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U. STATES otherwise the offender would go unpunished, and it is compared to the case of flight after felony. Now admit1960 BAGS ting that this is a solid reason, and a sufficient foundation for a legal adjudication, it may well be doubted if COFFEE. the doctrine, or the decision, in Plowden, required the forfeiture to relate back further than the death of the party.

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The case was that sir James Hales, the offender, was joint-tenant with his wife of a term of years; and the question made was whether after inquisition the forfeiture should not relate back so as to over-reach the right of survivorship which accrued to the wife.

Now one of the judges (Weston) held that the forfeiture should only have relation to the death, at which time the title of the wife accrued; yet in this concourse of titles, the king's title by prerogative should be preferred. Plowd. 264; and I find that lord Hale (1 Hale, P.C. 414) expresses great doubt whether, for all purposes, the relation could be carried back to the stroke which occasioned the death. Be this case as it may, it is the only exception to the general doctrine; and inter apices juris; a case so unjust as that which robbed an unfortunate woman not only of the moiety which vested in her by survivorship from her husband, but of the other moiety absolutely vested in her by grant, I am glad to find is a judicial anomaly.

I have said that the case of a felo de se forms the only exception to the general rule. There are authorities to show that in case of flight for felony, the forfeiture, after it is found by inquisition, verdict, or indictment, relates back to the time of the flight so as to avoid all mesne acts. Rex v. Wendman, Cro. Jac. 82. But I think the better opinion, notwithstanding, is that it relates only to the time of finding the flight. Co. Lit. 390. Staund. P. C. 192, 5 Co. 109, b. Bro. Forfeiture des terres, 119. Id. Relation, 31. But it has been argued that admitting the rule that the forfeiture of goods and chattels in ge neral relates back to the time of conviction, yet it is inapplicable to a case where a specific thing is declared forfeited by law, for in such case the corpus delicti attaches to the thing in whose hands soever it may come; and the case of ceodand, put by counsel, in Plowden, 262, is cited in illustration. "If my horse strike a man,

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"and afterwards I sell my horse, and after that the U. STATES "man dies, the horse shall be forfeited." I do not find any authority to support this position, although it is 1960 BAGS cited as law in 1 Hawk. P. C. ch. 26, § 7, and in terms de la ley, deodand. It seems a peculiar case growing COFFEE. out of the avarice of the church and the superstition of the layity in ancient times. The distinction seems also countenanced by the Court in Lockyer v. Offley, 1 T. R. 252. The counsel for the Plaintiff there argued that the ship was forfeited the moment the smuggling was committed, even though she had afterwards come into the hands of a bona fide purchaser; and Mr. justice Willes in delivering the opinion of the Court, in alluding to the argument that the forfeiture attached the moment the act was done, said, “it may be so as to some "purposes, as to prevent intermediate alienations and “incumbrances." To be sure this expression carries with it a pretty strong implication; but in the same case, returning to the argument, the same learned judge sa s," I do not know that it has been ever so decided"it may depend upon circumstances, such as length of

possession, laches in seizing or other matters." And the decision of the Court went ultimately upon other grounds. I must, therfore, consider the authority as not fairly extending to this point, and indeed as rather leaning the other way. On the other hand, the case of Lord and villain has been cited from Co. Lit. 118, § 117, to show that even where a right to seize property exists in the Lord, it is not perfeeted by seizure so as to over-rcach prior alienations; for until seizure it is said that he has neither jus in re, nor jus ad rem, but a mere possibility. And the conclusion drawn from this example is not materially affected by the consideration that a contrary doctrine prevails in the case of the sovereign, (Id. § 118) because the reason assigned is perfectly consistent with it; viz. that the property is in the sovereign before any seizure or office. I do not think much reliance can be placed upon analogies borrowed from the feudal tenures, because they were governed by peculiar and technical niceties, the reasons of which have long since ceased, and perhaps cannot now be well understood. But if the principle of the case put be that where the absolute property is not vested before the alienation, a subsequent seizure will not avoid such alienation if made bona fide, it is directly applicable to the case at bar.

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I have already endeavored to show that the absolute property did not vest in the United States until seizure; 1960 BAGS and I think it would be a bold assertion that the United States could, before such seizure, have conveyed the COFFEE. property to a purchaser, or have clothed it with a national character. I consider a passage in lord Hale's treatise on the customs as corroborating the view which I have already taken of this case. He says, "Though "a title of forfeiture be given by the lading or unlading, "the custom not being paid, yet the king's title is not "complete, till he hath judgment of record to ascertain his "title, for otherwise there would be endless suits and "vexations; for it may be ten or twenty years hence "that there might be a pretence of forfeiture now in"curred." Harg. Law tracts, 226. According to lord Hale even seizure would not be sufficient to fix the title in the king; but it must be consummated by a judgment of record.

But the point of difficulty is to decide whether the United States had not such an inchoate title as, connected with a subsequent seizure, would, by a retroactive effect, defeat the intermediate purchase. Now it is precisely in this view that the case of villain may admit an unfavorable distinction; for until seizure the Lord has not even an inchoate title, but a mere possibility. And though the property is in the like case of the Sovereign said to be in him without seizure or office, yet I apprehend the title is not consummate until seizure or office; for until that time it could hardly be held that a purchaser under the villain, or even the villain himself had a tortious possession and use of the property. The case of villenage then, even supposing it to apply, does not go quatuor pedibus with the present. The case of Attorney General v. Freeman, Hard. 101, has also been relied on by the Claimant. In that case the party, after outlawry and before inquisition, made a bona fide lease of his lands; and it was held that the forfeiture did not over-reach the title of the purchaser.

But I do not think that much reliance can be placed on this case, because it turned on a settled distinction that until inquisition the king has no title in the real chattels or freeholds of the outlaw; but in personal chattels the title is in the king without inquisition,

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12 Mod. 176.

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Ld. Ray. 305. Salk. 395. And the re- U. STATES lation does not extend beyond the time of the commence- บ. ment of the title. The case of the Anthony Mangin, 3 1960 BAGS Crunch, 356, n. before Mr. justice Winchester, is the only other authority that I recollect, which has been COFFEE. thought materially to bear upon the question, I entertain the most entire respect for the opinions of that truly able and learned judge: and although the decision of that case did not rest upon the present question, it is but justice to acknowledge that it has thrown great light on the subject, and enabled us all to meet the stress of this cause with more certainty than could otherwise have been done. It was very clearly the opinion of the learned judge that a seizure did not relate back to the time of forfeiture so as to over-reach an intermediate bona fide conveyance; and he has certainly offered cogent reasons in support of that opinion. But after a diligent examination of the authorities cited by him, I am well satisfied that the point has never been solemn. ly adjudged, and must now be decided upon principle.

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It seems to be a rule founded in common sense, as well as strict justice, that fictions of law shall not be permitted to work any wrong, but shall be used ut res magis valeat quam pereat, 3 Rep. 28, b. and this rule, so equitable in itself, seems recognized in the common law. 13 Rep. 21. 2 Vent. 200. And in respect to the doctrine of relation, this rule has been admitted in its fullest extent in civil cases. Bro. Relation, 18. 1 H. 7, 17. Bro. Debt, 139. 6 Rep. 76, b. 3 Rep. 28. b. For it has been repeatedly adjudged that relations shall never work an injury, "and shall never be strained to "the prejudice of a third person who is not a privy or "a party to the act:" and further, that in destruction "of a lawful estate vested, the law will never make any "fiction." 3 Rep. 29. 2 Vent. 200.

It is true, as we have already seen, that a different rule prevails as to forfeitures of lands in treason and felony, founded probably on feudal principles, or the barbaric character of the times; yet even as to cases of treason and felony a striking distinction is admitted in favor of goods and chattels; and mesne acts before conviction or inquisition are suffered to retain their actual validity.

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Looking to the vast extent of commercial transfers, the favor with which navigation and trade are fostered 1960 BAGS in modern times, and the extreme difficulty of ascertaining latent defects of title, it seems difficult to resist COFFEE. the impression that the present is a case which requires the application of the milder rule of the law.

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If the principle contended for by the government be admitted in its full extent, it will be found very difficult to bound it. A bale of goods which is once contaminated with a forfeiture will retain its noxious quality through every successive transfer, even until it has assumed under the hands of the artizan its ultimate application to domestic use. Yet such a position would strike us all as monstrous. If we say that the forfeiture shall cease with the change of the identity of the whole package, as such, still an intrinsic difficulty remains. The object of the government would be completely evaded by the offender, and the innocent purchaser would sink under the pressure of frauds which he could never know, nor by diligence avert.

On the whole I have come to the result, not however without much diffidence of my own opinion, that a forfeiture attached to a thing, conveys no property to the government in the thing, until seizure made or suit brought. That previous to that time the owner has the exclusive right of possession and property, though the government may be considered as having an inchoate title, or possibility. That against the offender or his representatives, upon seizure or suit, the title by operation of law relates back to the time of the offence so as to avoid all mesne acts; but as to a bona fide purchaser for valuable consideration and without notice of the offence, the doctrine of relation does not apply so as to divest his legitimate title.

Considering, as I do, that this question is of very great importance, I trust that it will receive the decision of the highest tribunal; and I shall not feel humbled, if upon better examination a different doctrine shall prevail by the judgment of that Court. I do therefore adjudge and decree that the decree of the District Court in the premises be affirmed.