United States and, therefore, recognises any mode of recovery by

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which that value can be obtained.

cases,

It is not unworthy of remark, that vessels are, by the act of 1790, rendered liable to forfeiture in three s. 14. 27. & 60. in neither of which is it declared that "the value thereof" may be recovered. The 67th section, if intended to ascertain the forfeiture of ships by seizure and condemnation only, may operate consistently on that act, but it cannot, where an alternative is given to sue for the value.

As we cannot proceed in rem without a seizure, if a transfer or sale secures the property in the transferee, or vendee, the law will, in this respect, be defeated.

Admitting that the vendee is safe, the offender is liable to be proceeded against in personam, for the value of the property forfeited: If so, his assignees, in case of his bankruptcy, are also; for his creditors have but an equitable lien on his estate in the hands of his assignees; and the United States have a legal right, which, after suit brought, has relation back to the time of the forfeiture.

*With respect to the exceptions to the witnesses, the court, in rejecting the testimony of Hackman, have carried the doctrine farther than it is warranted by any precedent. It was, in fact, deciding that a witness may refuse to give testimony against a defendant, because that defendant is his debtor, and his testimony, by esta blishing the plaintiff's claim, would diminish the funds out of which the witness's claim might be satisfied.

This interest is certainly too remote and contingent to exclude the witness. It may, perhaps, affect his credibility, but not his competency.

The other witness who was called to prove the entry in the books of Brown & Hackman, was also improperly rejected.

After the rejection of Hackman himself, and after proving the book to be in the possession of the opposite party, who refused to produce it, the next best evidence was the testimony of a person who had seen the entry in the book, in the hand-writing of Hackman.

The judgment of the district court upon the libel is no bar to the present action. That judgment was not given on the point of the forfeiture, but upon the ground that the United States could not follow the thing itself

into the hands of a bona fide purchaser, for a valuable United States consideration, without notice. It does not bar the re

medy in personam.

P. B. Key and Martin, contra.

1. As to the rejection of Hackman, as a witness. He was offered by the United States to prove that he was an alien, and was interested in the ship at the time the oath was taken by Brown. The defendant objected, and, upon the voir dire, he declared himself interested, and objected to answering against his interest. [Key was about to read an authority, when the Chief Justice told him that no authorities would be required on that point. Johnson, J. said he should like to see the authority for his own satisfaction. Marshall, Ch. J. When we said there was no necessity for authorities, we meant authorities to prove that a man, in a civil case, is not bound to testify against his interest. But this does not preclude the objection, that the facts stated by the witness, as the ground of his interest, did not prove him to be interested. Key then cited Peake's Law of Ev. 132.]

2. As to the rejection of the witness who was called to prove the entry in the books of Brown & Hackman.

There was no proof that it was one of the books of that firm; nor was any notice given to the defendants to produce it. It was not proved to be in the possession of the defendants, but in that of the assignees of Brown & Hackman, who were different persons. The plaintiffs might have had a subpana duces tecum. The ground of the opinion of the court was, that the testimony offered was not the best evidence, as the book itself might have been had.

3. The important question in the cause is whether, by the act of forfeiture, the property vested in the United States before condemnation.

We admit that the owner of property may maintain trover against a vendee claiming under a third person, and disaffirm the sale; or he may affirm the sale, and bring an action for the price. The present action is grounded on the right of property being in the United States at the time of the sale. The seizure of the vessel was not made by the United States until after the

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United States assignees of Brown had sold and delivered her to a third

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person.

If the present action is not founded on the right of property, the action should have been debt for the penalty, or a special action on the case, grounded upon the statute, and averring every matter necessary to entitle the United States to recover.

*The right of the United States to the property depends upon the act of 1792. The 4th section, which declares the forfeiture and penalty, is silent as to the remedy. When the act creating a penalty is silent as to its mode of recovery, the action must be debt or case on the statute.

The only remedy, then, which the United States had, was either by a seizure of the ship, or an action of debt, or special action on the case, for the penalty. But the present is an action for money had and received. is not grounded on a crime or a tort.

It

The United States have lost their remedy in rem, by suffering it to be sold without notice. Upon this point, the sentence of the district court, which has been acquiesced under, is conclusive; for it goes upon the ground that the United States had not the right to the thing at the time of the sale; for if they had, the vendee gained no legal title, and, therefore, could not be protected by the want of notice. But he was protected by want of notice; he must, therefore, have gained a legal title, which could be protected. He could gain his legal title only from the assignees, but they could not convey a legal title which was not in them. At the time of sale, therefore, the legal title must have been in the assignees; and, as there could not be two legal titles to the same thing, at the same time, in different persons, the title could not be in the United States. This is the consequence which inevitably results from the sentence.

Having lost their remedy against the thing, their only alternative is an action for the penalty against the person who took the false oath. The act provides no substitute for the process in rem, but the action against that person; it gives no right of action against the person who may be in possession of the thing.

No action for the penalty will lie against Brown's assignees. It is in the nature of a criminal prosecution.

v.

Grundy.

*The act gives the United States an election of one of United States two remedies, but not of both. They may proceed in rem, or in personam. Until their election is made, the thing itself is not forfeited, for they may never choose to proceed against the thing, but may prefer the remedy against the person.

They have made their election by proceeding in rem; having failed there, they could not take the other side of the alternative, and sue for its value. The sentence has been submitted to, and is conclusive until reversed.

Suppose the libel had been dismissed because it was not sufficiently proved that Brown had sworn falsely, or that he knew he was swearing falsely, could the United States turn round, and try the same question again, upon an action against Brown for the penalty? Or, after suing Brown for the penalty, and failing to recover judgment against him, could they seize the ship and try the question over again.

A judgment, until reversed, is conclusive as to the subject matter of it. 2 Burr. 1009. Moses v. Macferlan. At common law a forfeiture does not alter the property, until there is some act done by the party claiming the forfeiture, either in pais, or of record.

A forfeiture of lands relates back to the time laid in the indictment; but the forfeiture of goods relates to the time of conviction. In both cases the time must appear of record. Co. Litt. 390. b. 391. a.

In case of deodand, nothing is forfeited until it be found by inquest. So in the case of felo de se, no part of the personal estate is forfeited to the king before the self-murder is found by inquisition. So in the cases of fight, and of goods waived. 1 Hawk. P. C. 101. 104.

The case of Roberts v. Withered, 5 Mod. 193. was decided on the ground that an action of detinue was a process in rem, and equivalent to a seizure.

*Harper, in reply.

1. As to the exclusion of Hackman's testimony. It may, perhaps, be safely admitted that if the testimony has an immediate, direct, and certain effect upon his interest, a man may be excused from testifying. But in the present case it depended upon several contingencies. 1st. Whether Brown's estate would be sufficient to pay the claim of the United

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United States States; 2d. Whether Hackman's certificate would bar the United States, a point not yet decided, and upon which legal opinions differ; 3d. Whether the United States would choose to resort to Hackman until the effects of Brown were exhausted; and, 4th. Whether there would be any surplus of Hackman's estate. The authority from Peake, 132. is not to the point; for he says that the testimony must go to establish a debt against himself, before the witness can be excused from giving it. And the case which he cites from Strange, 406. shows that it is only a matter of indulgence, and not of right, even in such a case: for although the witness was bail in the action, yet if he was a subscribing witness, the Chief Justice said he would oblige him to

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swear.

2. As to the testimony respecting the book.

It was proved that the book was in the hands of the assignee of Hackman, who refused to produce it. We could not issue a subpæna duces tecum, because the book was a private document; and it not being in the possession of the defendants we could not compel them to bring it in under the act of congress. Between a bankrupt and his assignees there is a perfect privity as to all matters of contract and interest. The book, therefore, must be supposed to be in the hands of Hackman; and as the court refused to compel him to testify, or to produce the book, evidence of its contents was the next best evidence in our power. As to this case, it was as if the book had been lost or destroyed. If a subscribing witness to a bond be out of the reach of the process of the court, you cannot compel him to testify, but you may give evidence of his hand-writing.

3. As to the main question.

*The defendants are not sued as assignees. The action is against them in their own right, as having received money to which the United States are entitled. We say that they have taken property of the United States, and sold it, and we are entitled to the money.

The forfeiture of the value is to be recovered of the person who took the oath; but this does not prevent the United States from pursuing such other remedies as they might have had by reason of the forfeiture. If, then, the forfeiture gave the United States the right to the thing, they are entitled to the present remedy.