not affected. It extended, however, to all kinds of personal property, whether in possession or in action. The principle of forfeiture for crime did not extend to trials in the court of admiralty for crimes committed on the high seas, as that court followed the Roman and not the common law. Forfeiture may be claimed under a contract providing for it. This case is simply a branch of the law of contracts, and is an instance of the law of contracts. There are comparatively few instances in the United States of forfeiture for crime. There is in the United States Constitution a clause prohibiting Congress from causing an attainder of treason to work a forfeiture beyond the life of the person attainted.3 There are, however, some cases of forfeiture for crime under the legislation of Congress. These are, in the main, for violation of the laws concerning customs or the internal revenue, the navigation laws, regulations of vessels engaged in commerce, and the laws prohibiting the slave-trade. Regular methods of trial are established for ascertaining the violation of law, and for enforcing forfeiture. Things subject to forfeiture may be regarded as of three distinct classes, (1) Those to which some crime or guilt is attributed. (2) Those which are considered as having a hostile character. (3) Those which are treated as liable for a debt. In the first class of cases there is a species of legal fiction that the chattel is itself an offender; it is "guilty," and yet the sole object of the fiction is to justify a legal proceeding against it, and to change its ownership, for example, to take it from the existing owner and transfer it to the United States. A forfeiture may thus happen for a prohibited act though the owner is himself personally innocent.5 In proceedings under the laws of the United States, the doctrine of "relation" assumes great prominence. The condemnation will relate back, not merely to the seizure, but to the wrongful act which was the ground of the seizure. The title of a purchaser in good faith will, accordingly, be subverted. This rule met with 1 13 Vin. Abr. 443, Tit. Forfeiture. 2 Hawk., P. C. 638, Cap. 49, § 9 (6th Lond. Ed.). 8 Art. III. § 3. 4 Forfeiture for breach of customs laws is provided for in Title XXXIV. of the Revised Statutes. There will be no forfeiture for errors happening by mistake or accident and not from any intention to defraud the revenue § 3051. The punishment for violation of internal revenue laws is found in the Revised Statutes, Title XXXV, Internal Revenue, and amendatory acts. The distillery itself may be destroyed in certain cases, so as to prevent the use of it for the purpose of distilling, § 3332. The statutes should be examined for further details. United States v. Brig Maleck Adhel, 2 How. U. S. 210, 234. 6 United States v. Bags of Coffee, 8 Cranch, 398; United States v. The Brig vigorous opposition from Judge Story in the cases cited, who would date the forfeiture from the time of conviction. The title obtained by the forfeiture is a new one, and not merely a continuation of the old one. Forfeiture applies to admiralty law, both in prize cases and in the enforcement of maritime liens, as for collision, and the like. The discussion of these, so far as they have special features, will be considered hereafter. The legal proceeding to cause a forfeiture is called an action in rem, or against the thing, as distinguished from an action against the person, or in personam. This proceeding will be considered more fully hereafter, under the topic of judgments. This subject is analogous to title by escheat in the case of real property. It is a well settled rule of the common law, in the case of real property, that if an owner dies without heirs, the land escheats to the State, as being property without an owner. In the case of personal property, goods without an owner (bona vacantia) in some instances belonged to the finder, and in others, to the sovereign. Instances of the latter were treasure-trove, shipwrecks, and estrays. Much controversy has arisen in respect to succession to personal property, where an owner dies intestate and without successors, such as husband, wife, or next of kin. It was the view of Lord COKE that such property inured to the king, as a branch of the royal prerogative.1 This view is stoutly resisted by the great antiquarian, JOHN SELDEN, who insists that Lord COKE wrongly interpreted the authority that he cited.2 It has, however, in modern times, been decided by the Privy Council in England, that the right to goods belonging to persons dying intestate, and without leaving husband or widow, and without kindred, as bona vacantia, has from the earliest times been vested in the king, in right of his crown, and that the Church never had, at any time, by law, any beneficial interest in the property of intestates, but only the right of jurisdiction and antine Mars, Id. 417. The majority of the court were of the opinion that they were bound by express words in the statute. Justice Story held that the words of the statute must be interpreted according to the rules of the common law, which did not divest the title of a purchaser in good faith. 1 Hensloe's Case, Coke's Rep., Part 9, 36 b, at p. 38 b, citing "Close Rolls," 7 Hen. III. m. 16. 2 Selden's Works, Vol. 6, p. 1681. administration.1 In this country the matter is governed by statutes in the respective States. In the State of New York there is, in two of the counties (New York and Kings), an officer called a public administrator, whose duty it is, among other things, to take charge of vacant estates. They proceed substantially as other administrators, and pay any surplus, after discharge of fees and expenses, into the city treasury.(a) In the other counties a similar service is performed by the county treasurer. Surplus moneys in this case are paid into the State treasury. (b) DIVISION III.Taxation. This mode of obtaining title applies both to real and personal property. It is a matter of statute regulation, which branches out into much detail. Taxation as affecting personal property only is considered here. The tax may be levied on real property, and yet be collected. from the taxpayer's personal estate. There is first an assessment of the amount to be paid according to a fixed and equitable proportion, by public officers termed assessors. They proceed judicially upon due inquiry. They are not personally liable for errors of judgment, though they are for wilful misconduct.2 If the tax is not paid within the prescribed time, a warrant is issued to a collector, who proceeds to seize upon or "distrain" the property of the taxpayer, whether it be money or goods. In the case of goods, there would be a public sale, the tax would be paid from the proceeds, and the overplus returned to the owner.3 The collection of taxes to be paid to the United States under internal revenue laws is regulated by the Revised Statutes. Cer 434 (1846). 1 Dyke v. Walford, 5 Moore, P. C. C. tenced to the pillory in the county where the offence was committed. The court said the offence deserved exemplary punishment. 2 Queen v. Buck, 6 Mod. 306. This is an old case, where the collectors and assessors omitted some from their books whom they nevertheless assessed, and put the money in their own pockets. They were adjudged guilty of a misdemeanor, and sen. (a) The law in New York relative to the disposition of vacant estates, as stated in the text, was formerly found in the Revised Statutes, Part II., Ch. VI., Tit. VI. These provisions were, however, repealed by ch. 686, Laws of 1893. This act re-enacted much of the old law, in the form of amendments to the Code of Civil 8 East India Company v. Skinner, Comberbach's Rep. 342. 4 Tit. XXXV. See especially, § 3187. Procedure, §§ 2665–2669. Provisions re- tain specified articles are exempt from distraint. In case of sale, the collector gives a certificate of sale, which is made conclusive evidence of the regularity of his proceedings in making the sale.1 The subject in New York and other States is fully regulated by statute.2 DIVISION IV. - Eminent Domain. The right of a State or of the United States to take the property of an individual owner on this ground, includes both real and personal property. The right is inseparably attached to national empire and sovereignty. All kinds of property are subject to the right. The occasion for taking personal property in this manner is, however, rare. One of the very early cases in which the right was asserted is the famous Saltpetre Case, in which the court vindicated the right of the "Commonwealth" to take property in time of war.5 Personal property, as well as real estate, is protected by the constitutional provision that private property is not to be taken for public use without just compensation. This kind of property may be destroyed without compensation in cases of inevitable necessity, as to arrest the spread of a conflagration. A provision requiring a particular county to issue bonds for an improvement in which the State, as a whole, is interested, is not a case of eminent domain, but rather of taxation.8 In the exercise of the right of eminent domain, there is nothing in the nature of a contract between the owner and the State. It is only necessary that compensation be made, and then the owner's property can be taken without his assent. If the property be taken by "due process of law," — that is, by judicial inquiry and condemnation, with due notice to the owner, the title of the original owner will be divested, and the State or its appointee will be substituted as owner. 1 U. S. Rev. St. § 3194. 2 For the law of New York, see the Revised Statutes of that State (8th ed.), pp. 1116, et seq. The collector proceeds under a tax list and warrant, distrains, sells, and pays any surplus to the owner, pp. 1116, 1117. There are special rules for the assessment of taxes on incorporated companies, pp. 1149-1159. 8 Jones v. Walker, 2 Paine, C. Ct. 688. 4 New York, &c. R. R. Co. v. Boston, &c. R. R. Co., 36 Conn. 196. 5 Coke's Rep., Part 12, p. 12. People v. Mayor, &c. of Brooklyn, 9 Barb. 535. 7 American Print Works v. Lawrence, 3 Zab. 9; Hale v. Lawrence, Id. 590; 1 Id. 714. Ante, pp. 430, 431. 8 County of Mobile v. Kimball, 102 U. S. 691. • Garrison v. City of New York, 21 Wall. 196. DIVISION V. - Title by Judgment. The word "judgment" is used in this connection in a broad sense, and is intended to include all judicial determinations of legal proceedings whereby the title to property may pass. Judgments are commonly divided into two principal classes, in personam and in rem. (1) Judgments in personam. These are the results of actions or other proceedings against persons who are expressly or tacitly included in the litigation. The word "judgment" is more properly applied to an action in a court of law, the result of a suit in equity being regularly called a "decree." It is, however, common in this country to call each a "judgment." A judgment in personam is in its nature a judicial declaration that a certain thing is to be done by a party to an action, as, for example, to pay a sum of money. This declaration does not work out its own result. It remains a declaration and nothing more, unless it is carried into effect by the executive branch of the government, through a writ called an "execution," addressed in the name of the people to the sheriff or other officer of the county, requiring him to carry the judgment into effect, either by selling the property of the debtor, or taking him personally into custody, or delivering specific property to the successful party, as the case may be. An execution is thus vitally connected with such a judgment. Lord COKE says an execution is the life of the law, and the fruit and life of every suit. In an equity case, instead of an execution there will be a requirement by the court that the prescribed act he done, -e. g., that a deed be executed, or that the party refrain from doing a forbidden act. If this direction be disregarded, the party will be deemed guilty of a contempt of court, and treated accordingly. It has been strongly claimed that there is one instance in which a judgment in personam changes the title to property. This is where personal property has been wrongfully converted to the use of another, and the owner brings an action and recovers its value. The argument is, that the property vests at once in the wrongdoer, and the former owner has only the judgment. The more correct view is, that the title does not pass by the mere force of the judgment, but only when that has been paid.1 1 The difficulty in this case grows out disregard the act of conversion, and claim of the election of remedies. When an owner's property is thus converted to the use of another, he has a choice of remedies; he may either sue for the value, or his property. Having elected to sue for the value, and obtained judgment, he is estopped from bringing an independent action to recover the property itself. |