V.

Grundy.

United States the government, notwithstanding which the value may be claimed, the court cannot distinctly perceive why the same action might not be maintained, notwithstanding the declaration of a court that the property was in the United States, provided the benefit of their judgment was not obtained. In this view of the case, if the court of admiralty had decreed in favour of the United States, and the Anthony Mangin had been destroyed before the benefit of that judgment had been received, the person who had taken the false oath might still have been sued for the value. This would never be contended; and yet if the absolute ownership of the vessel by the United States does not preclude a right to sue for the value before a judgment be rendered, there is some difficulty in discerning when it will preclude that right. In fact, the idea that one of two things is actually vested in government by an act to which forfeiture is attached, seems incompatible with the idea of a right to elect which of two things shall

*354

vest.

It seems, then, to be the necessary construction of the act of congress that the United States acquired no *property in the Anthony Mangin until they elected to pursue that part of the alternative given by the statute. Of consequence, the money for which that vessel was sold, was not, at the time, received for the use of the United States; but for the use of the creditors of the bankrupt.

To decide finally on the propriety of supporting the claim of the United States, as made in this action, under that branch of the statute which forfeits the vessel, another question still remains to be investigated. Has the doctrine of relation such an influence upon this case, that an election subsequent to the sale shall carry back the title of the United States to the commission of the act of forfeiture, so as by this fiction of law to make them the real owners of the vessel at the time of sale, and, consequently, of the money for which she was sold?

Without a critical examination of the doctrine of relation, it would seem to be a necessary part of that doctrine, that the title to a thing which is to relate back to some former time, must exist against the thing itself, not against some other thing which the claimant

V.

Grundy.

may wish to consider as its substitute. To carry back United States the title to the Anthony Mangin to the act of forfeiture, the title to the Anthony Mangin must have an actual existence. If no such title exists, then the right to elect the vessel is lost, and the statute has not forfeited the money for which she was sold in lieu of her. Suppose, instead of being sold by the defendants, she had been exchanged by Aquila Brown himself for another ship, would that other ship have been forfeitable, by the doctrine of relation, in lieu of the Anthony Mangin? Clearly not; for the statute gives no such forfeiture. The forfeiture attaches to the thing itself, not to any article for which the thing may be exchanged.

The court will not inquire whether an action on the case against Grundy & Thornburgh, for money had and received to the use of the United States, be a proper action in which to establish a forfeiture for a fact committed by Aquila Brown. But some objections to it may be stated which deserve consideration. It certainly gives no notice of the nature of the claim, a circumstance *with which, in a case like this, the ordinary rules of justice ought not to dispense. It asserts a claim founded on a crime yet remaining to be proved, not against the person who has committed that crime, or against him who possesses the thing which is liable for it, but against those who, though the assignees of the effects, are not the assignees of the torts committed by the bankrupt. It may change the nature of the defence.

The court suggests these difficulties as probably constituting objections to the action, without deciding on them. The points previously determined show that it is not maintainable in this case, under that alternative of the statute which subjects the vessel to forfeiture.

It remains to be inquired whether it can be maintained under the provision which gives a right to sue for

the value.

Upon this part of the case no doubt was ever entertained. Not only must the declaration specially set forth the facts on which the right of the United States accrued, and the law which gives their title, but the action must be brought against the person who has committed the offence. Discarding those words which

* 355

V.

Grundy.

United States relate to other objects, and reading those only on which the claim to the value is founded, the statute enacts, that "in case any of the matters of fact in the said oath alleged which shall be within the knowledge of the party so swearing, shall not be true, there shall be a forfeiture of the value of the vessel, in respect to which the same shall have been made, to be recovered, with costs of suit, of the person by whom such oath shall have been made." It certainly requires no commentary on these words to prove that an action for the value can only be supported against the person who has taken the oath.

* 356

It being the opinion of the court that this action is not maintainable under any proof offered by the plaintiffs, it was deemed unnecessary to inquire whether the other exceptions in the record be well or ill' founded. *Without declaring any opinion respecting them, the judgment of the circuit court is affirmed.

Judgment affirmed.(a)

(a) The opinion of Judge Winchester, in the case of The United States v. The Anthony Mangin, Norman, claimant, referred to in the argument, was as follows:

The libel is grounded on the statute for enrolling and registering ships and vessels.

The proceeding being in rem, all the world become parties to the sentence, as far as the right of property is involved; and of course, all persons any wise interested in the property in question are admis. sible to claim and defend their interests.

The libel states the cause of action, with all the averments necessary to support the affirmative allegation, that a forfeiture has accrued.

The only claimant intervening in this cause, is T. W. Norman, who alleges himself to be a purchaser bona fide, for a valuable consideration, ignorant of any cause of forfeiture existing at the time of the purchase; and under such purchase, i. e. bona fide, and for valuable consideration, claiming the property as exonerated from the cause of forfeiture alleged, even if the facts stated to sustain the same be true, which he in no wise admits.

On these proceedings, several questions of law have been raised and argued by the counsel; and as the great point in the cause does not appear to have ever received, either in this country or Great Britain, any direct judicial determination, I have, with great diligence, examined into the questions, which, from the breaking the cause, I saw must necessarily be involved in the determination.

The opinion which I am now to give, though the result of more than usual investigation, is delivered with the diffidence which will ever attend the determination of an inferior court, upon a new, great

*THE MARINE INSURANCE COMPANY OF ALEXANDRIA v. JOHN AND JAMES H. TUCKER.

ERROR to the circuit court of the district of Columbia.

If a vessel be insured "at and from

to

This was an action of covenant, by John and James Kingston, in H. Tucker, on a policy of insurance, dated September Jamaica, 1st, 1801, upon the sloop Eliza, at and from Kingston, and take in in Jamaica, to Alexandria, in Virginia.

Alexandria,"

a cargo at Kingston, for Baltimore and

and sails with

and important legal question, and which will probably receive, as it Alexandria, ought, the ultimate judgment of the supreme court. It is necessary to keep in different views, the questions of fact in intent to go issue, the questions of law arising from those facts, and the parties first to Baltibetween whom they arise.

more, and from thence to Al

It is to be distinctly remembered, that A. Brown, whose wilful per- exandria, and, jury is alleged to sustain the forfeiture sued for, is no party to this before she arsuit; neither are his assignees, in any shape, parties to this suit, to rives at the be directly affected by the judgment. Every consideration, therefore, dividing point, which would support a prosecution against the actual offender, to re- is captured; it cover the penalty of his wilful crime, or which might be alleged is a case of inagainst those who stand in his situation, as privies in law quo ad the tended deviaforfeiture, must be laid out of the case.

tion only, and

ception of the voyage insured. It de

The only parties to this suit are, the United States and the inform- not of non-inant, as libellants, and T. W. Norman, as claimant of the ship. I think it peculiarly necessary to confine my opinion to the state of facts, and the questions of law applying to the parties in court, be- pends upon cause it is not necessary for me to decide whether the assignees of the particular A. Brown are clothed with any of the essential characters of a fair circumstances purchaser, or have, so far as relates to the property, any privilege or of the case, exemption which Brown himself would not have had; and the ques- whether, tion de bona fide emptoris, does arise directly upon Captain Norman's the vessel be claim, and will determine this case. To that I shall, therefore, im- captured and mediately proceed. recaptured, the loss shall

if

No seizure was made, or libel filed against the ship, until after be deemed toBrown's bankruptcy, and a sale by his assignees to the claimant, who tal or partial. is admitted to be an innocent purchaser for a valuable consideration; nor until after he had obtained a new register, in his own name, upon that purchase.

It is argued by the libellants' counsel, that Brown was not competent to pass any property to his assignees, nor they to any purchaser under them, as the forfeiture relates back to vest the property from the time of the false oath, and that the claim of the libellants is paramount to that of the claimant.

The defendant's counsel argue, in support of his claim, that the relation back to the time of the offence is never admitted to overreach rights intermediately acquired by third persons.

In commenting upon the case from 1 D. & E. 252. when the argument was first opened, Mr. Martin pressed very strongly the dic VOL. III.

Un

Mar. Ins. Co. of Alexandria

V.

Tucker.

*The defendants pleaded, 1st. That the vessel never sailed on the voyage insured, and was not prosecuting the voyage insured at the time of the capture;

tum of Lord Kenyon, that if the relation back to the time of an offence was admitted as to the property, it would, in every case, equally relate to the profits intermediately acquired. If the reason assigned was true, it certainly furnished one of the strongest cases for applying the argument ab inconvenienti, and as such I was forcibly struck with it when mentioned.

The manner in which Lord Kenyon is reported to have made this observation plainly shows it to be the declaration of a sudden impression, and which, though correct as applied to some special cases, is not so in the latitude reported, either at common law, the civil law, or in equity supported by policy.

1. At common law, even as to the guilty party, no attainder whatsoever has relation, as to the mesne profits of land, but only from the time of the attainder. 3 Bac. 272. Co. Lit. 290. b. 118. a.

2. By the civil law, and the rules of equity adopted from that code, a subsequent possessor is not only not in a worse situation than those from whom he derives his possession, but even in cases where the original possessor might be bound to restore profit, a bona fide possessor is exempt from any such obligation; as in the case of a bona fide purchaser. Bona fide emptor non dubie percipiendo fructus etiam ex re aliena, interim suos faciat, non tantum eos qui diligentia et opera ejus proveniunt, sed omnes; quia quod ad fructus attinet loco domini est. Zouch, 2. J. C. 213.

3. It would not be equitable or just in the abstract, to permit a legal owner to lay by, to avail himself of the ignorance of an innocent holder. And the same considerations of policy, which in England permit the offender and his family to enjoy the profits of lands forfeited for treason, which is a strong and acknowledged case of relation to the offence, lest the land should be uncultivated, and the public interest thereby suffer, applies conclusively to every case where it may be doubtful whether the relation is to the offence, or only to the time of conviction.

As this reason against relation does not appear to have the force it carried at first view, we must have recourse,

1st. To the principles of decision in analogous cases; in their application, always having regard (as was justly argued by Mr. Har per, on the motion to produce Brown's examination before the commissioners) "that a relation back shall never be admitted to injure the rights of third persons, nor to protect or favour wrong." And,

2d. To the statute under which the forfeiture is claimed in this

cause.

The adjudged cases on this subject, are six classes of offences, which incur a forfeiture of real estate; 2 B. C. 267. and seventeen which produce a forfeiture of personal property; 2 B. C. 421. In this numerous classification, the principle which governs each description of cases does not materially differ. I have, therefore, selected only,

1st. The cases of outlawry, and attainder of crimes; and, (as illustrative of these cases,)

2d. Waived goods.