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 com. mitted 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, expresty states that it is necessary to recover the packages, "fr 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 cr character of said "approaching trial," and no reference what ever 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 crimin prosecution: Finds that, as regards the approaching trial is the Court of Exchequer, it is admitted to be not a trial of aty 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: Fin that although said inquiry points to penal consequences, and though the Exchequer suit may be fairly described as a persi action, it is not, either in form or in essence, a criminal pre cedure, which must in every case be directed against a criminai 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 persona 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 prosector 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 lig in criminalibus: Finds that the defenders, having institute 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 prose cution, 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 pre sented, and the warrant obtained upon it must have be granted per incuriam, and the defence to the present action, that the packages in question were taken away "in the das course of the administration of criminal justice" fails: There fore, and under reference to the annexed Note, repels the defences, continues the interim interdict, and ordains the de fenders 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 in sisted in without any criminal charge being preferred against an individual. By the 4th section the offence is to be ass cuted 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

s or vessels may be prosecuted and condemned for any ach of the laws made for the protection of the revenues of toms and Excise, or of the laws of trade and navigation." se are not criminal courts. The 57th section of the Condation Excise Act, 7 and 8 Geo. IV., cap. 53, provides "all goods, commodities, and chattels seized, as forfeited, er, or by virtue of this Act, or any other Act or Acts of liament relating to the revenue of Excise, may be reed for condemnation, and condemned in Her Majesty's arts of Exchequer at Westminster, Edinburgh, and Dub respectively;" and the 58th section provides that the rt of Exchequer in Scotland shall exercise the like jurisiou, and employ the same process for the recovery of , penalties, and forfeitures, as the Court of Exchequer England; and more explicitly still, the 10th section of the gn Enlistment Act specially provides that any forfeis inflicted by the Act "may be prosecuted, sued for, and vered by action of debt, bill, plaint, or information, in Court of Exchequer, or in the Court of Session in Scot, in the name of Her Majesty's Advocate for Scotland, or he name of any person or persons whatsoever." The rt of Session was constituted the Court of Exchequer in and by the Act 19th and 20th Vict., cap. 56. By sect. that statute it is enacted that all cases commenced by Ena "shall be conducted as nearly as may be in conforwith the procedure before the Court of Session in ordiactions;" and section 11, which prescribes the procedure ses of seizure and forfeiture, after directing as to certain minary steps to be taken before the Lord Ordinary, is that, after information of seizure has been lodged, e procedure shall thenceforward be conducted as nearly may be in the like manner as in ordinary causes, comced by subpoena and information." It is quite underI and settled in England, that an Exchequer process ding on information "is only a civil process for very of a debt due to the Crown" (Bateman's Laws Excise, p. 59). Another writer says:-"An inforon on behalf of the Crown, filed in Exchequer by Attorney-General, is a proceeding for recovering y or other chattels, It is grounded on no writ seal, but merely on the intimation of the Attorney ral, who gives the Court to understand and be ined of the matter in question, upon which the party is to answer, and trial is had, as in suits between subject subjects" (Kerr's Action at Law, p. 43). Substantially, fore, the "approaching trial before the Court of Exer in Edinburgh" has very much the character of with us is called a multiplepoinding, in which the to a fund in medio is maintained by different claimants. real question at issue in this action is whether criminal Jure at the instance of the Procurator-Fiscal cau be ancillary to the objects of the informer, as one of the aats in said suit. The general rule is that a criminal at is only issuable when the punishment of a criminal templated. The defenders admit that the Exchequer has no such object in view. The Lord Advocate is no the informer, just as any other person might have but he is not there in the exercise of his criminal s. He is claiming a ship alleged to be forfeited; he insisting for the punishment of an individual. The dare which has already taken place, as instructed by printed record produced, is entirely that of civil process. en pleadings have been lodged, discussions have taken before the Lord Ordinary, and Interlocutors pronounced i have been taken by an appeal to the Inner House; a ission has been granted to take the evidence of a abroad, and a diligence has been issued against bills of exception, motions for a new trial, and appeal House of Lords, have all been stated to be competent. e forfeiture is declared, the claimants are liable in ble costs of suit." All this is inconsistent with and tely opposed to the idea of criminal procedure. As a of his diligence against havers, the informer asked to be ed to demand from them "the whole equipments, 33, and furnishings of the ship,' in so far as not already for the use of Her Majesty." This would have covered ackages now in question; but the Court refused to grant diligence, although the Lord Advocate said, "I have no mode of recovering them." The Court, however, exly reserved consideration of any application which might vla to it for a warrant or order to receive "fittings |

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 pronounced the following judgment:

Having heard the procurator for the pursuers and counsel for the defenders, under the mutual appeals for the parties upon the Interlocutor appealed against, closed record and whole process, Finds that it is a general principle of law that, in the general case, the civil and criminal Courts are to be kept clear of each other, and that the machinery by which their decrees and sentences respectively are to be enforced is to be kept apart, and not intermingled with each other: Finds, however, that an exception to this general principle is admitted in our law, both statutory and common, in certain cases where, from the intricacy of the matter involved in the alleged offence or its running into an accounting which it is scarcely possible to bring in a concise form before a jury, the forms of. the civil Court appear to be more suitable for it than those of the criminal: Finds that, among others, an example of this is to be found in the case of a charge of fraudulent bankruptcy, in regard to which it was enacted by the Act 1696, cap. 5, that the cognisance of that offence is remitted to the supreme Civil Court, who are empowered not only "to declare the offender infamous, but to punish him by banishment or otherwise, death excepted, as they shall see cause, according to the measure of his fault:" Finds that the jurisdiction of the Court of Session, though a civil Court, was in this matter held to be so completely extended by statute to the imposing of criminal punishment that in the case of James Duncan v. the Lord Advocate, 21st January, 1823, it was decided by a majority of the Justiciary Court that that supreme criminal tribunal was not competent to the trial of cases of fraudulent bankruptcy, in consequence of which the statute 7 and 8 Geo. IV., cap. 20, was passed, which enacts that it shall be competent to prosecute all persons accused of fraudulent bankruptcy in Scotland before the High Court or any of the Circuit Courts of Justiciary, "and to inflict such punishment on persons convicted thereof as is now competent for the Lords of Session to award against persons convicted of the same crime:" Finds that another instance of civil Court possessing a mixed civil and criminal jurisdiction in matters peculiar to this cognisance, is to be found in the statutes relating to the protection of the public revenue, which, though privative to the Court of Exchequer, which is essentially a civil Court, may yet be prosecuted to the effect of imposing heavy fines and imprisonment in that Court, which are frequentlyinflicted on defenders by that civil tribunal, and often exceed in severity, from the magnitude of the fines imposed, the punishment inflicted on persons convicted of the leniora delicta in the regular supreme or inferior criminal

the recovery of writings, and not for the recovery of the ipsa corpora of moveables, how important soever as evidence in the case: Finds that Lord Deas, in delivering his opinion, stated, "I by no means say that the Lord-Advocate might not get a warrant which would substantially serve his purpose, but he can not get it in the form of a diligence against havers;" and Lord Ardmillan said, "I don't think the Lord-Advocate is entitled to obtain opportunities of seizure by using a diligence against havers; but I think he is entitled to any formal warrant by which he can be aided in procuring the equipments of the Pampero, wherever they are, which he thinks may be evidence in the case:" Finds, therefore, that the opinion of the Court in the Exchequer case, so far as hitherto expressed, is, that the case of the Lord-Advocate, as it stands on the information in Exchequer, is of a mixed penal and civil character, and that the penalties which the statute specifies are for misdemeanours and offences: Finds that the Court of Exchequer have expressed an opinion that the equipments of the vessel may be competently recovered by Her Majesty's Advocate under a proper formal warrant; but that a diligence against havers for recovery of writings is not the proper form for effecting that object: Finds that the application to the Sheriff by the Procurator-Fisca', under which the warrant to seize the goods in question in the present case, bears upon its face to be ancillary to, and the warrant was craved to seize the goods in order to be used as evidence at the trial of a case substantially of a highly penal character, though declared by statute to be competent before the Court of Session or Court of Exchequer: Finds that such an application was competent, and that the Sheriff was bound to grant the warrant craved, in respect that it was ancillary to an action containing criminal and penal conclusions; and the articles for which the warrant craved and granted was tended to be procured in evidence were locally situated within the jurisdiction of the Sheriff, and their seizure was raved to explicate the jurisdiction of a superior Court criminal this matter, just as this Court issues its warrant for revery of articles in cases of murder and treason privative to e Court of Justiciary: Finds that the circumstance of there ng no persons charged with a crime or offence under Procurator-Fiscal's application, under which the warant to seize the goods in question were seized, did not ader the application, or the warrant granted under it, pen to exception, in respect it is the crime or offence, it the criminal, which renders such an application mpetent, and the offence alleged to have been comitted in the equipment of the Pampero was stated the application to have been committed within the county Lanark, and the articles craved to be seized were in the me county, and the whole proceeding was ancillary to a mpetent criminal and penal proceeding depending before Court of Exchequer: Finds, therefore, that the applicaon by the petitioners in the present case, to have the articles Lich were seized under the warrant granted by the Sheriff, on the application of the Procurator-Fiscal, restored, as ving been improperly seized, cannot hoc statu be granted, alters the Interlocutor appealed against accordingly: ds, however, that although it was competent for the rendents to apply for, and the Sheriff to grant, a warrant to ze the articles in question to be used in modum probationis the Supreme Court, yet it does not follow from that, that en so seized, they can either be opened or retained for an finite time, and that it is the duty of the Court to take that the circumstance of the boxes and articles being in = meantime secured in manibus curia may not be twisted to prejudice of either party: Finds that if the Interlocutor der review were to be simpliciter adhered to, and the boxes other articles ordered to be restored to the petitioners, Lord-Advocate, at the approaching trial of the case in hequer, might be deprived of most important evidence, ause the petitioners, the moment they got back the boxes articles, might throw them into the fire or send them out Le country beyond the reach of either Court: Finds, on the r hand, that if warrant was granted by the Sheriff to open oxes and make an inventory of the articles they contain, ow a portion of them to be retained as evidence-as is ved for in the respondent's counter petition-it might ly injure the owners of the vessel threatened with its tore, and that without these owners the real parties rested having been at all heard for their interest in the e which has hitherto been entirely between the Pro

curator-Fiscal and the parties who happen to be the mere custodiers of the boxes in Glasgow at the time they were seized: Finds, separatim, that were the Sheriff to pronounce absolutely on the present case either way, he would be virtually disposing of an important branch of the process in Exchequer, when it is not before him, but before the Supreme Court of Exchequer at Edinburgh, by whom alone such important questions should be determined: Therefore, upon the whole, recalls hoc statu the Interlocutor appealed, and, in lieu thereof, sists process for fourteen days from this date, in order to give Her Majesty's Advocate an opportunity, if so advised, of applying to the Court of Exchequer for a warrant to have the boxes and articles in question either removed to Edinburgh, or to have them and their contents disposed of here in such way as shall be directed by the warrant of the Supreme Court: And in the event of such warrant being applied for, sists process till the same shall be finally disposed of, under certification that if within the same period such warrant shall not be applied for, the Interlocutor under review will be simpliciter reverted to: And meanwhile appoints the boxes and articles in question to be retained in manibus curice unopened, subject to the future orders of the Supreme Court, or of this Court. Act. JOHN NAISMITH

Alt. ADAM GIFFORD, Advocate,

30TH MARCH, 1864.

SHERIFF COURT, LANARKSHIRE-AIRDRIE, (MR SHERIFF LOGIE.)

DONALD v. FORSYTH.

General Turnpike Act 1 & 2 William IV., cap. 43, sect. 37-Burial Grounds (Scotland) Act 18 & 19 Vict., c. 68, sect. 22-Toll dues-Exemption from.-A carriage was hired to take a body and the mourners to a burying-ground. On its way to the dwelling-house, the carriage passed through a toll-bar, and toll dues were asked and paid. The same carriage returned with the body and the mourners, and passed through the same bar on its way to the church-yard, but no dues were asked. In an action for repetition of the dues charged and puid, decree given for the sum sued for.

THE pursuer in this case, who is an inn-keeper in Coatbridge, Old Monkland parish, was employed by a party in Airdrie, New Monkland parish, on 19th October last, to send a hearse or mourning coach to lift the body of a child at the west-end of Airdrie, and to carry it, with the mourners, to the burying-ground at Gartsherrie, in Old Monkland parish. Toll was charged and paid for said hearse or mourning coach at Coatdyke toll-bar, Old Monkland, when proceeding to Airdrie for the above purpose. The coach passed through the same toll-bar with the body and mourners on their way to Gartsherrie, and it did not again pass through said toll-bar with the mourners, after the funeral. Repetition of the toll so paid is now sought, on the ground that the coach at the time was going to a place of interment, on the occasion of an interment under the exemption clause in the Burial Grounds (Scotland) Act, 18 and 19 Vict., c. 68, sec. 22, which enacts, that "no funeral procession, or carriage in such procession, and no foot passenger shall, while going to, or returning from, the place of interment on the occasion of any interment, be liable in any toll or pontage." The point in dispute is a very nice one, and, as might be expected, the above clause has given rise to a great diversity of opinion among the Judges who have had occasion to interpret it. With very great hesitation, I have come to be of opinion that, in the present case, the