Hozey v. Buchanan. 16 P. an indictment for theft, it was held that the owner of the goods was a competent witness as to all the facts in the case; notwithstanding the witness would, by the statute, upon the conviction of the offender, be entitled to restitution of his goods; and, if they were not restored, to satisfaction out of the future earnings of the convict, and to recompense out of the county treasury for his labor and expense in the prosecution. Upon that occasion the court said, that when (under a former statute) the party from whom goods were stolen, was by law entitled to treble the value, he was always received as a competent witness as to all pertinent facts. As to the second and third questions, they do not require any particular examination, after what has been already stated. We have only to say that if we had not been of opinion, upon the [* 214 ] *first question, that the witness was a general witness, we should have entertained no doubt that he was a competent witness for the purposes stated in the second question, upon the ground of necessity, and the analogy to the case of the party robbed under the statute of Winton. And as to the third question, we should have no doubt, that if the witness had such an interest in the fine as would have rendered him incompetent, his competency might have been restored by a release. If, as the argument for the defendant seems to assume, the release is of a mere possibility, no release would be necessary; for a possibility of interest is no objection to the competency of a witness. If it is, on the other hand, a fixed interest in the event of the prosecution, then it is clearly releasable. Upon the whole, we are of opinion that all the questions ought to be answered in the affirmative. But, at the same time, we desire to say, that although a competent witness, the credibility of his testimony is a matter for the consideration of the jury, under all the weight of circumstances connected with the case, and his interest in the result. We shall direct a certificate to be sent to the circuit court of the southern district of New York, accordingly. 3 H. 197. CHARLES F. HOZEY, Plaintiff in Error, v. WILLIAM BUCHANAN, Defendant in Error. 16 P. 215. In an action against a sheriff for taking property of the plaintiff, on an execution against a third person, in Louisiana, it is error to strike out of the answer an allegation that the property was conveyed to the plaintiff by the execution debtor to defraud his creditors. The enrolment of a bill of sale of a vessel, is not necessary to pass the title. Hozey v. Buchanan. 16 P. THE case is stated in the opinion of the court. Coxe, for the plaintiff. Crittenden, contrà. *M'LEAN, J., delivered the opinion of the court. This is a writ of error from the circuit court for the eastern district of Louisiana. [ * 217 ] In the circuit court, Buchanan commenced an action against Hozey, for the recovery of the damages he had sustained by the seizure and sale of his steamboat Nashville, by Hozey, as sheriff of the parish of Orleans. The boat was alleged to be of the value of $12,000. Hozey, in his answer, denied that Buchanan ever had any interest in the steamboat. That having received, as sheriff, a writ of fieri facias issued on a judgment in favor of Oakey and Company v. Cullen M'Cantle and Wilkinson, the last of whom owned the said steamboat, and it being within the parish of Orleans, he levied upon and sold it at public auction, in conformity to law, as he was bound to do. That Buchanan knew of the levy and sale, being then in New Orleans, but took no steps to arrest the proceeding, whereby he has lost his right if he ever had any. And he alleges, that if any sale of the boat was made by Wilkinson to Buchanan, it was not done with the formalities required by law. And that the sale, if made, was fraudulent and void, as it was made to defraud the creditors of Wilkinson. The cause was submitted to a jury, and they found for the * plaintiff the sum of $8,500. On this verdict a judg- [* 218 ] ment was rendered. Before the jury were sworn, the counsel for Buchanan moved the court to strike out all that part of the defendant's answer which alleged fraud in the sale from Wilkinson to the plaintiff, which the court directed to be done. And the counsel for the defendant moved the court to instruct the jury, that by the act of congress, bills of sale of ships and vessels, to be valid, must be enrolled in the customhouse; but the court refused so to instruct the jury; and charged them that a bill of sale accompanied by possession constituted a good title in law. Exceptions were taken to these rulings of the court. Evidence was given before the jury, written and parol, conducing to show the prior ownership of the boat, for what she had been sold her employment, the sale to Buchanan by Wilkinson, and the cir cumstances connected with it. Hozey v. Buchanan. 16 P. The plaintiff in error insists on a reversal of the judgment on two grounds. 1. The striking out of the answer the allegation of fraud. 2. The invalidity of the bill of sale, it not having been enrolled as required by the act of congress. The allegation of fraud in the answer, in the sale from Wilkinson to the plaintiff below, was a most material allegation. If established, it constituted a good defence to the action. On what ground this was stricken from the answer, by the court, is not perceived and cannot well be imagined. No authority has been shown in the Louisi ana law for such a proceeding; and it is believed that none exists. It would be as novel as it would seem to be unjust, to strike out of the answer, on the motion of the plaintiff, that which constitutes a good defence, and on which the defendant may chiefly rely. And this was done too before the cause was submitted to the jury, and consequently before the evidence was heard. [ * 219 ] If the answer were defective in setting up incompatible grounds of defence, and on this account was liable to objection as a plea that is multifarious; still, it would not seem to be the right of the plaintiff to suggest how the answer shall be amended. The answer in this case, however, does not seem to have been liable to this exception. By the 419th article, in the Code of Practice, it is said: *" After issue joined, the plaintiff may, with leave of the court, amend his petition; provided he does not alter the substance of his demand, by making it different from the one originally brought." And in article 420: "The defendant may also amend his answer, subject to the same rules, and add to it new exceptions; provided that they be not of the dilatory kind. After answering on the merits, dilatory exceptions shall not be raised by way of amendment, unless with the consent of the plaintiff." By article 421: "When one of the parties has amended, either his petition or his answer, the other party has the right of answering the amendment; but it must be done immediately, unless the amendment be of such nature as to induce the court to grant further time for answering the same." The defendant may set up facts different from those alleged by the plaintiff; and these are considered as denied by the plaintiff without replication or rejoinder. Articles 328, 329. By the 2597th article of the Louisiana Code, it is declared that, "whatever may be the vices of the thing sold on execution, they do not give rise to the redhibitory action; but the rule may be set aside in the case of fraud, and declared null in cases of nullity." And in the following article, that "the sale on execution transfers the prop Milnor v. Metz. 16 P. erty of the thing to the purchaser as completely as if the owner had sold it himself; but it transfers only the rights of the debtor, such as they are." To this effect is the case of Thompson v. Rogers, 4 Louis. 9; 3 Mar. 39; 10 Mar. 222. Independently of the above authorities, which are full and explicit, no doubt could exist as to the right of the defendant to set out in his answer his grounds of defence, and impeach the sale of the steamboat from Wilkinson to the plaintiff below for fraud, or on any other ground. But the allegation of fraud having been stricken from the answer, by the order of the court, the defendant, of course, could not introduce evidence to prove it. This was an error of the court which we feel ourselves called upon to correct. The circuit court did not err in refusing the first part of the second instruction, "that by the act of congress, bills of sale of ships and vessels, to be valid, must be enrolled in the custom-house; and as the bill of sale, on which the plaintiff relies, is admitted not to have been enrolled, the same cannot be considered * as a [* 220 ] legal title." The enrolment seems not to be necessary by the acts of congress to make the title valid, but to entitle the vessel to the character and privileges of an American vessel. 7 Johns. 308. But the charge that "a bill of sale, accompanied by possession, constituted a good title in law," is liable to objection. That such an instrument connected with the possession is primâ facie evidence of right, may be admitted. But in view of the evidence in the case, there should have been the qualification that the transfer was bonâ fide, and for a valuable consideration. Upon the whole, the judgment of the circuit court is reversed, and the cause is remanded to that court for further proceedings. ROBERT MILNOR, JOHN THOMPSON, DAVID PETRIKIN, and LEVI WOODBURY, Secretary of the Treasury, Complainants and Appellants, v. GEORGE W. METZ, Appellee. 16 P. 221. A claim on the United States for services as a gauger, disallowed by the accounting officers of the treasury because not provided for by any law, and subsequently required to be paid by a special act of congress, passes by an assignment of the claimant's estate and effects, made by the debtor in compliance with the insolvent law of Pennsylvania, where he resided. THIS case, which was an appeal from the circuit court for the District of Columbia, is stated in the opinion of the con Clement Coxe, for the appellant. Bradley, contrà. [*224 ] Milnor v. Metz. 16 P. CATRON, J., delivered the opinion of the court. The question in this cause is, whether a claim on the United States passed by an assignment made by Milnor, an insolvent, by force of an act of Pennsylvania, where the insolvent resided, and where the assignment took place. The application was made to the court of common pleas, of Philadelphia county, 24th December, 1838. According to the requirements of the Insolvent Act, there was presented "a statement of all the estate, effects, and property of the petitioner, wheresoever situate, and of whatsoever kind." He says: "Your petitioner has no property of any kind except the following claim, namely :— "A claim on the government of the United States for about $3,774.50." Assignees were appointed by the court, to whom the following assignment was made. Know all men by these presents, that I, Robert Milnor, the abovenamed petitioner, have assigned, transferred, and set over, and by these presents do assign, transfer, and set over unto George W. Metz and Aaron Ross, their heirs and assigns, all my estate, property, and effects whatsoever, to, for, and upon the uses, trusts, and purposes designated by the act entitled " An act relating to insolvent debtors," passed the sixteenth day of A. D. one thousand eight hundred and thirty-six. Witness my hand and seal, the eleventh day of January, A. D. 1839. ROBERT MILNOR. [L. S.] Ross refused to serve, and was discharged by the court, leaving Metz the sole trustee. On the same day, Milnor was discharged. On the 2d of May, 1840, congress passed an act' for the relief of Robert Milnor and John Thompson, ordering the secretary of the treasury to pay to them $2,757.23: "being the amount [*225] * of fees equitably due to said M. and T. for extra services rendered by them as gaugers at the port of Philadelphia, after the passage of the act of the 4th of July, 1836, reducing the duties on wines, then in custom stores in said port, and commencing with the provisions of said act." Several petitions had been presented on the subject; the first in February, 1838; the claim was pending before congress when the assignment was made, and the insolvent discharged. He claimed the money as then due from the United States, and the act of con 16 Stats. at Large, 798. |