The application of the principle to the present case is difficult because the one party, the plaintiff, has propounded a claim to money which, he says, he found before it came to the hands of the defendant, and the other party, the defendant as Collector, has propounded a claim to the same money on the ground that after the time when the plaintiff says he found it, it became forfeit to the Crown.

The solution of the difficulty, in my opinion, lies in a consideration of the effect produced by the provisions of the Customs Act. The right of forfeiture relied upon by the Crown is altogether independent of the validity of the plaintiff's claim. Even if he did find the silver, so as to obtain a right to its possession, the forfeiture over-reaches his claim. But to over-reach it steps must be taken on behalf of the Crown to secure a condemnation of the goods, or the statutory equivalent of a condemnation. It was open to the Customs to retain the money without seeking to forfeit it and, if the plaintiff carried out his threat to sue for it, to rely upon any weakness in the title he set up to the possession of the money. But, in that case, the Crown would be exposed to the risk of the plaintiff's recovering the money if he established a prior possessory title. The Customs did not take this risk but proceeded under sec. 207 to obtain the equivalent of a condemnation. This step involved the assumption that the plaintiff was "owner" of the coins. It may be granted that the assumption was made only for the purpose of obtaining a forfeiture and that, if the forfeiture proves not to have been effected, the Customs are not precluded from denying his ownership. Nevertheless for that purpose his prima facie title is assumed. The purpose of assuming it is to defeat it. But that purpose can only be accomplished by calling upon him to enter the present action. If he does not, the goods assumed to be his are condemned.