Page:Federal Reporter, 1st Series, Volume 9.djvu/615

 600 '/EDEBAL BEPOBTEB. �and in the mean time, pending the election, xll jona jlde ancum- brances are proteeted. The question as to the time when the trans- fer of right in the thing forfeited takes place, was first fully discussed and settled in the caseof 17. S. v. Grundy, 3 Cranch, 338. Under the act of December 31, 1792, for registering and recording ships or ves- sels, (section 4143, Eev. St.,) it was provided that taking a false oath as to ownership forfeited the vessel or the value thereof. The suit was brought to recoTer the vessel in the hands of a hona fide pur- chaser, without notice of the fraud in the registry, on the ground that title had vested in the United States at the instant of the commission of the offence for which the forfeiture was claimed. Chief Justice Marshall, in delivering the opinion of the court, stated the question to be whether, by virtue of the act, the absolute property in the ship or vessel vested in the United States, either in fact or in contempla- tion of law, on the taking of the false oath, or remained in the owners until the United States should perforra some act manifesting their election to take the ship, and not the value. He held to the latter view, and in his luminous way said : �"It seeras to be of the very nature of a right to elect one of two things: that actual ownership is not aequired in either until it be elected, and if the penalty of an offence be not the positive forfeiture of a particular thing, but one of two things, at the choice of the person claiming the forfeiture, it vvould seem to be altering materially the situation in which that person is placed to say that either is vested in him before he malies 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 wluch one only can be retained." �This construction of the class of statutes which forfeit the property with an alternative of its value, was acquiesced in by the attorney gen- erai of the United States in the discusion of the case of 1,960 Bags of Coffee, 8 Cranch, 398, and was afterwards deliberately reaffirmed in Galdwell v. U. S. 8 How. 366, where the supreme court reached the necessary conclusion of such a construction, by holding that any rights in the forfeited property, aequired in good faith by third persons, after the offence and before the date of the election, were not divested by the decree of condemnation. It will not be suggested, after the case of The Siren, 7 Wall. 152, that the government stands in any different relation to the money in the registry than do private suitora, except that it is exempt from the payment of costs. It will be seen, by ref- erence to the sections (2839, 2864) under which the ore was con- demned, that they are both in the alternative. The United States had an election, in either case, whether to forfeit the merchandise, or ��� �