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
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
Page 7 U. S. 350
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
Page 7 U. S. 351
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.
Page 7 U. S. 352
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
Page 7 U. S. 353
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
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 vest.
It seems, then, to be the necessary construction of the act of
Congress that the United States acquired no
Page 7 U. S. 354
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
Page 7 U. S. 355
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.
Page 7 U. S. 356
Without declaring any opinion respecting them, the judgment of
the circuit court is affirmed.
Judgment affirmed.
