The United States v. Grundy and Thornburgh

• Decision Date: 01 February 1806
• Parties: THE UNITED STATES v. GRUNDY AND THORNBURGH
• Court: U.S. Supreme Court

7 U.S. 337

3 Cranch 337

2 L.Ed. 459

THE UNITED STATES v. GRUNDY AND THORNBURGH.

February Term, 1806

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, jun. 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 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 the 25th of November, 1801, and for several months before and after, Aguila Brown, jun. a citizen of the United States, and Harman Henry Hackman, a subject of the elector of Hanover, were copartners in merchandize, and carried on trade at Baltimore, under the firm of Brown and Hackman, and that Brown, at the same time carried on trade at Baltimore on his separate account, under the firm of A. Brown, jun. 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 and 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 the 28th day of the same November, A. Brown, jun. as well as Brown and Hackman, were declared bankrupts, and their effects severally assigned—the defendants being the assignees of A. Brown, jun. The plaintiffs, in order to prove that the ship, at the time of taking the oath, was the property of the house of Brown and 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 and Hackman had drawn and indorsed bills of exchange to a large amount, which had come to the hands of the United States by indorsement, 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 and Hackman, offered to swear a witness to prove that in a book, purporting to be one of the books of account of Brown and 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 hand-writing of Hackman, purporting to be made on the 28th of November, 1801, charging the freight of the ship, on her then intended voyage, to the debit of Brown, and to the credit of Brown and 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 dollars, 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 libelled her in the district court. That Norman filed his cliam, 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 they believed the matters so offered in evidence on the part of the United States, the United States were entitled to recover, in this action, the said sum of 18,250 dollars, 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.

Breckinridge, Attorney-General of the United States.

The great question in this cause is, whether the property of the ship Anthony Mangin, vested in the United States, upon the commission of the act of forfeiture by Brown, without a sentence of condemnation.

This action is founded on the act of December 31st, 1792, 'for registering and recording of ships and vessels.' Laws U. S. vol. 2, p. 135. We contend that under the 4th section of this act, no sentence of condemnation was necessary to vest the property in the United States. This section, after stating the nature of the oath required in order to obtain a register of the ship, says, 'And 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 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 shall have been made.'

A forfeiture by statute is analagous to a forfeiture at common law. At the common law, by an outlawry, the property of the outlaw immediately vests in the crown without office found. Co. Lit. 128. (b.)

The English court, upon the statute of 12 Car. 2, c. 18, which creates forfeitures very similar to those of our statute, have decided that by the act of forfeiture, the property is so completely divested from the owner and vested in the crown, that detinue can be maintained for it. 5 Mod. 193, Roberts v. Withered. Comb. 361. S. C. 12 Mod. 92. S. C. 1 Salk. 223. S. C. And Rookby J. said 'the property is divested out of the owner, by importation but not vested in him that sues until bringing the action, or seizure.' That case has been recognised and made the ground of decision in a late case. 5 T. R. 112, Wilkins v. Despard. These cases decide that the right to recover either the specific goods, or their value, does necessarily give to the court the right to determine the question of forfeiture.

If the right of the United States was only inchoate at the commencement of the suit, the judgment in this case would have completed it as effectually as a sentence of condemnation. The United States might have proceeded either in rem, or for the value of the ship. They might either seize and libel the ship, or sue the person.

In the case of seizure of a ship under the act of August 4th, 1790, Laws U. S. vol. 1, p. 237, there must be a prosecution in conformity with the regulations of the 67th section of that act; and an important question arises, whether we are thereby prevented from proceeding in personam for the value of the thing forfeited. We contend, that we may proceed either way; for of what use are the words 'or the value thereof,' if the recovery must be by seizure and condemnation? The words being in the alternative, leave us that option. In Roberts v. Withered, it is said, 'that though some persons proceed by way of information upon forfeitures, yet actions of detinue will, nevertheless, lie.' 5 Mod. 194. Suppose the act had declared, that the party shall forfeit 1,000 dollars, would not an action lie for this money?

But admitting that the act of 1790 requires a sentence of condemnation to vest the right in the United States, we contend, that the 29th section of the act of December 31, 1792, under which the present action is brought, does not. Laws U. S. vol. 2, p. 157.

Although it refers to the act of 1790, it is only for the purpose of designating the courts in which the recovery is to be had; and to the manner of disposing of the forfeiture. It has no reference to the kind of suit, or to the manner of proceeding, to effect the recovery of the object. The words of the 29th section are, 'That all penalties and forfeitures which may be incurred, for offences against this act, shall and may be sued for, prosecuted, and recovered, in such courts, and be disposed of in such manner, as any penalties and forfeitures which may be incurred for offences against the act (of 1790) may legally be sued for, prosecuted, recovered and disposed of.'

The statute of 12 Car. 2, has stronger expressions to show, that a sentence of condemnation was necessary to vest the property. Its words are, 'under the penalty of forfeiture of ship and goods, one moiety to his majesty, and the other moiety to him or them that shall inform, seize, or sue for the same.' Our statute is not only silent...