41 U.S. 138
16 Pet. 138
10 L.Ed. 914
JOHN H. RANDOLPH, Executor of ALGERNON S. RANDOLPH,deceased, Plaintiff in error,v.ISRAEL BARRETT, Executor of JOEL F. RANDOLPH, deceased,Defendant in error.
January Term, 1842

1
ERROR to the Circuit Court for the Southern District of Mississippi. A summons was issued in the southern district of Mississippi, to John H. Randolph, stating him to be the administrator of Algernon S. Randolph, deceased, to answer the defendant in error, Israel Barrett, the administrator of Joel F. Randolph, of a plea of trespass on the case, returnable to May term 1839. To this writ the marshal returned, 'Executed personally on J. H. Randolph, April 23d 1839.'


2
The plaintiff below, on issuing the writ, filed a declaration against John H. Randolph, as administrator of Algernon S. Randolph, deceased, for acceptances of bills of exchange, for the use of the plaintiff's intestate; for money paid, laid out and expended; and on an account stated amounting to the sum of $5000 and upwards. On the 26th of April 1839, John H. Randolph, having appeared to the action, filed the following plea: The said John H. Randolph comes and defends, &c., when, &c., and prays judgment of the plaintiff's writ and declaration, because he says, that he the said John H. Randolph is not administrator of the goods and chattels, rights and credits which were of Algernon S. Randolph, at the time of his death, nor hath he ever administered as such upon any of the goods or chattels, rights or credits of the said Algernon S. Randolph, but that he, the said John H. Randolph, is the only executor of the last will and testament of the said Algernon S. Randolph, who has qualified as such, and this he is ready to verify; wherefore, he prays judgment of the said writ and declaration, and that the same may be quashed, &c.


3
At May term 1839, the plaintiff and defendant being in the circuit court by their attorneys, on motion of the plaintiff's attorney, it was ordered by the court, that he have to amend his writ and declaration herein, which said amendment is made accordingly, by striking out the words, 'administrator of all and singular the goods and chattels, rights and credits, which were of Algernon S. Randolph, at the time of his death, who died intestate,' and inserting 'executor of the last will and testament of Algernon S. Randolph, deceased;' and thereupon, it was further ordered, that this cause be continued till the next November term of the court aforesaid.


4
Afterwards, at the November term of the court, on the 14th day of November 1839, the following judgment was entered by the circuit court. The plaintiff appearing by his attorney, and it appearing to the satisfaction of the court, that the writ aforesaid has been duly executed on the defendant, John H. Randolph, executor of the last will and testament of Algernon S. Randolph, deceased, and he failing to appear, though solemnly called, judgment was rendered for the plaintiff, Israel Barrett, administrator of Joel F. Randolph, for $5655, the damages having been assessed under a writ of inquiry. From this judgment, the defendant below prosecuted this appeal.


5
The case was argued by Henderson, for the plaintiff in error. No counsel appeared for the defendant.


6
The following errors were assigned by the counsel for the plaintiff in error.


7
1. That the judgment is rendered against the defendant below on default, whereas, a good and sufficient plea in abatement is interposed by the record, which is undisposed of, by judgment or otherwise.


8
2. It is error, that the court below extended to plaintiff leave to amend, equivalent to a new action, and proceeded to judgment, without award of new process, or rule to plead de novo.


9
3. It is error, that the judgment is rendered against the defendant as executor, &c., when, as it appears by the record, he is summoned and declared against as administrator.


10
Henderson said:—The latitudinous rule of amendment, given to the plaintiff in this case, may not, perhaps, be successfully contested; but it must be a manifest error, that there was, in fact, no amendment made, under the rule; and yet the judgment is rendered, as if the amendment had been made according to the rule. We suppose it certain, that leave to amend, specifying in what the amendment shall consist, cannot be regarded as the amendment itself. Had the defendant further pleaded, he must have pleaded to the declaration, and not to the rule of amendment. But the writ and declaration still remain, charging defendant as administrator; defendant could not, therefore, respond as executor, and must have again re-asserted his plea of ne unques administrator. So yet stands his plea; and hence we say, it is error, that it has not been decided on.


11
Or, in the other aspect, it is error, that the court has rendered judgment against the defendant, as executor, on a misrepresentation of the fact, as appears by record, that he was summoned as executor, when the writ shows differently, and upon a declaration also charging him as administrator. An amendment of a declaration, inserting a new name, is a new declaration; and it is the attorney's and not the clerk's business to make the amendment. 2 Brock. 14. So, of amending a bill. 3 W. C. C. 353. The judgment does not conform to the writ and pleadings, and cannot be made so to do in this court.


12
McKINLEY, Justice, delivered the opinion of the court.


13
This is a writ of error to the circuit court of the United States for the southern district of Mississippi. The defendant in the court below was served with a writ of summons, in an action on the case, and a declaration was filed against him, as administrator of all and singular the goods and chattels, &c., of Algernon S. Randolph, deceased, who died intestate, &c. To which the defendant entered an appearance, and filed in person a plea in abatement, averring that he was not administrator of the goods and chattels, &c., which were of the said Algernon S. Randolph, at the time of his death, &c.; but that he, the said John H. Randolph, was the only executor of the last will and testament of the said Algernon S. Randolph, deceased, &c. Whereupon, the plaintiff moved for leave to amend the summons and declaration, by striking out the words 'administrator of all and singular the goods and chattels, rights and credits, which were of Algernon S. Randolph, at the time of his death, who died intestate,' and inserting 'executor of the last will and testament of Algernon S. Randolph, deceased.' The leave was granted, the amendment ordered, and the cause continued. At the next term of the court, judgment by default was rendered against the defendant.


14
To reverse this judgment, the counsel for the plaintiff in error relied on these grounds: 1. The circuit court had no authority to order the amendment of the summons and declaration, there being nothing in the record to amend by. 2. No judgment could be rendered against the defendant, until the plea in abatement was disposed of. 3. Judgment by default could not be taken against the defendant, after appearance entered.


15
The power of the court to authorize amendments, where there is anything on the record to amend by, is undoubted. In this case, the defendant admitted by his plea, that he was the person liable to the suit of the plaintiff; but averred that he was executor and not administrator. Whether he acted in one character or the other, he held the assets of the estator or intestate, in trust for the creditors; and when his plea was filed, it became part of the record, and furnished matter by which the pleadings might be amended. Master v. Hurtz, 3 Maule & Selw. 450; Barnes' Notes 5; 1 Mass. 433. And in addition to these authorities, express authority is given, by the 32d section of the judiciary act of 1789, to the courts of the United States, to permit either of the parties, at any time, to amend any defect in the process or pleadings, upon such conditions as the courts shall, in their discretion and by their rules, prescribe. This amendment is, therefore, not only authorized by the ordinary rules of amendment, but by the statute also.


16
The object of the defendant in filing the plea was, to prove that he was not administrator and that hewas executor; and thereby to abate the plaintiff's writ. The motion of the plaintiff for leave to amend the writ and declaration, so as to charge the defendant as executor and not as administrator, amounted to a confession of the truth of the plea; but instead of abating the writ, according to the prayer of that plea, the court granted the motion of the plaintiff, and ordered the amendment. This proceeding was a final disposition of that plea in abatement; and as the defendant appeared for the purpose of pleading in abatement only, the decision of the court upon the plea put him out of court; and for failing to appear again, and plead to the action, judgment by default was properly rendered against him. The judgment of the circuit court is, therefore, affirmed.


17
Judgment affirmed.

