United States v. Grundy. 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 *354] that the United States acquired no *property in the Anthony Mangin, until they 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 cir*355] cumstance *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 defence. The court suggests these difficulties, as probably constituting objections to the action, without deciding on them. The points previously United States v. Grundy. 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 offence. 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. [*356 Judgment affirmed. (a) (a) The opinion of Judge WINCHESTER, in the case of United States v. The Anthony Mangin, Norman, claimant, referred to in the argument, was as follows:1 The libel is grounded on the statute for enrolling and registering ships and vessels. The proceedings being in rem, all the world become parties to the sentence, so far as the right of property is involved; and of course, all persons any wise interested in the property in question are admissible to claim and defend their interests. The libel states the cause of action, with all the averments necessary to support the affirmative allegation, that a forfeiture has accrued. The only claimant intervening in this cause, is T. W. Norman, who alleges himself to be a purchaser bond fide, for a valuable consideration, ignorant of any cause of forfeiture existing at the time of the purchase; and under such purchase, i. e., bona fide, and for valuable consideration, claiming the property as exonerated from the cause of forfeiture alleged, even if the facts stated to sustain the same be true, which he in no wise admits. On these proceedings, several questions of law have been raised and argued by the counsel; and as the great point in the cause does not appear to have ever received, either in this country or Great Britain, any direct judicial determination, I have, with great diligence, examined into the questions, which, from the breaking the cause, I saw must necessarily be involved in the determination. The opinion which I am now to give, though the result of more than usual investigation, is delivered with the diffidence which will ever attend the determination of an inferior court, upon a new, great and important legal question, and which will probably receive, as it ought, the ultimate judgment of the supreme court. It is necessary to keep in different views, the questions of fact in issue, the questions of law arising from those facts, and the parties between whom they arise. It is to be distinctly remembered, that A. Brown, whose wilful perjury is alleged to sustain the forfeiture sued for, is no party to this suit; neither are his assignees, in any shape, parties to this suit, to be directly affected by the judgment. Every consideration, 12 Pet. Adm. 452. United States v. Grundy. therefore, which would support a prosecution against the actual offender, to recover the penalty of his wilful crime, or which might be alleged against those who stand in his situation, as privies in law quoad the forfeiture, must be laid out of the case. The only parties to this case are, the United States and the informant, as libellants, and T. W. Norman, as claimant of the ship. I think it peculiarly necessary to confine my opinion to the state of facts, and the questions of law applying to the parties in court, because it is not necessary for me to decide, whether the assignees of A. Brown are clothed with any of the essential characters of a fair purchaser, or have, so far as relates to the property, any privilege or exemption which Brown himself would not have had; and the question de bona fide emptoris, does arise directly upon Captain Norman's claim, and will determine this case. To that I shall, therefore, immediately proceed. No seizure was made, nor libel filed against the ship, until after Brown's bankruptcy, and a sale by his assignees to the claimant, who is admitted to be an innocent purchaser for a valuable consideration; nor until after he had obtained a new register, in his own name, upon that purchase. It is argued by the libellant's counsel, that Brown was not competent to pass any property to his assignees, nor they, to any purchaser under them, as the forfeiture relates back to vest the property from the time of the false oath, and that the claim of the libellants is paramount to that of the claimant The defendant's counsel argue, in support of his claim, that the relation back to the time of the offence is never admitted, to overreach rights intermediately acquired by third persons. In commenting upon the case from 1 T. R. 252, when the argument was first opened, Mr. Martin pressed very strongly the dictum of Lord KENYON, that if the relation back to the time of an offence was admitted, as to the property, it would, in every case, equally relate to the profits intermediately acquired. If the reason assigned was true, it certainly furnished one of the strongest cases for applying the argument ab inconvenienti, and as such I was forcibly struck with it, when mentioned. The manner in which Lord KENYON is reported to have made this observation, plainly shows it to be the declaration of a sudden impression, and which, though correct as applied to some special cases, is not so in the latitude reported, either at common law, the civil law, or in equity, supported by policy. 1. At common law, even as to the guilty party, no attainder whatsoever has relation, as to the mesne profits of land, but only from the time of the attainder. 3 Bac. 272; Co. Litt. 290 b, 118 a. 2. By the civil law, and the rules of equity adopted from that code, a subsequent possessor is not only not in a worse situation than those from whom he derives his possession, but even in cases where the original possessor might be bound to restore profit, a bona fide possessor is exempt from any such obligation; as in the case of a bona fide purchaser. Bona fide emptor non dubie percipiendo fructus etiam ex re aliena, interim suos facait, non tantum cos qui diligentia et opera ejus proveniunt, sed omnes; quia quod ad fructus attinet loco domini est. Zouch, Q. J. C. 213. 3. It would not be equitable or just, in the abstract, to permit a legal owner to lie by, to avail himself of the ignorance of an innocent holder. And the same considerations of policy, which, in England, permit the offender and his family to enjoy the profits of lands forfeited for treason, which is a strong and acknowledged case of relation to the offence, lest the land should be uncultivated, and the public interest thereby suffer, applies conclusively to every case where it may be doubtful whether the relation is to the offence, or only to the time of conviction. As this reason against relation does not appear to have the force it carried at first view, we must have recourse, 1st. To the principles of decision in analogous cases; in their application, always having regard (as was justly argued by Mr. Harper, on the motion to produce Brown's examination before the commissioners) "that a relation back shall never be admitted to injure the rights of third persons, nor to protect or favor wrong." And, 2d. To the statute under which the forfeiture is claimed in this case. The adjudged cases on this subject, are six classes of offences, which incur a forfeit United States v. Grundy. ure of real estate (2 Bl. Com. 267); and seventeen which produce a forfeiture of personal property (Ibid. 421). In this numerous classification, the principle which governs each description of cases does not materially differ. I have, therefore, selected only, 1st. The cases of outlawry, and attainder of crimes; and (as illustrative of these cases) 2d. Waived goods; 3d. Relation of executions at common law, and since the statute of Charles; and 4th (as involving the general doctrine of this case, and to explain the case of Roberts v. Withered, cited by Mr. Harper, from 5 Mod. 193; Salk. 223), a case of villeinage which governed that decision. 1. Attainder, or conviction of crimes and outlawry. Of this description, there are two classes, which are adjudged to have relation to the time of the offence committed, and overreach all intermediate alienations, treason and felo de se. The case of treason, in which the forfeiture as to land relates to the time of the offence committed, depends upon feudal principles. As the land could not be aliened by the tenant, voluntarily, it would be preposterous to admit that to be done, through the medium of a crime, which could not be done by a lawful act; and the power to sell, introduced by subsequent statutes, is construed as applying only to lawful alienations. The reason assigned in some books, that it shall relate to the offence, "because the indictment contains the year and day when it was done," is by no means true or satisfactory, since that would apply equally to personal property, which, the same books admit, is only affected from the time of the conviction; and the time charged is traversable, even in the case of land, by third persons claiming an interest therein. 5 Bac. Abr. 228; Hale H. P. C. 261, 262; 3 Bac. Abr. 271; Plowd. 488; 8 Co. 170; Hale H. P. C. 264, 270; 3 Inst. 230. It is a proposition universally true, that the forfeiture, upon an attainder of treason, relates but to the conviction, as to chattels, unless the case of the offender killed in resisting, or flight, form an exemption, which may well be doubted. Indeed, says Lord COKE, it hath always been holden, that any one indicted of treason or felony, may bond fide sell any of his chattels, real or personal. 3 Bac. Abr. 271; Perk. 29; 8 Co. 171; Jones v. Ashurst, Skin. 357; 4 Com. Dig. Forfeiture, B. 4; 2 Inst. 48. In the case of a felo de se, it is stated, that the forfeiture has relation to the time of the mortal wound given, so that all intermediate alienations are avoided. 3 Bac. Abr. 272. This is the only case I have ever discovered, in which the doctrine of relation has been so far extended. If the principle of that determination is sound, and it is applicable to other cases, it is a drag-net indeed. It may, perhaps, most correctly be considered as a case sui generis, and neither for the reasons which are assigned to maintain it, nor the doctrine it supports, applicable to other cases. Those who are curious on this subject, will be amused with the argument of Chief Justice DYER, on the drowning of Sir J. Hales, and will, probably, be as much convinced by the reasoning of the Chief Justice, as by the logic of the grave-digger in Hamlet, to prove that the drowning of Ophelia was se defendendo. Plowd. 262. Outlawry subjects the party to forfeitures, which are well known to depend upon the nature of the suit on which they are prosecuted. Without inquiring when an office is necessary, or may be dispensed with by the crown, I shall mention one case, where, even after an outlawry (of which purchasers might always have notice, as it is a matter of record), a fair purchaser was protected, even against the crown. It is from Hardres 101, Attorney-General v. Freeman. A. was outlawed, and afterwards made a lease of his lands, and afterwards these lands, among others, were found by inquisition; and this case was pleaded in bar, to bind the king before the inquisition. The court held, that a lease, or other estate made by the party, after outlawry, and before an inquisition taken, will prevent the king's title, if it be made bona fide, and upon good consideration; but if it be in trust for the party only, it will not be a bar; but that no conveyance whatsoever, made after the inquisition, will take away or discharge the king's title. 5 Bac. Abr. 564; Salk. 395; Carth. 442. These cases are strong to show the general protection afforded by law to fair purchasers, even where the forfeiture is in rem, and the offender is not actually divested of his possession, the necessity of which is directly affirmed in the second description of cases to which I have referred, viz: United States v. Grundy. 2. Waived goods. "As to waived goods, these belong to the king, and are in him without any office, for the property is in nobody. They may belong in like manner to the lord of the manor, by grant, but not by prescription." 5 Bac. Abr. 517; 5 Co. 109. The general principle of these cases is conformable to that quoted by Mr. Harper from 12 Mod. 92, to show that an offence like that charged against Brown, divested the property out of him, and left it, as it were, in abeyance, until suit, which vested the property, by relation, from the act of forfeiture. A position of greater comprehension, or which, as a general one, should embrace the libellant's case, could scarcely be imagined. Waived goods are in the king, without office; that is, even without seizure, the purpose of which, as to legal title to the king, is answered by the office; the property is, as it were, in abeyance; yet this case, so completely applicable in its general principles, contains the strongest possible illustration of the doctrine, that a title by forfeiture, in the case of a personal chattel, begins from suit, seizure or conviction, and has no relation back; for "the owner may at any time retake the goods waived, if they are not seized by the king, or the lord of the manor; for the lord's property begins from the seizure." 5 Bac. Abr. 517; Kitchen 82. This case is conclusive against Mr. Hollingsworth's argument, that this question is a question of property only, since it proves that property only begins from the seizure, which cannot be lawfully made to affect an intermediately vested right of a third person. 3. The relation of executions at common law, and since the statute; considering this case as one between the government and the claimant, from analogy to cases of the king's precedency in execution. By the statute of 33 Hen. VIII., c. 9, it is enacted, that if any suit be commenced or taken, or any process awarded for the recovery of any of the king's debts, then the same suit or process shall be preferred before any person or persons. And as to the king's execution of goods, the same relates to the time of awarding thereof, which is the teste of the writ; as it was in the case of a common person at common law. 2 Bac. Abr. 734. Now, to apply this doctrine to the case before the court, and even admitting to this libel the same extent of relation as is admitted at common law upon the king's execution against personal chattels, and as to real and personal by the above recited statute, will it overreach the sale to Captain Norman? It is generally agreed, that an execution executed, though posterior to the time to which the king's extent relates, bars the king's priority; and in the case of Lechmere v. Thorowgood, 3 Mod. 236, Comb. 123, it was holden, that if the king's extent be sued out posterior to a judgment recovered by the subject, and writ of execution thereon delivered to the sheriff, though not executed, the king shall be postponed, for the property of the goods is changed by the subject's execution. Here, then, we advance one step farther in restricting the doctrine of relation, as it applies to individual interests. It is presumed, that the principles of relation upon executions, since the statute, are too familiar to require any reference to adjudged cases. The case of Roberts v. Withered, as reported by Salkeld, and copied by Bacon, is in these words: By the act of navigation, 12 Car. II., c. 18, certain goods are prohibited to be imported here, under pain of forfeiting them, one part to the king, another to him or them that will inform, seize or sue for the same." It was adjudged, that, in this case, the subject may bring detinue for such goods; as the lord may have replevin for the goods of his villein distrained; for the bringing of the action vests a property in the plaintiff. When this case was first referred to by Mr. Harper, I considered, as I believe he and the other counsel did, that it came nearer to the case before the court than any which occurred in their researches. On a careful examination of that case, I now think, it will be found not to bear on the point now to be decided. In the first place, it may be observed, that the case, as reported, does not afford any ground to presume, that any other person than he who unlawfully imported the goods was interested in that suit; but on the contrary, it is presumable, that it was a suit against the original importer. In that case, the question of relation could not have arisen, since it was utterly unimportant to the plaintiff and to the defendant, whether the plaintiff recovered by a title which related to his writ, or to the time of the importation. And further, it is |