CHARLES F. HOZEY, PLAINTIFFS IN ERROR,

v.

WILLIAM BUCHANAN, DEFENDANT IN ERROR

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 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 twelve thousand dollars.

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 favour 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 hw 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 eight 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 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 custom-house: 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 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 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 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 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.

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'xn 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 sub-, stance of his demand, by making it different from the one originally brought.” And in article' 420, “ The defendant may also amepd his answer, subject to the same rules, arid 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 onepf the parties has amended, either his petition or his answer, the other party has the right of answering the amendment; but it must be dorie immediately, unless the amendment be of such nature as to induce the Court to grant further time for answeririg 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 setaside in the case of fraud, and declared null in cases of nullity.” And in the following article,-that “ The sale on execution transfers the property of the thing to the purchaser as completely as if the owner had so]d .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. Rep. 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 customhouse ; and as .the bill of sale, on which the plaimiff relies, is admitted not to have been enrolled, the same cannot be considered as a 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. Rep. 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 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 boná 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.