majority">Wells, J.

By the common law, the forfeiture of lands has relation to the time of the offence committed, so as to avoid all subsequent sales and incumbrances. But the forfeiture of goods and chattels, by the common law has no relation backwards; so that those only, which a man has at the time of conviction, shall be forfeited.

The distinction grows out of the fluctuating nature of personal property, and of its rapid passage from one person to another. 4 Black. Com. 387.

It was decided in the case of the brig Mars, 1 Gall. 191, that a bona fide purchaser, without notice, is protected against an antecedent forfeiture to the United States. But this decision was overruled in the same case, 8 Cranch, 417, and it was held, that a forfeiture would overreach such sale. It was there considered, that the Act of Congress had provided a different rule, in relation to goods and chattels from that of the common law; that the forfeiture took place upon the commission of the offence; and that it was not in the power of an offender to purge it by a sale. United States v. Nineteen hundred and sixty bags of Coffee. 8 Cranch, 398.

Where a forfeiture is given by statute, the thing forfeited may vest immediately, or on the performance of some particular act, according to the intention of the Legislature. This must depend upon the construction of the statute. United States v. Grundy & al. 3 Cranch, 337; Wilkins v. Despard, 5 T. R. 112.

When a vessel or goods have become forfeited by a breach of the revenue laws, they must generally be libeled and the suit prosecuted in the Court, having cognizance thereof. The mode of proceeding to final judgment of condemnation or restoration is prescribed by law, for the alleged forfeiture in the present case. Acts of Congress of Feb. 18, 1793, c. 52, <§> 6 and 35, and of Aug.. 4, 1790, c. 62, ■§» 67.

*383Although the liability to forfeiture takes place upon the commission of the offence, the title of the government, when goods are required to be libeled, does not become perfected until there is a judgment of condemnation. The Margaretta, 2 Gall. 522; United States v. Palo Alto, 3 Wood. & Minot.

Where the right of a party depends upon its establishment in a court of record, by a prosecution directed byjfstatutc, such right is not attained, unless the proscribed course ^followed. Fire Department v. Kipp, 10 Wend. 266.

In the present case, the government had an inchoate^ right to the property, arising from the violation of the law, if such were the fact, and could make that right absolute, if there were no laches in its officers, and the claim were duly prosecuted.

The title cannot therefore be said to be conclusively and entirely fixed by the offence, until the condemnation. The legal proceedings constitute the only effectual mode of determining whether the forfeiture has accrued.

If such acts have been done, as show the property liable to forfeiture, still the officers making the seizure cannot protect themselves from accountability for it, unless they have duly instituted the proceedings required by law. As soon as the offence is committed, a foundation is laid for a proceeding in rem, and no alienation can deprive the government of the property.

After the libel had been entered in Court, Barnes,| the claimant, filed a petition, confessing a forfeiture of the goods, praying for a remission of the same, and denying any intention of violating the law, or any belief, at the time of doing the acts, that they were in violation of it.

But such confession does not necessarily ensure a condemnation ; it is interlocutory.

In the case of the United States v. Morris, 10 Wheat. 246, it is said, by Johnson, J., that many defences are not only consistent in the claim for remission, but furnish in themselves the best ground for extending the benefit of the act to the party defendant, resisting the suit on the one hand, while *384he sues for remission on the other, amount to no more than this, that he denies having violated the law, but if the Court thinks otherwise, he then petitions for grace, on the ground of unaffected mistake.

So also in the case of the Palo Alto, it is said by Wood-bury, J. who questions, whether a forfeiture had been really incurred, that rather than enforce a forfeiture in a doubtful case, and where confession of it had been made in a collateral proceeding to obtain a remission, and has been accompanied by a denial of any intent to violate the law, it would be a legitimate exercise of the discretion of the Court, even on the appeal, to permit amendments, so as to enable the claimant to try his rights. Barnes was therefore still at liberty to contest the right of the government to the property; the final determination, in relation to it, depended on the judgment subsequently to be rendered.

A remission was granted by the secretary of the treasury, and notwithstanding an attempt was afterwards made to recall it, it finally took effect, and there was a judgment of restoration, When the property was delivered to the claimant by the deputy marshal, it was attached by the defendant, upon writs in favor of Barnes’s creditors.

On the next day after the confession of forfeiture, Barnes made a mortgage of the goods to the plaintiffs, and it was duly recorded. The question presented is, whether Barnes then had such an interest in the property, as would enable him to convey a title to the mortgagees, who were creditors, against other creditors, that caused it to be attached, after its final restoration.

No one can determine whether there would have been a judgment of condemnation, if the confession of forfeiture had not been interposed. That result would have depended upon the opinion of the Court, which had jurisdiction of the case.

We cannot be governed by the intermediate proceedings, but only by the final judgment; legal proceedings were properly instituted, no decree of forfeiture followed, but that of *385restoration, by a court of exclusive jurisdiction, over the whole subject of inquiry.

If we should investigate the facts relative to the alleged forfeiture, and should decide that the goods were forfeited, such decision would not place the title in the government, nor affect in any manner that, which has been made in relation to them. The investigation has been closed, and it cannot be overhauled collaterally, and we must regard the property as if no offence had been committed.

Between Barnes and third persons, the property was his, at the time of making the mortgage, subject to the claim of the government. Between him and the government, if there had been an offence creating a forfeiture, a right in the latter to the property was to be consummated only by a prosecution, and a final decree in its favor.

But it is contended, that the property being in the custody of the law, no possession of it could be given to the plaintiffs.

When the mortgage was made, the goods were in the custody of the collector.

Whatever interest Barnes had in the property, he could transfer by a sale. And if he could sell it, subject to the claim of the government, there does not appear to be any reason why he could not mortgage it. If he could make an absolute, he could also a conditional sale. And if it was incapable of delivery, then none was necessary to vest his interest in the purchaser, except a symbolical one. Whipple v. Thayer, 16 Pick. 25. In that case, the debtor, after the attachment of his property by an officer, made an assignment of it, while it was held under the attachment; subsequently to the assignment, the officer made another attachment of the property in his possession, subject to the first. It was held, that the delivery of the bill of sale, or assignment with an authority to collect, receive and take possession, was such a symbolical delivery, as would pass the general property in the debtor, subject to the first attachment only, and that the officer had no right to hold it under the second.

Note. —Upon the announcement of the decision, a suggestion was made of the death of C. C. Mitchell, one of the plaintiffs, and the counsel inquired of the Court how the execution should issue, and requested that authority should be given to the clerk upon the subject. The Court replied that no special authorization was necessary; that the clerk upon receiving evidence that Mitchell was dead, would issue execution in favor of the survivor.Note.— Howard, J. having been of counsel in this case, took no part in the decision.

In addition to the delivery of the mortgage by Barnes to the plaintiffs, it was recorded several months before the attachment.

The recording is made by statute, c. 125, <§> 32, equivalent to a delivery and retention of the possession. And a mortgage of personal property, if recorded, is effectual against third persons, without a formal delivery of it. Smith v. Smith, 24 Maine, 555.

The statute does not declare what shall make a valid mortgage, but that no mortgage shall bé valid, except between the parties, unless possession be delivered to and retained by the mortgagee, or the mortgage is recorded.

If the recording is sufficient evidence of notoriety, when a delivery can be made, there is more necessity of regarding it as sufficient, when a delivery is incapable of being made, as when the property is under attachment, replevied out of the hands of the rightful owner, or held for alleged violations of law, on the ground of forfeiture.

The result is, that Barnes having power to make the mortgage, it being a valid one, and its record constructive notice to all persons, attempting to acquire a title subsequently through him, the plaintiffs are entitled to recover, and a default must be entered.

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