7 U.S. 337
3 Cranch 337
2 L.Ed. 459
THE UNITED STATES
GRUNDY AND THORNBURGH.
February Term, 1806
ERROR TO THE CIRCUIT COURT OF THE UNITED
STATES FOR THE DISTRICT OF BALTIMORE
Under the Act of Congress of December 31, 1792, which declares “that if a false oath be taken in order to procure a register for a vessel, the vessel or its value shall be forfeited,” the United States has an election to proceed against the vessel as forfeited or against the person who took the false oath for its value. But until that election is made, the property of the vessel does not vest in the United States, and the United States cannot maintain an action for money had and received against the assignees of the person who took the oath and who had become bankrupt, the assignees having sold the vessel and received the purchase money before seizure of the vessel.
Error to the Circuit Court of the United States for the District of Baltimore in an action for money had and received for the use of the United States by the defendants as assignees of Aquila Brown, Jr. a bankrupt, it being money received by the defendants for the sale of the ship Anthony Magin, which ship the United States alleged was forfeited to them by reason that Brown, in
order to obtain a register for her as a ship of the United States, had falsely sworn that she was his sole property when he knew that she was in part owned by an alien.
On the general issue, a verdict was rendered for the defendants, and the plaintiffs took three bills of exceptions.
1. The first stated that they gave in evidence to the jury that on 25 November, 1801, and for several months before and after, Aquila Brown, Jr., a citizen of the United States, and Harman Henry Hackman, a subject of the Elector of Hanover, were co-partners in merchandise, and carried on trade at Baltimore under the firm of Brown & Hackman, and that Brown, at the same time carried on trade at Baltimore on his separate account, under the firm of A. Brown, Jr. That before that day and during the year preceding, the shipAnthony Mangin was built, rigged, and equipped within the United States for the house of Brown & Hackman under a contract made for them and under their authority, and was paid for with their funds, and that on that day Brown applied to the collector for a register for that ship in his own name and as his sole property, and for that purpose took and subscribed the usual oath, which contains an asseveration that he then was the true and only owner of that ship and that no subject or citizen of any foreign prince or state was then directly or indirectly interested therein, or in the profits or issues thereof: whereupon, a register was granted to him in the usual form. That afterwards, and after 28 November, A. Brown, Jr., as well as Brown & Hackman, were declared bankrupts, and their effects severally assigned — the defendants being the assignees of A. Brown, Jr. The plaintiffs, in order to prove that the ship, at the time of taking the oath, was the property of the house of Brown & Hackman and belonged in part to Hackman, an alien, offered Hackman himself as a witness, who objected to being sworn, alleging that he ought not to be compelled to give evidence against his interest. Upon the voir dire he explained his interest thus: that if the plaintiffs should recover in this action, the funds of the estate of Brown would be diminished by the whole amount recovered. That Brown & Hackman had drawn and endorsed bills of exchange to a large
amount which had come to the hands of the United States by endorsement, and he believed himself to be liable therefor in case of failure of the funds of Brown. Whereupon the court was of opinion that he was not a competent witness for the plaintiffs.
2. The second bill of exceptions stated (in addition to the facts contained in the first) that the plaintiffs, in order to prove that at the time of the oath, the ship was the property of Brown & Hackman, offered to swear a witness to prove that in a book purporting to be one of the books of account of Brown & Hackman in the possession of one of the assignees of Hackman, who refused to produce it at the trial, although it was then in his possession, he saw an entry in the handwriting of Hackman purporting to be made on 28 November, 1801, charging the freight of the ship on her then intended voyage to the debit of Brown and to the credit of Brown & Hackman. But the court rejected the evidence as inadmissible for that purpose.
3. The third bill of exceptions (in addition to the facts contained in the former bills) stated that the plaintiffs offered to prove that at the time of Brown’s taking the oath and obtaining the register in his own name, the ship was owned in part by Hackman, an alien, and that Brown knew the fact to be so. That afterwards, and before the bringing of this action, Brown became bankrupt and his effects were assigned to the defendants. That at the time of his bankruptcy and of the assignment, the ship was in his possession, and that by virtue of the assignment, the defendants took her into their possession as part of the estate of Brown and sold her to a certain Thomas W. Norman, for $18,250, which sum they received and at the time of trial had in their possession.
The defendants then gave in evidence that after the sale of the ship to Norman, the United States seized her as forfeited and libeled her in the district court. That Norman filed his claim, and upon proof and hearing the judge dismissed the libel. That no action had ever been instituted by the United States against Brown.
Whereupon the attorney for the United States prayed the court to direct the jury that if it believed the matters
so offered in evidence on the part of the United States, the United States was entitled to recover, in this action the said sum of $18,250, which direction the court refused to give, but instructed the jury that if they believed that any of the matters of fact in the oath of Brown alleged were within his knowledge and were not true, the said evidence given by the plaintiffs was not sufficient in law to maintain the present action.
MR. CHIEF JUSTICE MARSHALL 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, Jr., 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 afterwards 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 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 it 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 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 shall be the will of the legislature. This must depend upon the construction of the statute.
The cases cited from 5th Mod. and 5th Durnford & East are certainly strong case. Whether they can be reconciled to the general principles of English law need not be considered, because the present inquiry respects the construction of an act of Congress, containing words which vary essentially from those used in the acts of the British Parliament, on which those decisions were made.
The question, therefore, does the ship vest absolutely in the United States, so as to make it their property, whether such be the choice of the government or not, or may they elect to reject the ship and proceed for its value, must be decided by the particular words of the act.
The words, taken according to their natural import, certainly indicate that an alternative is presented to the United States.
“There shall be a forfeiture of the ship, or of the value thereof, to be recovered with costs of suit, of the person by whom such oath shall have been made.”
Had a special action on the case been brought against the person by whom the oath was made stating circumstances on which a forfeiture would arise and averring an election on the part of the United States to claim the value, it would be a very bold use of the power of construction which is placed in a court of justice to say that such an action could not be maintained, because the vessel itself was vested in the government, and the value was only given in the event of the vessel being withdrawn from its grasp.
In addition to the obvious and natural import of the words used by the legislature, the opinion that an alternative is given to the government derives some strength from the consideration that the forfeitures are claimed from distinct persons. If the ship be forfeited, she is claimed from all the owners. In an action for the Anthony Mangin, Harman Henry Hackman could not have defended himself by averring his interest in the vessel, and that only the share of Brown was forfeited; but in an action against Hackman for the value, the declaration or information must have averred that he was the person who took the false oath, and proof that it was taken by his partner would not have supported that averment. They are, then, distinct forfeitures, claimed from different persons — the ship from the owners; the value from the particular owner who has taken the false oath.
The United States is entitled to both or to only one of them. A right to both has not and certainly cannot be asserted. If there be a right only to one, the government may elect to take either, but till the election be made, the title to the one is perfectly equal to the title to the other.
It seems to be of the very nature of a right to elect one of two things that actual ownership is not acquired in either until it be elected, and if the penalty of an offense be not the positive forfeiture of a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it would seem to be altering materially the situation in which that person is placed to say that either is vested in him before he makes that choice. If both are vested in him, it is not an election which to take, but which to reject; it is not a forfeiture of one of two things, but a forfeiture of two things, of which one only can be retained.
That the legislature may pass such an act is certain, but that the one under consideration is such an act is not admitted by the Court.
If the property in the vessel was actually vested in the United States by the commission of the offense, then the judgment of a court condemning the vessel
or declaring it to belong to the government would in fact do nothing more than ascertain that the offense had been committed; it would not vest the thing more completely in the government in point of right than it was vested by the commission of the offense. If, notwithstanding the complete ownership of the vessel, which the argument supposes in the government immediately upon the act of forfeiture, and in virtue of that act, a suit for the value might have been maintained, it would seem to follow that a judgment declaring the vessel to be the property of the United States would not bar an action for the value, provided the benefit of that judgment had not been received by the United States. The real principle on which an action for the value can be maintained would seem to be that the ship itself did not belong to the United States in consequence of the false oath, but in consequence of the election to take the ship. If this election be not made, and the government shall elect the value, then the property of the vessel remains in the original owners, and is no obstacle to a suit for the value. But if this opinion be mistaken — if the property in the ship be immediately invested in 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 its judgment was not obtained. In this view of the case, if the court of admiralty had decreed in favor of the United States, and the Anthony Manginhad 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 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 it 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 may wish to consider as its substitute. To carry back 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 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 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 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 respecting them, the judgment of the circuit court is affirmed.