E 1 goods upon conviction; this was only to be ob- the part of the United States, to prove the ownership of the said property, and that it had been stolen from him in June, 1840, in his passage on board the ship Carroll, of Carrolton, from Liverpool to the city of New York; and also to prove facts and circumstances tending to show that the defendants were guilty of the said offense; to the competency of which witness, as to either of the said matters, the counsel for the defendants objected, on the ground that he was interested in the event of the suit, and so interested that he would not be rendered The reason that a person is a competent wit-competent by any release to be executed by 207*] ness at the common law to prove that | him. 1. Whether the said Francis M'Mahon, the owner of the property alleged to have been stolen, was a competent witness to be examined on the part of the United States, as to all the matters above mentioned. his goods have been stolen by the defendant, And hereupon the judges were divided in and on such testimony to convict him, was, opinion upon the following questions, which that the prosecutor could obtain nothing by the were presented for their decision: conviction of the defendant. The prosecutor whose goods have been stolen has been made a competent witness in a prosecution against the offender, upon whose conviction he obtains restitution of the goods, by force of the statutes; the statutes have made the prosecutor a competent witness; he is not such witness without the aid of the statutes, since he is to obtain restitution of his goods upon conviction. The difficulty in the present case in regard to M'Mahon is, that no statute of the United States has made him a competent witness; and without the aid of such a statute he cannot be a witness by the common law, as he is directly interested in the sentence. Third point. The witness, M'Mahon, cannot release to the United States his right to, and interest in, the fine to be imposed upon the defendants in case of conviction, and therefore his competency cannot be restored or created. The United States are not authorized by law to take such a release; the right to a share of a penalty, or the whole of such penalty, cannot be released or assigned. Commonwealth v. Hergesheimer, 1 Ashmead's Rep. 415. Nothing would exist to release or assign at the time of making the same; the right has not then accrued; an estate cannot be granted by deed to commence in futuro; such deed is void. See Coke on Littleton, 265. The party may release a possibility coupled with an interest, but a naked possibility is not subject to a release. See Jackson v. Waldron, 13 Wend. Rep. 178. 2. If not competent to testify as to the guilt of the defendants, whether he was competent to prove the ownership of the property described in the indictment, and that it had been taken and carried away with intent to steal and pur loin. 3. If not competent for both or either of the above purposes, without having released his interest in the fine to be imposed on the defendants, in case of their conviction, whether by releasing to the United States all his right to and interest in such fine his competency would be restored. We have considered these questions, and I am now directed to deliver the opinion of this court upon them. The first question presents, in its most general form, the consideration of the competency of M'Mahon, the owner of the goods alleged to have been stolen; and it must be admitted to involve no small difficulty, whether viewed in relation to principle or authority. The Act of Congress (Act of 30th April, 1790, ch. 36, sec. 16) upon which this prosecution is founded, provides, "that if any person within any of the places under the sole and exclusive jurisdiction of the United [*209 States, or upon the high seas, shall take and carry away, with an intent to steal and purloin, the personal goods of another; or if any person or persons having at any time hereafter the charge or custody of any arms, ordinance, munitions, etc., etc., belonging to the United States, shall, for any lucre or gain, or wittingly, advisedly, and of purpose to hinder or impede the service of the United States, embezzle, purloin, or convey away any of the said arms, The defendants, William Murphy and Wil-ordnance, munitions, etc., etc., the person or liam Morgan, were indicted under the sixteenth section of the Act entitled, "An Act for the punishment of certain crimes against the United States," approved on the 30th of April, 1790, for taking and carrying away with an intent to steal and purloin, on board of an American vessel on the high seas, one hundred and two gold 208*] coins, called sovereigns, each of the value of five dollars, of the personal goods of Francis M'Mahon.. Mr. Justice Story delivered the opinion of the court: This case comes before us upon a certificate of division of opinion of the judges of the Circuit Court of the Southern District of New York, under the following circumstances: persons so offending, their counselors, etc., etc., shall, on conviction, be fined not exceeding the fourfold value of the property so stolen, embezzled or purloined; the one moiety to be paid to the owner of the goods or the United States, as the case may be, and the other moiety to the informer and prosecutor; and be publicly whipped not exceeding thirty-nine stripes." It is not unimportant to observe, in the construction of this section of the act, that the fine The defendants having pleaded not guilty, is, as to its amount, purely in the discretion of and the case being brought to trial, Francis the court; that, whatever it may be, it rests on M'Mahon, the owner of the property described a mere contingency, even after conviction, in the indictment, was called as a witness on whether it will ever be paid or not, depending upon the ability of the convict; and that if the | no other evidence can be reasonably expected, fine is to be awarded as a part of the sentence have been from the earliest period admitted as of the court upon the indictment (as it seems another exception. Thus, for example, upon properly to be), then it must be taken to be a indictments for robbery, the person robbed is part of the punishment in furtherance of public constantly admitted as a competent witness, justice, rather than an indemnity or compensa- although he will be entitled to a restitution of tion to the owner, since it may bear no propor- his goods upon conviction of the offender. 1 tion to his loss or injury. Besides, from the Phillips on Evid. ch. 5, sec. 6, p. 120, edit. very nature of an indictment and the sentence 1839, by Cowen. So in an action against the thereon, the government alone has the right to *hundred by the party robbed brought [*211 control the whole proceedings and execution of under the statute of Winton, he is admitted as the sentence. Even after verdict, the govern- a competent witness to prove the robbery and ment may not chose to bring the party up for the amount of the loss, upon the acknowledged sentence; and if sentence is pronounced, and ground that it is from necessity in default of the fine is imposed, the owner has no authority other proof. 2 Rolle Abr. 686; 1 Phillips to interfere in the collection of it, any more than on Evid. ch. 5, sec. 2, p. 70, edit. 1839, by the informer or prosecutor; and the fine there- Cowen. Another exception, quite as remarkfore must he deemed receivable solely by the able, and standing upon a ground applicable to government; and then it is distributable by the the present case, is that of a person who is to government, and by the government only. It receive a reward for or upon the conviction of would indeed require strong language in any the offender; for he is universally recognized statute, where the proceedings were by indict- as a competent witness, whether the reward be ment, to construe that indictment, or the offered by the public or by private persons. sentence thereon, to be controllable by other The ground of this exception is forcibly stated parties who might have an interest in or under by Mr. Justice Bayley in The King v. Williams, the sentence. In this respect there is a great 9 Barn. & Cress. 549, 556, where he says: difference between an information or action "The case of reward is clear on the grounds qui tam, where a part of the penalty or forfei- of public policy, with a view to the public in210*] ture belongs to the informer or prose-terest, and because of the principle upon which cutor, and an indictment the conviction upon such rewards are given. The public has an which may entitle the informer or prosecutor to a part of the penalty or forfeiture. In the former case, the informer or prosecutor may not be a good witness, at least not unless under special circumstances; in the latter case he may be, for notwithstanding a conviction upon the indictment, he must still sue for the penalty or forfeiture by action or information, and cannot receive it under the sentence upon indictment. This distinction was adverted to by Mr. Justice Bayley, in delivering the opinion of the court in The King v. Williams, 9 Barn. & Cress. 549, upon which we shall have occasion to comment more at large hereafter. interest in the suppression of crime and the conviction of guilty criminals. It is with a view to stir up greater vigilance in apprehending, that rewards are given; and it would defeat the object of the Legislature by means of those rewards, to narrow the means of conviction and to exclude testimony, which would otherwise be admissible. Another exception is, in cases where, although the statute giving the party or the informer a part of the penalty or forfeiture, contains no direct affirmation that he shall nev ertheless be a competent witness, yet the court will infer it by implication from the language of the Statute or its professed objects. The rules as to the competency of witnesses Several cases of this sort are collected and in criminal cases are not exactly and through-commented upon by Mr. Justice Bayley in the out the same in America as in England, al-case of The King v. Williams, and they fully though in most cases they concur. Thus, for support the exception. Mr. Phillips also, in example, in cases of forgery, the party whose his work on Evidence, has given a summary of name is supposed to have been forged is not a the leading decisions. 1 Phillips on Evid. competent witness in England. But a different ch. 3, sec. 7, p. 125, edit. 1839, by Cowen. Incourse has generally, although perhaps not deed, Mr. Justice Bayley puts the exception, universally, prevailed in America. So the founded upon statute provisions, upon a very owner of stolen goods has been universally ad- broad and comprehensive ground, which is fully mitted as a competent witness, in America, at least to prove the identity of his property and the fact of the theft, if not to prove all other facts, although, independently of the statute of 21 Hen. VIII. ch. 11, his competency seems to have been a matter of doubt in England. The general rule undoubtedly is, in criminal cases as well as in civil cases, that a person interested in the event of the suit or prosecution is not a competent witness. But there are many exceptions which are as old as the rule itself. Thus, it is stated by Lord Chief Baron Gilbert as a clear exception, that where a statute can receive no execution unless a party interested be a witness, there he must be allowed; for the statute must not be rendered ineffectual by the impossibility of proof. Gilb. on Evid. 114; 1 Phillips an Evid. ch. 8, sec. 7, p. 125, edit. 1839, by Cowen. So cases of necessity, where in point in the present case. He says: "Where it is plain that the detection and conviction of the offender are the objects of the Legislature, the case will be within the exception, and the person benefited by the conviction will, notwithstanding his interest, be competent." And in the very case then in judgment, which was a case for a forcible entry into a dwellinghouse, on "the statute of 21 Jac. ch. [*212 15, where the prosecutor would, upon conviction, be entitled to judgment of restitution of the premises, he was held incompetent, solely because (to use the language of the learned judge) "the public interest will still have the protection of a common law indictment; and there is nothing from which an inference can be drawn, that it was with a view to public interest, and not for the sake of the benefit of the party grieved, that the provision for resti the owner, he would be a competent witness to prove the loss and identity of his property, for the like reasons as, under the statute of Winton, the party robbed is admitted. In The Commonwealth v. Moulton, 9 Mass. R. 29, upon 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 *first question, that the wit- [*214 ness 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 titution was introduced into the statute." Now, I held that in such an action qui tam, brought by every word of this passage shows that in the case now before us the party ought to be held competent. No common law indictment will lie for the offense, but only the statute remedy, and the statute is obviously drawn with a view to the public interest, and the suppression of public crimes, and not for the interest of the party aggrieved, since the fine is in the discretion of the court, and may be purely nominal. Looking to the objects of the present section, the promotion of public justice, and the suppression of public crimes, in which the government have a deep interest; and looking to the ordinary means by which the ends can be accomplished, it is difficult not to perceive that if the owner of the stolen goods be incompetent, it will be utterly impracticable, in most cases falling within the purview of the section, to procure any conviction, however frequent, or however flagrant may be the offense. The places on land where the offense may be committed are such, as being within the exclusive jurisdiction of the United States, contain but few inhabitants, or few whose residence is not transitory and changing. Take the case of a light-house establishment, where scarcely any other inhabitants are found but the keeper and his family, if he and his wife are excluded as witnesses from incompetency, how will it be practicable to establish the identity of the property stolen, or of the person of the thief, how-third question, we should have no doubt that ever atrocious and premeditated may be the circumstances under which the offense is committed? It may be in the night time; it may be in the broad day, even by a company of conspirators. But take the very case now in judgment, that of a theft committed on the high seas, where money is stolen from a passenger or an officer of the ship, or from one of the crew; who else besides himself can be expected to establish the identity of the property, or the circumstances of the theft? It is scarcely pos213*] sible that it could be done in one case in one hundred. Can Congress reasonably be supposed, in cases of offenses committed upon the high seas, thus to have intended to shut out all the ordinary means and ordinary proofs of the offense; and thus to have given new en couragement, and new motives to theft, and embezzlement, and plunderage? We think not. Upon all the grounds of exception already stated; upon the ground of necessity, and of public policy, and of attaining the manifest objects of the statute, and the ends of justice, we think that the witness was admissible for all the purposes stated in the first question. 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. This decision is not new in America. On the contrary, the doctrine has been recognized, at *CHARLES F. HOZEY, Plaintiff in [*215 least to an equal extent, in Connecticut and Massachusetts. In the case of Salisbury v. The Error, V. Pleading-allegations of fraud-practice-sale of vessel. State of Connecticut, 5 Conn. R. 101, the WILLIAM BUCHANAN, Defendant in Error. judges of the Supreme Court of that State held that the owner of goods stolen was a competent witness for all the matters in issue upon an indictment for the theft, although the statute declared that the thief, upon being convicted, should forfeit and pay treble the value of the property stolen to the owner thereof. It is true, that one main ground of this decision, by a majority of the judges, was, that there must be another action, qui tam, by the owner to enforce the forfeiture. But the same judges An action was brought in the Circuit Court of Louisiana against the sheriff of New Orleans to recover the value of a steamboat sold by the sheriff, under an execution as the property of Wilkinson, one of the defendants in the execution, Buchanan, the plaintiff, alleging that the steamboat was his The defendant in his answer alleged property. that the sale of the steamboat by Wilkinson to Buchanan was fraudulent; and that it was made to defraud the creditors of Wilkinson. Before the A bill of sale of a vessel, accompanied by possession, does not constitute a good title in law. Such an instrument, so accompanied, is prima facie evidence of right; but in order to constitute a full right under the bill of sale, the transfer should be bona fide, and for a valuable consideration. I States for the Eastern District of Louisiana. This was a writ of error brought by C. F. Hozey to reverse a judgment obtained against him by William Buchanan in the Circuit Court of the United States for the District of Louisi ana. The original suit was brought by Buchanan by a petition filed in court, in which he alleged that he was the sole owner of the steamboat called The Nashville, of the value of twelve thousand dollars, when she was illegally and wrongfully seized and sold as the property of William Wilkinson, by the defendant, Hozey, the sheriff of the parish and city of New Orleans. He alleged that he had previously purchased all Wilkinson's interest in the boat, which was small, namely, one fifth part; that he had thereby become the sole owner, and that Wilkinson had no interest in the boat at the time of her seizure; and that he so notified said sheriff, who nevertheless proceeded to advertise and 216*] *sell her at a great sacrifice, and to the damage of the petitioner twelve thousand dollars, for which he prays judgment. sel for the plaintiff moved the court to strike out all that part of the defendant's answer which alleged fraud in the sale of the steamboat by Wilkinson to the plaintiff. This was opposed by the counsel for the defendant. It was ordered by the court that the same should be stricken out, to which order the defendant excepted. On the trial of the cause, 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 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 legal title; but the court refused to charge the Companied by possession, constituted a good jury, saying to the jury that a bill of sale ac title in law. The counsel for the defendant excepted to this opinion. *Judgment having been rendered on [*217 the verdict, the defendant prosecuted this writ of error. The case was submitted to the court, on printed arguments, by Mr. Coxe for the plaintiff in error, and by Mr. Crittenden for the defendant. Mr. Coxe, for the plaintiff, contended that the ruling of the court, as stated in the exceptions, was erroneous; and the defendant was thereby precluded from making a valid defense to the action. Mr. Crittenden urged for the defendant in error, that neither of the exceptions presented any sufficient ground for the reversal of the judgment which had been rendered in favor of the plaintiff in the Circuit Court. Mr. Justice M'Lean delivered the opinion of the court: This is a writ of error from the Circuit Court for the Eastern District of Louisiana. In his answer and defense to this petition, Hozey denied that Buchanan ever had any interest in said boat. He alleged that she beIn the Circuit Court, Buchanan commenced longed to William Wilkinson, and that he, in an action against Hozey for the recovery of the his official capacity as sheriff, having in his damages he had sustained by the seizure and hands an execution of fieri facias from one of sale of his steamboat Nashville, by Hozey, as the courts of Louisiana, in favor of S. W. Oakey sheriff of the parish of Orleans. The boat was & Company v. C. M'Cantle & Company, or Cul-alleged to be of the value of twelve thousand len M'Cantle & William Wilkinson, did seize dollars. and sell said boat in virtue of said execution, Hozey, in his answer, denied that Buchanan as he was bound to do, she being then at New ever had any interest in the steamboat. That Orleans, and belonging to said Wilkinson, one having received, as sheriff, a writ of fieri facias of the defendants in said execution. He alleged issued on a judgment in favor of Oakey & Comthat Buchanan was in New Orleans when the pany v. Cullen M'Cantle & Wilkinson, the last boat was advertised and sold, and took none of of whom owned the said steamboat; and it those steps allowed by law to establish his al-being within the parish of Orleans, he levied leged right to her, or to prevent the sale; and insisted that he had, therefore, lost all claim on the respondent. He further alleged that if any sale had been made by Wilkinson to Buchanan, that it was not made with the formalities of law, but was fraudulent, and made with intent to hinder and defraud the creditors of Wilkin 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 reBoth the petitioner and respondent united inquired by law. And that the sale, if made, the prayer that the cause may be tried by a was fraudulent and void, as it was made to dejury. It was so tried, and a verdict was ren- fraud the creditors of Wilkinson. dered in favor of the plaintiff for eight thousand and five hundred dollars; and the court thereupon gave judgment for the amount of the verdict and costs of suit. son. Before the cause came on for trial, the coun The cause was submitted to a jury, and they found for the plaintiff the sum of eight[*218 thousand five hundred dollars. On this verdict a judgment was rendered. Before the jury were sworn, the counsel for Buchanan moved the court to strike out all that | By the 2597th article of the Louisiana Code, part of the defendant's answer which alleged it is declared that, "Whatever may be the vices fraud in the sale from Wilkinson to the plain- of the thing sold on execution, they do not tiff, which the court directed to be done. And give rise to the redhibitory action; but the rule the counsel for the defendant moved the court may be set aside in the case of fraud, and deto instruct the jury that by the act of Con-clared null in cases of nullity." And in the gress, bills of sale of ships and vessels to be valid following article, that "The sale on execution must be enrolled in the custom-house; but the transfers the property of the thing to the purcourt refused so to instruct the jury; and chaser as completely as if the owner had sold charged them that a bill of sale accompanied it himself; but it transfers only the rights of the by possession constituted a good title in law. debtor, such as they are." To this effect is the Exceptions were taken to these rulings of the case of Thompson v. Rogers, 4 La. Rep. 9; 3 Mar. 39; 10 Mar. 222. court. Evidence was given before the jury, written Independently of the above authorities, which and parol, conducing to show the prior owner- are full and explicit, no doubt could exist as to ship of the boat, for what she had been sold, her the right of the defendant to set out in his anemployment, the sale to Buchanan by Wilkin-swer his grounds of defense, 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 son, and the circumstances connected with it. The plaintiff in error insists on a reversal of the judgment on two grounds. 1. The striking out of the answer of the alle-been stricken from the answer, by the order of gation of fraud. 2. The invalidity of the bill of sale, it not having been enrolled as required by the act of Congress. 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 legal title." The enrollment seems not [*220 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. 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 defense 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 Louisiana 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 defense, and 7 Johns. Rep. 308. on which the defendant may chiefly rely. And this was done, too, before the cause was submit-panied by possession, constituted a good title in ted to the jury, and consequently before the evidence was heard. If the answer were defective in setting up incompatible grounds of defense, 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 219] 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. But the charge that "a bill of sale, accom law," is liable to objection. That such an instrument connected with the possession is prima 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 bona 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, [*221 David Petrikin, and Levi Woodbury, Secretary of the Treasury, Complainants and Appellants, V. GEORGE W. METZ, Appellee. Claim on U. S. of insolvent for extra compensation as gauger, passes to assignee. M. was discharged by the insolvent laws of Pennsylvania, after having made, according to the requirements of the law, an assignment of "all his estate, property, and effects, for the benefit of his creditors." After his discharge, he presented a peservices performed by him as United States gauger, tition to Congress for a compensation for extra before his petition for his discharge by the insol |