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U.STATES otherwise the offender would go unpunished, and it is

compared to the case of flight after felony. Now admit. 1960 BAGS ting that this is a solid reason, and a sufficient founda

tion 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.

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 for. feiture 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 for. feiture 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. Powd. 264 ; and I find that lord Hale (1 Fale, P. C. 414 ) expresses great doubt whether, for all purposes, the relation could be carried back to the stroke which occasionrd 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, notwithstan ling, 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. II. Relation, 31. But it has been argued that admitting th rule that the forfeiture of goods and chattels in general relates back to the time of conviction, yet it is inapplicable to a case where a specific thing is declared forfrited by law, for in such case the corpus delicti attaches to the thing in whose hands soever it may come; and the case of eodand, put by counsel, in Plowden, 262, is cited in illustration. “If my horse strike a man,

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6 and afterwards I sell my horse, and after that the U. STATES
s 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 Huwk. P. C. ch. 26, 57, and in terms OF
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 mo-
ment the act was done, said, “ it may be so as to some

purposes, as to prevent intermediate alienations and
s 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 ex-
ists in the Lord, it is not perfeeted by seizure so as to
over-reach 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 ex-
ample 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 bor-
rowed from the feudal tenures, because they were go-
verned 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 rest-
ed before the alienation, a subsequent seizure will not
avoid such alienation if made bona fide, it is directly ap-
plicable to the case at bar.

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V. STATES 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 na

- tional 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, 6 the custom not being paid, yet the king's title is not complete, till he hath judgment of record to ascertain his s title, for otherwise there would be endless suits and 66'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 saizure would not be sufficient to fix the title in the king; but it must be consummated by a judgment of record.

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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 Leod 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 bardly 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.

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, 1



Ld: Ray. 305. Salk. 395. 12 Mod. 176. And the re- v. STATES lation does not extend beyond the time of the commencement 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 le bas certainly offi red cogent reasons in support of that opinion. But after a diligent exainination of the authorities cited by him, I am well satisfied that the point has never been solemnly adjudged, and must now be decided upon principle.

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 liep. 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 asljudged 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 66 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 ac

tual validity.

U. STATES Looking to the vast extent of commercial transfers, V.

the favor with which navigation and trade are fostered 1960 bags in modern times, and the extreme difficulty of ascer

taining latent defects of titl, 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.


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 uli ate application to domestic use. Yet such a position would strike us all as monstrogs. 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 forfciture 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 t ust 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.

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