United States v. Grundy & Thornburgh
7 U.S. 337 (1806)

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U.S. Supreme Court

United States v. Grundy & Thornburgh, 7 U.S. 3 Cranch 337 337 (1806)

United States v. Grundy & Thornburgh

7 U.S. (3 Cranch) 337

Syllabus

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

Page 7 U. S. 338

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 ship Anthony 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

Page 7 U. S. 339

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

Page 7 U. S. 340

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.

Page 7 U. S. 349

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