ure, 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 consideration, without notice. It does not bar the remedy in personam.

P. B. Key and Martin, contra.

The statute of 12 Car. II, has stronger expressions to show that a sentence of condemnation was necessary to vest the property. Its words are, "under the penalty of forfeiture of ship and goods, one moiety to his majesty, and the other moiety to him or them that shall inform, seize, or sue for the same." Our statute is not only silent as to the mode of recovery, whether by information, seizure, or suit, but contains the words "or the value thereof," (which the British statute does not,) and, therefore, recognizes any mode of recovery by which that value can be obtained.

It is not unworthy of remark, that vessels are, by the act of 1790, rendered liable to forfeiture in three cases, 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 torfeiture 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.

1. As to the rejection of Hackman, as a wit

ness.

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 [*344 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 plaintiff's might have had a subpoena 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 assignees of Brown had sold and delivered her to a third person.

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 forfeit

debt for the penalty, or a special action on the case, grounded upon the statute, and averring States to recover. every matter necessary to entitle the United

*The right of the United States to the [*345 4th section, which declares the forfeiture and property depends upon the act of 1792. The 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. It is not grounded on a crime or a tort.

*Harper, in reply.

[*347

1. As to the exclusion of Hackman's testimony.

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.

346*] *The act gives the United States an election of one of 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 flight, 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.

cused 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 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

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 subpœna 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 as- [*348 signees. 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.

The question is, at what time did the property vest in the United States by reason of the forfeiture?

The case in 5 T. R. refers to, and recognizes, the law as decided in Roberts v. Withered, in 5 Mod. The decision there was, that by the illegal act of the party the property was devested out of him. The doctrine of abeyance does not exist in any case: it has been laughed out of existence. The property must be somewhere. If it does not vest in a private owner, it goes to the sovereign, or to the government. If devest

ed out of the owner, it goes eo instanti to the person to whose use it is forfeited. When the forfeiture accrues to a private person, he must do some act to entitle himself. But not so in the case of the king; it vests in him immediately. He is not bound to do any act. In the case of Roberts, qui tam, v. Withered, 5 Mod. the right of the informer did not accrue till the action brought; but the whole had gone to the king by the forfeiture. The offense devests the property, but it is not vested in an informer until action brought. In the mean time it is in the king. The informer's right only vests by

action.

There is a difference between a forfeiture by statute, and a forfeiture by common law. The common law says, the king shall have it if he will. But the statute says, it shall absolutely vest in the king. By the statute, the king, speaking by the legislature, has determined his will. He has made his election to have the thing. But the statutory remedy does not take away the common law remedy: it is cumulative. The United States are not obliged to resort to the statutory remedy.

349*] But it is said that the United States had an election, and that no right to the thing vested until they made their election. We may admit it; but we say we have elected the present remedy.

It

Admit that we elected to seize the vessel. had escaped: it was gone out of our power. It was still an election, and we are now proceeding in an action for its value. The election will relate back. We have the whole three years to make the election. If we pass the three years, the property goes back to the former owner.

The value is not to be considered as a penalty, but as a debt. We might have brought detinue or trover for the ship, instead of an action for the value, or a seizure.

We admit the sentence cannot be inquired into; but it does not affect the present question. The decision was not on the point of the forfeiture.

February 22. MARSHALL, Ch. J., delivered, the opinion of the Court.

This action is brought to recover money, received by the defendants, for a ship sold by them as the assignees of Aquila Brown, a bankrupt: which ship is considered, in this cause, as having been liable to forfeiture, under the "act for registering and recording ships or vessels." It is founded on the idea that, at the time of sale, the ship was the property of the United States, in virtue of the act of forfeiture which had been committed, and of the proceedings of the United States in consequence of that act.

It appears that in 1801 Aquila Brown, Jun., then carrying on trade in his own name, in Baltimore, obtained a register for the Anthony Mangin, as his sole property; having first taken the oath which the law requires, to enable him to obtain such register. He afterward became a bankrupt, and the Anthony Mangin passed, with his other effects, to his assignees, who sold her for the money now claimed by the United 350*] States. After this sale, facts were discovered, inducing the opinion that a certain Harman Henry Hackman, a foreigner, was part owner of the vessel, a circumstance within the knowledge of Aquila Brown; and upon this ground she was seized and libeled in the court

of admiralty. By the sentence of that court, the libel was adjudged not to be supported, and was dismissed. It is agreed, and is so stated in the reasoning of the judge, which accompanied his opinion, that this sentence was not intended to decide the question of forfeiture; but was founded on the alienation of the vessel before the forfeiture was claimed. Acquiescing in this decision the United States brought the present action. At the trial the judge instructed the jury that this action was not maintainable, although they should be of opinion that the fact alleged in the oath, which was taken to obtain the register, was untrue within the knowledge of the person taking the oath. To this instruction an exception was taken; and upon that, among other points, the cause comes into this court.

The words of the act under which the right of the United States accrues are: "And in case any of the matters of fact in the said oath or affirmation alleged, which shall be within the knowledge of the party so swearing or affirming, shall not be true, there shall be a forfeiture of the ship or vessel, together with her tackle. furniture and apparel, in respect to which the same shall have been made, or of the value thereof, to be recovered, with costs of suit, of the person by whom such oath or affirmation shall have been made."

The question made at the bar is, whether, by virtue of this act, the absolute property in the ship or vessel vests in the United States, either in fact or in contemplation of law, on the taking of the false oath; or remains in the owners until the United States shall perform some act, manifesting their election to take the ship and not the value.

So far as respects this question, the effect of the sentence in the court of admiralty is put out of the case, for the court has not decided what the effect of that sentence will be.

It has been proved, that in all forfeitures accruing at common law, nothing vests in the government until *some legal step shall be [*351 taken for the assertion of its right, after which, for many purposes, the doctrine of relation carries back the title to the commission of the offense; but the distinction, taken by the counsel for the United States, between forfeitures at common law, and those accruing under a statute, is certainly a sound one. Where a forfeiture is given by a statute, the rules of the common law may be dispensed with, and the thing forfeited may either vest immediately, or on the performance of some particular act, as shall be the will of the legislature. This must depend upon the construction of the statute.

The cases cited from 5 Mod. and 5 Durnford

Whether

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 355*] 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 defense.

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

1. 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 admissible 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 I 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 and important legal question, and which will probably receive, as it ought, the ultimate judgment of the Supreme Court.

It is necessary to keep in different views, the questions of fact in issue, the questions of law arising from those facts, and the parties between whom they arise.

It is to be distinctly remembered, that A. Brown, Cranch 3. VOL. 2.

this case, under that alternative of the stat ute 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 titles, but the action must be brought against the person who has committed the offense. Discarding those words which 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. 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 respect-[*356 ing them, the judgment of the circuit court is affirmed.

Judgment affirmed.1

whose willful perjury is alleged to sustain the forfeiture sued for, is no party to this suit; neither are his assignees, in any shape, parties to this suit, to be directly affected by the judgment. Every consideration, therefore, which would support a prosecution against the actual offender, to recover the penalty of his willful crime, or which might be alleged against those who stand in his situation, as privies in law quo ad the forfeiture, must be laid out of the case.

The only parties to this suit are, the United States and the informant, 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, because it is not necessary for me to decide whether the assignees of A. Brown are clothed with any of the essentials characters of a fair purchaser, or have, so far as relates to the property, any privilege or exemption which Brown himself would not have had; and the question de bona fide emptoris, does arise directly upon Captain Norman's claim, and will determine this case. To that I shall, therefore, immediately proceed.

No seizure was made, or libel filed against the ship, until after Brown's bankruptcy, and a sale by his assignees to the claimant, who 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 re'ation back to the time of the offense 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 30 465