verba of the oath as subscribed should remain unaltered. The points mentioned by Dr Barclay in his Digest, p. 15, as having been decided to an apparently contrary effect in the cases of Glen, Taylor, and Hair, are not fully borne out by the reports of these cases either in Shaw and Dunlop's Reports, or in the Jurist. that where the purchases amounted to upwards of £5, credit was allowed to Candlemas following; if approved bills were given within four days after the roup, the cattle were to be removed within three days, and in the events of removal and nonpayment, the exposer was to have power to regain possession brevi manu. A purchaser took away his purchases, which were above £5, without paying or giving bills within the time stipulated, and some time afterwards he signed a trust deed in favour of his creditors. Thereupon the seller raised an action for restoration of the cattle, under the resolutive clause in the articles of roup—Held by the Sheriff-Substitute, and acquiesced in, that the pursuer had lost his right to reclaim the cattle, and action dismissed, with costs. OBJECTIONS FOR MR CAMERON TO VOTES FOR MR THIS was an action by a seller to compel restoration, after an interval, of cattle bought at a public roup, but MILNE. No. 23.-Objection to vote for William Ford & Sons, the price of which had not been paid. The Note of the £70 19s 7d. Sheriff-Substitute sets forth all the facts necessary to the understanding of the case: 1. That the oath, when signed, was blank in the amounts; that these were filled up outwith the presence of the deponent and of the justice, after the oath had left their hands; and that the amounts so filled in are not authenticated. Denied and repelled. The oath being ex facie regular and complete, and being authenticated by the signature of a competent magistrate, forms a solemn judicial act, which, in the absence of admissions, such as were made in Nos. 5 and 15, cannot, as regards the present question, be inquired into or reviewed by the SheriffSubstitute. Having heard parties' procurator, and made avizandum, Finds that whatever effect might be given to the suspensive original defender acquired the property and possession of the or resolutive clause in the articles of roup, under which the cattle, the subject of the action-the pursuer has lost his right to reclaim the same under the circumstances and after the great delay which has occurred in this case; therefore recalls the interim interdict, assoilzies the defender from the prayer of the petition: Finds him and the compearing trustee entitled to their expenses, and remits the account thereof to the auditor to tax, and decerns. NOTE.-Articles of Roup are of the nature of a unilateral, or one-sided deed. They are read at the commencement of the sale, and generally before the public have all assembled, No. 27.-Objections to vote for J. G. Thomson & and may not be heard even by the few then present. So far Co., £27 8s 1d. 1. That the account is not annexed to the oath. Repelled; it is on the same paper with the oath. 2. That the words "was" and "his sequestration" have been inserted in the oath since it was sigued, and after it left the possession of the deponent. Repelled; the oath is sufficient, independently of the words in question. The account annexed to the oath ends on 14th December, 1863, and the deponent swears that on 4th March, 1861, the amount of that account was still due. This necessarily involves that the sum was due on 1st March, 1861-the date of the sequestration-which is all that is required. None of the claimants being within the county, or present at the hearing, no proposal was made for correcting or amending any of the oaths under the 51st sect. of the Act. Agent for Milne-A. FORBES. Agents for Cameron-MURDOCH & FORSYTH. 26TH MARCH, 1864. SHERIFF COURT, PERTHSHIRE-PERTH. (SHERIFF BARCLAY.) A. v. B. Contract-Sale-Condition, Suspensive-Mora.-Cattle were sold by public roup inter alia, the conditions being as they are consistent with public law, and only provide for the terms and conditions which are to regulate the matter of payment, credit, and delivery, these are all fair and competent matters of regulation; but when they go farther, and impose penalties and extraordinary conditions on the purchasers, they pass beyond their proper sphere, and would require express assent by the buyers. In the present case, payment of the purchases was to be made immediately after the roup. But where they amounted to upwards of £5, credit to Candlemas was allowed, where approved bill was given within four days after the roup. Purchasers were obliged to remove cattle and live stock within three days. Where purchasers failed to settle in either way, their purchases were to be forfeited, and, on re-sale, the original purchasers were to be liable in any deficiency, with any further loss or damage. All this is consistent with, and exists at, common law. But there is added the clause:"Farther, in the event of the articles purchased and forfeited as above being removed, it is hereby specially declared and provided, that it shall be lawful to, and in the power of, the exposer, or of the said agents, or both, to regain possession of the animals or articles forfeited brevi manu, and without any process at law." It is impossible to read this very stringent clause (supposing it good at law) without perceiving its intention to be, if any purchaser within the three days had taken delivery, but had refused to pay or grant bill within the four days, the exposer could, at his own hands, take back the articles so sold. In this case the animals were not taken away by violence or deceit, but with the full consent of those acting for the seller. Whatever demands for a settlement were made on the one hand, and promises to settle on the other hand, no attempt to take back the subjects was made until the institution of this action, by which time the purchaser had declared his insolvency, and granted a trust deed. The pursuer, by sale and delivery, had divested himself and invested the defender with the property of the cattle. The clause is set up as imparting a suspensive or resolutive condition in the sale, Whether it can have such effect with out express consent on the part of the purchaser is a question. But if answered in the affirmative, the seller must maintain that at the date of the action, upwards of two months after the sale, he could at his own hands have re-invested himself with the property even from a third party purchasing in good faith from the original buyer. The application to a court of law adds nothing to the strength of the clause or the pursuer's right under the same; but rather has a tendency to the opposite view, and that the clause was no longer operative. The Substitute is of opinion that the obligation on purchasers to take delivery of cattle within three days, was one in favour of the seller, and presumed previous settlement of, or security for, the price. The pursuer could have withheld delivery until satisfaction was thus made. If delivery was fraudulently taken, the seller might have at his own hands brought back the articles; but such a power is always required to be instantly exercised. This is exemplified in the law of hypothec. fence, that the packages had been taken away "in the due course of criminal justice," repelled by the SheriffSubstitute and the interim interdict continued, on the ground that the proceedings in Exchequer were not criminal, but civil, and it was incompetent to make use of criminal forms of procedure to aid in a civil suit. -Held by the Sheriff, on appeal, that the proceedings in Exchequer, being partly criminal and partly civil, it was competent to grant warrant to seize the packages in modum probationis; but as the principal proceedings were in the Supreme Court of Exchequer, which was competent to grant warrant to seize the packages, procedure was sisted for fourteen days to allow an application for such a warrant, but if not then applied for, the Interlocutor appealed would be reverted to, and meantime ordered the packages seized to be kept in safe custody. THIS was a proceeding in connection with the vessel called the "Canton" or "Pampero," said to have been built and equipped for the Confederate Government, in order to cruise against the Federal Mercantile Marine. The vessel had been seized by the Collector of Customs at Glasgow, under orders of the Lord Advocate, as having been armed and equipped in contravention of the Foreign Enlistment Act. On the allegation that certain packages intended for the Pampero were in the custody of M'Farlane & Co., the Procurators-Fiscal presented a Circumstances are not now the same as at the time of sale. The cattle are now of increased value, and it is no sufficient answer that this case can form an item of accounting after a re-sale. The purchaser is now insolvent and under trust. No doubt his trustee and creditors could not voluntarily acquire any higher right than was at the time in the person of their debtor and cedent. But if the clause is suspensive or resolutive of the sale, it would be equally so in a question with creditors using diligence, nay even against the landlord, except to the extent of grass mail. The sale being the last transaction of the kind by the defender, cannot be pled as having given a false credit so as to deceive others. But it may have had the effect of inducing existing creditors to prolong their credit and abstain from diligence. Had the pursuer refused delivery or sought instant restoration, the crisis in the defender's affairs might have sooner occurred, and the benefit to the general body of the creditors been thereby con siderably increased. On the whole, it is the decided opinion of the Sheriff-petition, craving warrant to seize them. Warrant had Substitute that the pursuer is foreclosed from his remedy first, by giving delivery without a settlement for the price; and, next, by the delay of two months before taking active measures for the recovery of the articles. Parties acquiesced in the decision without appeal. 28TH MARCH, 1864. SHERIFF COURT, LANARKSHIRE-GLASGOW. (SHERIFFS SIR A. ALISON AND BELL.) been granted at once, without any one having been called or heard in defence, and the packages were seized and taken away. M'Farlane & Co. then presented a petition craving re-delivery and interdict against the Fiscals opening the packages. After a hearing by Counsel for the Fiscals, and the petitioners' procurator, the Sheriff-Substitute (Bell) pronounced the following Interlocutor: Having heard Mr Naismith, Procurator of Court, for the pursuers, and Mr Gifford, advocate, for the defenders, having reviewed the whole process, Finds that the petition concludes for decree of re-delivery and restitution of five packages, with their contents, said to have been illegally and unwarrantably carried off, on the 8th ult., from the pursuers premises, by the defenders; and for interim interdict against said defenders opening or otherwise interfering with the said packages: Finds Messrs M'FARLANE & Co. v. Messrs HART & GEMMEL, that interim interdict has been granted; but the defenders Procurators-Fiscal. Foreign Enlistment Act, 59th Geo. III., c. 69.--Civil -Criminal.-The LordAdvocate, qua common informer, prosecuted in Exchequer for the forfeiture of a vessel called the "Canton" or "Pampero," built on the Clyde, and seized by order of the Government, on the allegation that she had been armed, equipped, etc., for the service of the Government of the Confederate States of North America, in contravention of the Foreign Enlistment Act, 59th Geo. III., c. 69. Under instructions from the Lord Advocate, the Procurators-Fiscal of Glasgow, qua Fiscals, presented a petition to the Sheriff of Lanarkshire for warrant to seize certain packages, the contents of which were alleged to have been intended for arming or equipping the Pampero-warrant was granted, and the pack ages seized and carried away. Thereupon the petitioners, from whose custody the packages had been carried off, presented a petition craving re-delivery, and interdict against the defender opening the packages. The de plead upon the merits that the packages were taken possession of by them in virtue of a warrant obtained from the Sheriff of the county, upon an application presented to him at the instance of the defender, William Hart, Procurator-Fiscal of Court for the public interest; that the application and warrant forming No. 7 of process, and execution thereof, "were all of the nature of criminal procedure in the due course of the administration of criminal justice;" and that the present is an that the pursuers deny that the defenders were entitled to incompetent attempt to interfere with such procedure: Finds make the application or obtain the warrant founded on, in respect that ex facie of the application itself, it was not of a criminal character, or for the furtherance of criminal justice, and also in respect that it was irregular in point of form, and that the warrant obtained upon it was ultra vires of the Sheriff: Finds it instructed by said production No. 7, that on the 14th Jan. last the said defender Hart presented a petition to the built by the firm of J. & G. Thomson, at their shipbuilding Sheriff, narrating that the vessel called the Pampero had been yard, in the parish of Govan and shire of Lanark; that said vessel had been launched in the Clyde, and furnished with boilers and engines; and that there was reason to believe that she was equipped, furnished, or fitted out contrary to the provisions of the Foreign Enlistment Act, and "with intent that she should be used by the so called Confederate States of America, in hostile operations against the United States of America, with which her Majesty is in amity:" Finds that the petition further sets forth that certain shot-racks, ring-bolts for gun-tackles, and powder magazines with which she was furnished, had been removed from the vessel shortly after she was launched, and were concealed in a store near the said shipbuilding yard; that the vessel herself had been lawfully seized on 10th December, 1863, "in her Majesty's name and authority, by Frederick William Trevor, Collector of Customs in Glasgow, under direction of the Lord Advocate, as having been armed and equipped in contravention of the 7th section of the said statute;" and "that all concerned in the equipment or furnish ing of the said vessel have been guilty of a misdemeanour under the provisions of the 7th section of the said statute (59th Geo. III., cap. 69), and it is necessary for the purposes of justice that the said shot-racks, etc., should be removed and preserved in safety under judicial authority:" Finds that the petition accordingly concludes with a craving for a warrant to search for and take possession of said shot-racks and other articles, "and to deposit the same in the custody of the Clerk of Court, to be retained for the purpose of evidence," and warrant was granted of the same date in these terms by one of the Sheriffs-Substitute: Finds that although the said petition is somewhat vaguely expressed, and does not set forth the intention of the Procurator-Fiscal to proceed against any particular person or persons as guilty of the misdemeanour referred to, it nevertheless states enough to justify its craving, seeing that where a crime or offence has been committed, the Procurator-Fiscal, although he may not have ascertained who the guilty party is, is entitled, for the public interest, to obtain a warrant for recovery of such evidence as may aid him in bringing home the charge, and pave the way for a subsequent application for a warrant to apprehend, and the fair import of said petition, taken as a whole, is that it was with that view warrant was asked to take possession of the shot-racks, etc.: Finds further, that the objection taken to the petition in point of form, and on the ground of want of jurisdiction, founded on the provisions of section 4 of the 59th Geo. III., cap. 69, is not valid, in respect that, although by said section it is made competent for a Justice of the Peace to issue a warrant for the apprehension of the offender on information on oath being laid before him that the statutory offence has been committed, and to send the accused party to jail when apprehended, this does not exclude the common law jurisdiction of the Sheriff Court in all cases of crime, the more especially as it is expressly enacted by the same section that the offence created by the Act, when committed in Scotland, "shall, and may be, prosecuted in the Court of Justiciary, or any other Court competent to try criminal offences committed within the county, shire, or stewarty within which such offence was committed:" Finds that, such being the circumstances connected with the original petition of the 14th of January last, the application more particularly founded on in defence to this action on which the warrant to carry off the effects now in question was obtained, is a minute annexed to said petition on the 8th instant in the following terms: "From further inquiries made and information received by the petitioner, it appears, and there is reason to believe, that there are at present in possession or custody of John M'Farlane, calenderer, No. 44 Mitchell St., Glasgow, a bale or truss of grey cloth, a large box, and two smaller boxes, and a box or chest, like a seaman's chest, and that these were deposited or caused to be deposited with him by J. H. North and G. T. Sinclair, lately residing at No. 32 India Street, Glasgow, who, there is reason to believe, were concerned in the equip ment and furnishing, or in attempting to equip and furnish, the vessel Canton or Pampero, referred to in the foregoing petition; and there is reason to believe that the said grey cloth was intended to be cut, and made up into clothing, for officers and seamen to be employed on board of the said vessel, in contravention of the said statute; and there is reason to believe, also, that the said boxes and chest contain articles that were intended to be used as equipments and furnishings of the said vessel; and it is necessary to secure the same and any other articles deposited with, and now in the possession of, the said John M'Farlane, in his said premises in Mitchell Street aforesaid, for the purpose of evidence on the approaching trial, on the information of Her Majesty's Advocate against John Fleming and others before the Court of Exchequer in Edinburgh; and in order thereto warrant of the Sheriff is craved to search for and take possession of the said bale or truss, and the said boxes and chest, and other articles deposited with, and now in possession of, the said John M'Farlane as aforesaid, and also warrant to cite witnesses for precognition thereanent:" Finds that, of the same date, the Sheriff granted on this minute the following warrant:-"Having considered the foregoing petition, with the above relative minute by the Procurator-Fiscal, grants warrant as craved in said minute, and to deposit the articles referred to in the hands of the Clerk of Court: " Finds that the peculiarity of the foregoing minute is that it not only does not set forth that the object of asking warrant to search for and take possession of the packages in question is with a view to the institution of criminal proceedings against any person or persons, but, on the contrary, expressly states that it is necessary to recover the packages, "for the purpose of evidence in the approaching trial on the information of Her Majesty's Advocate against John Fleming and others before the Court of Exchequer in Edinburgh:" Finds that said minute gives no account of the nature or character of said "approaching trial," and no reference whatever is made to it in the petition itself on which said minute is engrafted: Finds that the granting of a criminal warrant, solely to enable the Procurator-Fiscal to supply evidence to be used in an Exchequer trial, is a procedure in support of which no precedent has been adduced: Finds that it is at all events a warrant of a totally different description from that which is usually granted to a Fiscal with a view to a criminal prosecution: Finds that, as regards the approaching trial in the Court of Exchequer, it is admitted to be not a trial of any person charged with the offence set forth in the 7th section of the Foreign Enlistment Act, but a judicial procedure for ascertaining whether the seizure of the Pampero was a good seizure, and whether she shall be forfeited in respect of the illegal purpose to which she was intended to be applied: Finds that although said inquiry points to penal consequences, and though the Exchequer suit may be fairly described as a penal action, it is not, either in form or in essence, a criminal procedure, which must in every case be directed against a criminal: Finds that in the Exchequer trial the law officers of the Crown are claimants on one side, and the builders and owners of the vessel are claimants on the other, and although to make good their claim the law officers must establish that a statutory offence has been committed, it does not follow that the persons who will suffer by the forfeiture have been guilty of that offence: Finds that the legal compulsitors by which evidence is obtained in civil or penal actions and in criminal procedure are different, and it is a sacred rule that the public prosecutor is not entitled to call to his aid, in any other species of action, the power with which he is armed for the safety of the lieges in criminalibus: Finds that the defenders, having instituted by the petition No. 7 certain proceedings with a view to the prosecution of some person or persons as guilty of a crime or offence, were not entitled to tack on to said petition a craving for a warrant, not with the view of following out said prosecution, but for the purpose of obtaining evidence for one of the parties in a suit, with the institution or following out of which the defenders as Procurators-Fiscal have nothing to do: Finds that the minute annexed to said petition must have been presented, and the warrant obtained upon it must have been granted per incuriam, and the defence to the present action, that the packages in question were taken away "in the due course of the administration of criminal justice" fails: Therefore, and under reference to the annexed Note, repels the defences, continues the interim interdict, and ordains the defenders to re-deliver and restore the said packages as craved. But in respect of the novelty and nicety of the question at issue, and that the defenders acted in virtue of a warrant, finds no expenses due, and decerns. NOTE.-The 7th section of the Foreign Enlistment Act creates a misdemeanour or offence, and declares a forfeiture. The two things are distinct; the person guilty of the offence may be proceeded against, although there be no seizure with a view to a forfeiture; and the forfeiture may be insisted in without any criminal charge being preferred against an individual. By the 4th section the offence is to be prosecuted in "the Court of Justiciary in Scotland, or any other Court competent to try criminal offences;" by the 7th section the forfeiture is to be proceeded with "in such Courts as belonging to the ship in the hands of other parties not yet delivered, but ordered by the owners or builders, and which would prove her warlike_character." The Lord President said, "If you want an order, or anything of that kind, it is another matter;" to which the Lord Advocate answered, "We shall probably apply to the Lord Ordinary." If, inde, pendent of all this, the defenders were to be held entitled to a search warrant without any intimation to the parties interested, and with no view but to aid the proof of the informer in the Exchequer case, it appears to the Sheriff-Substitute that this would be mixing up criminal and civil procedure in a manner hitherto unknown, and would be giving a dangerous advantage to one party over another in a suit conducted in a civil Court, and according to the forms of civil process. It would, besides, be an unauthorised manner of aiding a higher Court to explicate its own jurisdiction, and an interference with procedure of which that Court alone has the control. At the same time, there can be no reason to doubt that the defenders acted in the most perfect bona fides, having been placed in novel and peculiar circumstances. The case of the Pampero is the second which has ever arisen in a Court of Justice upon the 7th section of the Foreign Enlistment Act, the only other being that of the Alexandra, which is still in dependence in England. It cannot, therefore, be matter of surprise that nice and difficult questions in point of form should have arisen in the course of the anxious and important procedure, of a double character, which has been thought necessary. One such question having been raised by this action, the Sheriff-Substitute had only one duty to discharge, which was to give a conscientious judgment according to the best of his knowledge and belief. Both parties appealed-the petitioners against the findings as to expenses. Sir Archibald Alison [ronounced the following judgment: : ships or vessels may be prosecuted and condemned for any breach of the laws made for the protection of the revenues of Customs and Excise, or of the laws of trade and navigation." These are not criminal courts. The 57th section of the Consolidation Excise Act, 7 and 8 Geo. IV., cap. 53, provides that "all goods, commodities, and chattels seized, as forfeited, under, or by virtue of this Act, or any other Act or Acts of Parliament relating to the revenue of Excise, may be returned for condemnation, and condemned in Her Majesty's Courts of Exchequer at Westminster, Edinburgh, and Dub lin respectively;" and the 58th section provides that the Court of Exchequer in Scotland shall exercise the like jurisdiction, and employ the same process for the recovery of debts, penalties, and forfeitures, as the Court of Exchequer in England; and more explicitly still, the 10th section of the Foreign Enlistment Act specially provides that any forfeitures inflicted by the Act "may be prosecuted, sued for, and recovered by action of debt, bill, plaint, or information, in the Court of Exchequer, or in the Court of Session in Scotlaud, in the name of Her Majesty's Advocate for Scotland, or in the name of any person or persons whatsoever." The Court of Session was constituted the Court of Exchequer in Scotland by the Act 19th and 20th Vict., cap. 56. By sect. 9 of that statute it is enacted that all cases commenced by subpoena "shall be conducted as nearly as may be in conformity with the procedure before the Court of Session in ordinary actions;" and section 11, which prescribes the procedure in cases of seizure and forfeiture, after directing as to certain preliminary steps to be taken before the Lord Ordinary, enacts that, after information of seizure has been lodged, "the procedure shall thenceforward be conducted as nearly as may be in the like manner as in ordinary causes, commenced by subpoena and information." It is quite understood and settled in England, that an Exchequer process proceeding on information "is only a civil process for recovery of a debt due to the Crown" (Bateman's Laws of Excise, p. 59). Another writer says:-"An infor- Having heard the procurator for the pursuers and counsel mation on behalf of the Crown, filed in Exchequer by for the defenders, under the mutual appeals for the parties the Attorney-General, is a proceeding for recovering upon the Interlocutor appealed against, closed record and money or other chattels, It is grounded on no writ whole process, Finds that it is a general principle of law that, under seal, but merely on the intimation of the Attorney in the general case, the civil and criminal Courts are to be General, who gives the Court to understand and be in- kept clear of each other, and that the machinery by which formed of the matter in question, upon which the party is their decrees and sentences respectively are to be enforced is put to answer, and trial is had, as in suits between subject to be kept apart, and not intermingled with each other: Finds, and subjects" (Kerr's Action at Law, p. 43). Substantially, however, that an exception to this general principle is admitted therefore, the "approaching trial before the Court of Ex- in our law, both statutory and common, in certain cases chequer in Edinburgh has very much the character of where, from the intricacy of the matter involved in the alleged what with us is called a multiplepoinding, in which the offence or its running into an accounting which it is scarcely right to a fund in medio is maintained by different claimants. possible to bring in a concise form before a jury, the forms of The real question at issue in this action is whether criminal the civil Court appear to be more suitable for it than those of procedure at the instance of the Procurator-Fiscal can be the criminal: Finds that, among others, an example of this is made ancillary to the objects of the informer, as one of the to be found in the case of a charge of fraudulent bankruptcy, claimants in said suit. The general rule is that a criminal in regard to which it was enacted by the Act 1696, cap. 5, warrant is only issuable when the punishment of a criminal that the cognisance of that offence is remitted to the supreme is contemplated. The defenders admit that the Exchequer Civil Court, who are empowered not only "to declare the case has no such object in view. The Lord Advocate is no offender infamous, but to punish him by banishment or otherdoubt the informer, just as any other person might have wise, death excepted, as they shall see cause, according to the been; but he is not there in the exercise of his criminal measure of his fault:" Finds that the jurisdiction of the Court functions. He is claiming a ship alleged to be forfeited; he of Session, though a civil Court, was in this matter held to be is not insisting for the punishment of an individual. The so completely extended by statute to the imposing of criminal procedure which has already taken place, as instructed by punishment that in the case of James Duncan v. the Lord the printed record produced, is entirely that of civil process. | Advocate, 21st January, 1823, it was decided by a majority of Written pleadings have been lodged, discussions have taken the Justiciary Court that that supreme criminal tribunal was place before the Lord Ordinary, and Interlocutors pronounced not competent to the trial of cases of fraudulent bankruptcy, by him have been taken by an appeal to the Inner House; & in consequence of which the statute 7 and 8 Geo. IV., cap. 20, commission has been granted to take the evidence of a was passed, which enacts that it shall be competent to prosewitness abroad, and a diligence has been issued against cute all persons accused of fraudulent bankruptcy in Scotland havers; bills of exception, motions for a new trial, and appeal before the High Court or any of the Circuit Courts of Justito the House of Lords, have all been stated to be competent. ciary, "and to inflict such punishment on persons convicted If the forfeiture is declared, the claimants are liable in thereof as is now competent for the Lords of Session to award "double costs of suit." All this is inconsistent with and against persons convicted of the same crime:" Finds that absolutely opposed to the idea of criminal procedure. As another instance of civil Court possessing a mixed civil and part of his diligence against havers, the informer asked to be criminal jurisdiction in matters peculiar to this cognisance, is allowed to demand from them "the whole equipments, to be found in the statutes relating to the protection of the fittings, and furnishings of the ship,' in so far as not already public revenue, which, though privative to the Court of seized for the use of Her Majesty." This would have covered Exchequer, which is essentially a civil Court, may yet be prothe packages now in question; but the Court refused to grant secuted to the effect of imposing heavy fines and imprisonment in such diligence, although the Lord Advocate said, “I have no that Court, which are frequently inflicted on defenders by that civil other mode of recovering them." The Court, however, ex tribunal, and often exceed in severity, from the magnitude of the pressly reserved consideration of any application which might fines imposed, the punishment inflicted on persons convicted of be made to it for a warrant or order to receive "fittings | the leniora delicta in the regular supreme or inferior criminal a Courts: Finds that it is another principle in the law of Scotland potentate, or of any foreign colony, province, or part of any that it is competent either for the Justiciary or Sheriff Court province or people, etc., as a transport or storeship, or with to entertain, and it is the duty of the public prosecutors in intent to cruise or commit hostilities against any prince, state, such Courts respectively to bring before them cases of incipient or potentate with whom His Majesty shall not be then at war; or suspected crime, in which material or real evidence exists, or shall, within the United Kingdom, or any of His Majesty's or is suspected to exist, of a crime or offence either completed dominions, issue or deliver any commission for any ship or or in the course of completion, whether it be a malum in se or vessel, to the intent that such ship or vessel shall be employed a malum prohibitum, and whether or not any person has been as aforesaid, every such person so offending shall be deemed apprehended or can be condescended on as accessory to such guilty of a misdemeanour, and shall, upon conviction thereof, crime or offence, and that the whole powers and machinery of upon any information or indictment, be punished by fine and the criminal law may be called for and put in force for the dis- imprisonment, or either of them, at the discretion of the covery of the particulars of such crime or offence, the security Court in which such offender shall be convicted; and every of the lieges, and the discovery and apprehension of the per- such ship or vessel, with the tackle, apparel, and furniture, son suspected as guilty of it: Finds, upon this principle, that together with all the materials, arms, ammunition, and if information should be laid before the Procurator-Fiscal to stores which may belong to, or be on board of, any such ship, the effect that a serious crime, such as murder, housebreaking, shall be forfeited:" Finds that, by section 10th of the same or robbery has been committed at a particular time and place, | Act, it is enacted "that any penalty or forfeiture in or that arms or gunpowder are collected and stored, as sus flicted by this Act may be prosecuted for, sued, and pected for a treasonable purpose, or that some operations dan recovered in the Courts of Record in Westminster or gerous to the lieges are going on in a crowded locality, it is Dublin, or in the Court of Exchequer or Court of competent for the Procurator-Fiscal to apply for, and the duty Session in Scotland, in name of His Majesty's Attorney of the Sheriff to grant, a warrant to search for the particulars General for England or Ireland, or of His Majesty's Ad of the alleged offence, and for securing and seizing articles that vocate for Scotland, or in the name of any person or may be used as evidence of the crime, under the control of persons whatever, and in every such suit the person against the Court, and depositing them in a place of safety with a view whom judgment shall be given for any penalty or forfeiture to their being made use of, either for intermediate measures under this Act shall pay double costs of suit; and one moiety of precaution, or being used in evidence at the trial of any per- of every penalty to be recovered by virtue of this Act shall sons who may hereafter be apprehended as guilty of the offence go and be applied to His Majesty, his heirs and successors, and or crime, and that although no person at the time of granting the other moiety to the use of such person or persons as shall such warrant is either known or suspected to be implicated in first sue for the same, after deducting the charges of prose such offence: Finds that this principle applies equally to of cution for the whole:" Finds that the true test of the dis fences of the nature of mala prohibita as to mala in se, being tinction between civil and criminal actions is to be found in contraventions of the universal moral law; as, for example, it Baron Hume's words, in the very first page of his "Criminal applies to searches of stores for smuggled goods, or weapons to Law," in this, that proper criminal actions are those in which be employed by smugglers against excise officers, or to the either without reparation to the injured party, or in addition search for stills or other implements for evading the excise thereto, a certain penalty is imposed upon the offender in duties, as well as to warrants for searches for suspected articles vindictum publicum, or in expiation to the public: Finds that, or articles of evidence in cases of treason, murder, fire-raising, applying this test to the Act of Parliament under which the or housebreaking: Finds, however, that in all such cases the proceedings before the Court of Exchequer have been brought, Procurator-Fiscal must pray for, and the warrant must autho- these proceedings must be held as of a mixed description rise a search only in particular places specified in the applica- relating to a charge which is declared by the statute to be an tion or warrant, and to the effect only of security to the lieges, offence and misdemeanour punishable by fine and imprisonment, and to be used as evidence in any future trial for the crime or and which concludes also for the forfeiture of the vessel, with offence charged: Finds that the test of the competency of its whole tackle and appurtenances, one half whereof is deapplying for such a warrant in any Court before which a pro-clared by the statute to go to Her Majesty in vindicta publica, cess depends in which it is demanded, depends upon the fact which is a highly penal conclusion, and one-half to the Lordwhether in that process there is an offence charged-whether | Advocate as the party sueing out the suit, which is a patrimalum prohibitum or malum in se, and whether there are penal monial or civil interest only: Finds that in the opinions conclusions in the process consequent on that charge, and which delivered by the Judges of the First Division in the Exchequer the Court is competent to entertain: Finds that on this prin- it was laid down by all the Judges that the case was of a ciple, beyond all doubt, it is competent for the Court of Session, highly penal character, and that as such the usual proceedings if a prosecution for fraudulent bankruptcy is brought before it, in purely civil cases should not be followed, but the form or a charge of fraudulent bankruptcy is made without the guilty applicable to criminal proceeding should be adopted, viz., that party being discovered, to grant a search warrant for recovery questions of relevancy should be decided before going to of books or material documents to support the charge, or the trial-the Lord President stating, "here the case is of a penal tracing out of the guilty party, though not yet discovered: character and alleged contravention of a statute, the conse Finds that the competency of applying to any inferior Court quences of such contravention being punishment by fine and for a search warrant to lend its assistance by an auxiliary imprisonment, and forfeiture of valuable property. It is most process for the recovery of articles, or the tracing out of evi- consistent with our practice in prosecutions for punishment dence that may be of importance in the course of the trial that such questions should be disposed of before going to trial, before the superior Court, depends upon two things-first, and although this prosecution is for the forfeiture only, and whether the supreme Court in which the process originated not for the fine and imprisonment, there does not appear to could be, or was, in the circumstances, competent itself to be any sufficient reason why the same course in this respect grant such a search warrant; and, secondly, whether the should not be followed which undoubtedly would have inferior Court to which the application is made has jurisdic- been followed if a prosecution founded on the same facts tion territorially, and from the nature of the offence alleged had had for its objects fine and imprisonment, and not to have been committed by some person or persons as yet merely forfeiture:" Finds that the conclusion for forfeiture undiscovered: Finds that the statute founded on under the of the vessel in the information before the Court of prosecution before the Court of Exchequer at Edinburgh is Exchequer is of a far higher penal character than any the Foreign Enlistment Act of 59 Geo. III., cap. 69, which fine or imprisonment which could be concluded for in is intituled "An Act to prevent the enlisting or engaging of any complaint of a strictly criminal nature-the forfeiture His Majesty's subjects, and the fitting out or equipping in involving the loss of property to the defenders probably more His Majesty's dominions, vessels for warlike purposes without than twenty times the amount of any fine that would likely His Majesty's license:" Finds that by sect. 7th of this Act it be imposed: Finds that the Lord-Advocate having applied to is enacted that if any person in the United Kingdom shall, the Court of Exchequer at Edinburgh for a diligence to rewithout the leave and license of His Majesty, "equip, fur- cover the equipments of the vessel, the Court unanimously nish, fit out, or arm, or attempt or endeavour to equip, fur- held that the demand to recover the equipments could not be nish, fit out, or arm, or aid, assist, or be concerned in the granted in the form of a diligence against havers, not because equipping, furnishing, fitting out, or arming of any ship or the Lord-Advocate was not entitled to get the equipments vessel with intent, or in order that such ship or vessel shall with the view of being produced in evidence at the trial in be employed in the service of any foreign prince, state, or some way, but because a diligence was the form applicable to |