for debts collected for Nixdorff & Hager, to & Hager was thereby discharged from liability which he added five thousand nine hundred to the payment of their debts, and the burand seventy-five dollars and thirty-two cents, den of paying them devolved upon Nixdorff. for Nixdorff's half of the goods, making the A course of reasoning leading to conclusions so whole amount of credits forty-six thousand much at variance with law and justice, is anthree hundred and fifty-one dollars and ninety-swered by merely stating it. two cents; leaving a balance due from Nixdorff This singular error originated in charging & Hager to Hager & Smith of four thousand Nixdorff with the five thousand dollars paid six hundred and forty dollars and sixty cents. by Smith, on account of the whole purchase, The amount of the debt due from Hager & and then refusing to charge Hager & Smith Smith to Nixdorff, for which Smith was sued, with the whole amount of the partnership being four thousand eight hundred and seventy-effects in their hands, originally belonging to four dollars and forty-five cents, the auditor Nixdorff & Hager. The very moment that deducted the balance found due from Nixdorff Nixdorff was charged with this sum of five & Hager, from that sum, and reports a balance finally due to Nixdorff of two hundred and thirty-three dollars and eighty-five cents; and excludes Hager's half of the goods, included 185*] in the inventory, entirely from the account, on the ground that they were not subject to the debts of Nixdorff & Hager.

To this part of the report the defendant excepted. But the court overruled the exception, confirmed the reformed report of the auditor, and decreed that the injunction should be made perpetual, except for the sum of two hundred and thirty-three dollars and eighty-five cents, as reported by the auditor.

A very brief examination of the case will test the correctness of this decree. The equity, set up in the complainant's bill, rests entirely on the assumption that, upon a full and fair settle. ment of accounts, under the contract referred to, a large balance would be found against Nixdorff; and upon the apparent establishment of this fact, is the decree founded. If, however, it be shown that, instead of Nixdorff being indebted to Hager & Smith, on such settlement, they are largely indebted to him, the bill will be without equity, and the decree of course erroneous. By bringing into the accounts all the effects of Nixdorff & Hager, the auditor's first report shows, very satisfactorily, a considerable balance in favor of Nixdorff.

thousand dollars, the payment of it by Smith was neutralized, and the transaction between the parties stood as though no payment had been made. The only consideration left, there fore, to support the sale by Nixdorff to Smith, was the undertaking of Hager & Smith, in the written contract, to pay the debts of Nixdorf & Hager. In this aspect of the case, the liability of all their effects in the hands of the former, to the payment of the debts of the latter, cannot be doubted. By the first report of the auditor it appears that he settled the accounts between the parties, upon the principles here suggested, that is, by charging Hager & Smith with the whole inventory of the goods and the money collected for Nixdorff & Hager, and by charging Nixdorff with the money paid by Hager & Smith, in discharge of the debts of Nixdorff & Hager, and also with the five thou sand dollars paid to him by Smith. And upon this statement of the accounts, as already shown, a considerable balance appears in favor of Nixdorff & Hager.

But the auditor afterwards, it appears, became a convert to the doctrine of the complainant's counsel, and, in his reformed report, excluded Hager's part of the goods from the settlement altogether; and thereby created a seeming balance in favor of Hager & Smith, to nearly the amount of their debt to Nixdorff, on which the suit at law was brought. This statement of the accounts by the auditor in his first report, as far as it has been here examined, is perfectly correct, and ought to have been con. firmed by the court. The equity set up in the bill, depending entirely on the truth of the allegation that the balance would be in favor of Hager & Smith, upon such settlement of the accounts; the balance being clearly [137 established against them, and in favor of Nixdorff, extinguishes, therefore, all pretense to any equitable set-off in favor of Smith.

The decree of the Circuit Court is therefore reversed, the injunction dissolved, and the bill dismissed.

But the complainant's counsel seems to have taken up the idea that the five thousand dollars paid by Smith to Nixdorff applied exclusively to the payment of Nixdorff's half of the goods; and that the legal effect of the payment was to release Hager's half of the goods from liability to the debts of Nixdorff & Hager: and this principle was recognized by the auditor in his reformed report, and by the court in their decree, notwithstanding the allegations in the complainant's bill, and the stipulations of the contract, show clearly that the five thousand dollars were paid upon the purchase of the whole of Nixdorff's interest. Whether the payment was special or general, is not material to the merits of the case, but it is very material in considering the effect ascribed to it in the court below. For, if the payment had the power to release Hager's part of the goods from liability, because Nixdorff had sold to Smith his part of them, and received part of the purchase money, it must necessarily have the same effect if it applied to the sale and purchase of the whole of Nixdorff's interest. The fact being that Nixdorff did sell the whole of his interest to Smith, and received the five thousand dollars in part payment of the whole, to carry 136*] out the principle assumed, the whole Amendment. The defendant, in the Circuit of Hager's interest in the firm of Nixdorff Court of Mississippi, was sued and declared against

JOHN H. RANDOLPH, Executor of [138
Algernon S. Randolph, Deceased, Plaintiff in
Error,

V.

ISRAEL BARRETT, Executor of Joel F. Randolph, Deceased, Defendant in Error. Amendment-striking out "administrator" and inserting "executor"-default after plea in abatement.

amend.

as the administrator of Algernon 8. Randolph. He entered his appearance to the suit, and in person filed a plea in abatement, averring that he was not administrator of Algernon 8. Randolph, and that he was the only executor of Algernon S. Randolph. The plaintiff moved to amend the writ and the declaration, by striking out "administrator," etc., and inserting "executor." Leave was granted, and the amendment was made. Held, that there was no error in the Circuit Court in giving leave to The power of the Circuit Court to authorize amendments, when there is anything in 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 testator or intestate in trust for the creditors; and when his plea was Aled, it became part of the record, and furnished matter by which the pleadings might be amended. This amendment is not only authorized by the ordinary rules of amendment, but also by the statute of the United States of 1789, sec. 82.

N error to Circuit of United

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 five thousand six hundred and fifty-five dollars, the damages having been assessed under a writ of inquiry. From this judgment the defendant below prosecuted this appeal.

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

*The following errors were assigned [*140

1 States for the Southern District of Missis by the counsel for the plaintiff in error:

sippi.

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.

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 adminis- 2. It is error, That the court below extended trator of Joel F. Randolph, of a plea of trespass to plaintiff leave to amend equivalent to a in the case, returnable to May Term, 1839. To new action, and proceeded to judgment withthis writ the marshal returned, "Executed out award of new process, or rule to plea de personally on J. H. Randolph, April 23, 1839." 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 five thousand dollars and upwards.

On the 26th of April, 1839, John H. Randolph, having appeared to the action, filed the following plea:

139*] The said John H. Randolph comes and defends, etc., when, etc., 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, etc.

novo.

3. It is error, That the judgment is rendered against the defendant as executor, etc., when, as it appears by the record, he is summoned and declared against as administrator.

Mr. 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 But the writ and to the rule of amendment. declaration still remain, charging defendant as administrator; defendant could not, therefore, respond as executor, and must have again reasserted 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.

Or, in the other aspect, it is error that the court has rendered judgment against the defendant as an executor, on a misrepresentation of the fact, as appears by the record, that he was summoned as executor, when the writ shows differently, and upon a declaration also An amendcharging him as administrator. ment 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 C. C. R. 14; so of amending a bill, 3 Wash. C. C. R. 354.

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 leave 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, The judgment does not conform to the writ at the time of his death, who died intestate," and pleadings, and cannot be made so to do in and inserting "executor of the last will and this court. 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.

*Mr. Justice M'Kinley delivered the [*141 opinion of the court:

This is a writ of error to the Circuit Court of

the United States for the Southern District of | ment; and, as the defendant appeared for the Mississippi.

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.

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, etc., of Algernon S. Randolph, deceased, who died intestate, etc. To which the defendant entered an appearance, and filed in person a plea in abatement, averring that the was not administrator of the goods and chattels, etc., which were of the said Algernon S. Randolph, at the time of his death, etc.; but that he, the said John H. Randolph, was the "THE UNITED STATES, Appellants, [*143 only executor of the last will and testament of the said Algernon S. Randolph, deceased, etc. Whereupon the plaintiff moved for leave to

V.

JOHN BREWARD, Appellee.

scription-evidence.

amend the summons and declaration, by strik- Spanish land grant in Florida—insufficient deing 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.

Florida land claim. Breward petitioned the Governor of East Florida, intending to establish a sawmill to saw lumber on St. John's River, for a grant of five miles square of land, or its equivalent; ten thousand acres to be in the neighborhood of the place designated, and the remaining six thousand acres in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of the river. The governor granted the land asked for, on condition that the mill should be built; and the condition was complied with. On the 27th of May, 1817, the Surveyor-General surveyed seven thousand acres under the grant, including Little Cedar Creek, and bounded on three sides by Big Cedar Creek, including the mill. This grant and survey were confirmed.

Three thousand acres were laid off on the north

To reverse this judgment, the counsel for the plaintiff in error relied on these grounds: First. The Circuit Court had no authority to order the amendment of the summons and declaration, there being nothing in the record to amend by. Second. No judgment could be rendered against the defendant, until the plea in abatement was disposed of. Third. Judgment by default could not be taken against the defendant after ap-grant, was vold; but the court held that the grantee pearance entered.

ern part of the River St. John's, and east of the Royal Road, leading from the river to St. Mary's, four or five miles from the first survey. This survey having been made at a place not within the Is to be allowed to survey under the grant three thousand acres, adjoining the survey of seven thousand acres, if so much vacant land can be found; and patents for the same shall issue for the land, if laid out in conformity with the decree of the court in this case.

In 1819, two thousand acres were surveyed in Cedar Swamp, west of the River St. John's, at a place known by the name of Sugar Town. survey was confirmed.

This

Four thousand acres, by survey, dated April, 1819, in Cabbage Hammock, were laid out by the Surveyor-General. This survey was confirmed. grants of lands made before the 24th of January By the eighth article of the Florida Treaty, all 1824, by His Catholic Majesty, were confirmed; but all grants made since the time, when the first proposal by His Majesty for the cession of the country was made, are declared and agreed by the treaty to be void. The survey of five thousand acres having been made at a different place from the land granted, would, if confirmed, be a new appropriation of so much land, and void if it had been ordered by the Governor of Florida; and of course it is vold, having nothing to uphold it but the act of Cited, 10 Peters, 309. the Surveyor-General.

The power of the court to authorize amend ments, 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 testator, 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 142*] & Selwyn, 450; Barnes, *Notes of Practice, 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. The object of the defendant in filing the plea was, to prove that he was not administrator, and that he was executor; and thereby to abate the plaintiff's writ. The motion of the plaintiff for leave to amend the writ and declaration, Bo 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 in quantity, errors in survey, etc. NOTE--Land, plat, patents, surveys, variations See notes to 3 was a final disposition of that plea in abate- L. ed. U. S. 593, 697; 5 L. ed. U. S. 381, 423.

916

In the Superior Court of East Florida, the counsel for the clamant offered to introduce testimony in regard to the survey of three thousand acres: and the counsel of the United States withdrew his objections to the testimony. The admission of the evidence did not prove the survey to have been made. Proof of the signature of the SurveyorGeneral to the return of survey, made the survey prima facie evidence. Cited, Mrs. Wiggins's case, 14 Peters, 346.

The proof of the signature of Aguilar to the cer tificate of a copy of the grant by the Governor of East Florida, authorizes its admission in evidence: but this does not establish the validity of the concession. To test the validity of the survey, it was necessary to give it in evidence: but the survey did not give a good title to the land.

The United States have a right to disprove a survey made by the Surveyor-General, if the survey on the ground does not correspond to the land granted.

144] ON appeal from the Superior Court ΟΝ of East Florida.

the said alleged grant or commission was ever made by Governor Coppinger.

2. That the alleged concession, if made, was on a condition precedent, which was never fulfilled.

4. That the description of the lands in the grant are too vague to be the foundation of a valid survey.

5. That the plats and certificates of survey do not conform to the description of the lands in the said pretended grant.

The case was argued by Mr. Legare, the Attorney-General, for the appellants, and by Mr. Wilde for the appellee.

3. That the concession, if ever made, did not contemplate that the lands conceded should be The claim is founded on a petition of Brew-surveyed in four different tracts or parcels. ard, dated 23d August, 1816, and an alleged decree of Governor Coppinger thereon, dated the following day. The petition states that "he intends to establish a mill to saw lumber for the supply of commerce and the province, which he wishes to situate upon St. John's River, on the creek known by the name of Little Cedar Creek; and whereas said costly fabric requires to secure in lands and timber what may be sufficient to cover the great expenses which are necessary to build it, and it being all for the benefit of the province, he prays that there may be granted to him the usual five miles square of land, or its equivalent, destining to him ten thousand acres in the neighborhood of said place, and the remaining six thousand acres in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of said river."

Governor Coppinger's decree on this petition states that, "in consideration of the benefit and advantages which ought to result in favor of the province, if what the interested proposes is effected, the lands and permission which he solicits are granted to him; but with the express condition that he shall not have the absolute right to them until he erects said ma chine."

Mr. Justice Catron delivered the opinion of the court:

The petitioner asked five miles square of land, being sixteen thousand acres, on Little Cedar Creek, of St. John's River, he intending to establish a mill to saw lumber. Ten thousand acres were asked for in the neighborhood of the place, and the remaining six thousand acres, in Cedar Swamp, on the west side of St. John's River, and in Cabbage Hammock, on the east side of that river.

On the 20th of August, 1816, the Governor of Florida decreed the same, on the condition the mill was built. The condition was complied with.

1. On the 27th of May, 1817, George F. Clark, the Surveyor-General of the province, surveyed for Breward seven thousand *acres, in [*146 cluding Little Cedar Creek, and bounded on three sides by Big Cedar Creek and Dunn's Creek; and which includes the mill. This sur vey is valid.

The original of the petition and decree were not produced in evidence, neither were they to be found in the archives at St. Augustine; but a certified copy, under the hand of Thomas de Aguilar, secretary of the government, whose 2. There were laid off three thousand acres handwriting was proved, stating that they were on the northern part of the river St. John's, true copies, faithfully taken from the original and east of the Royal Road, leading from the which existed in his office, was offered, and was river to St. Mary's. This survey is proved to objected to by the district attorney, and ad-lie four or five miles from the first survey, and mitted by the court. is on Trout Creek. It was made the 28th of August, 1819.

There was also offered in evidence plats and certificates of survey, made for John Breward, by George J. F. Clark, Surveyor-General:

1. Dated 27th May, 1817, for seven thousand acres of land between the branches called Cedar Creek, and Dunn's Creek, on the northern part of the river St. John's.

2. Dated 28th August, 1819. for three thou sand acres on the northern part of the river St. John's, and east of the Royal Road leading from said river to St. Mary's.

145*] *3. Dated 10th October, 1819, for two thousand acres in Cedar Swamp, on the west part of the river St. John's, at a place known | by the name of Sugar Town

4. Dated 19th April. 1820, for four thousand acres, in Cabbage Hammock, on the east part of the river St. John's, and south of the branch called Dunn's Creek, which runs from Dunn's Creek to the said river.

After hearing testimony in the cause, the Superior Court made a decree in favor of the claimants for the four tracts of land; from which the present appeal is taken.

For the United States, it was contended that the decree should be reversed. because

By the eighth article of the Florida Treaty, all grants of land made before the 24th of Janu ary, 1818, by His Catholic Majesty, were con firmed. But all grants made since the 24th of January, 1818, when the first proposal by His Majesty was made for the cession of the coun try, are declared and agreed by the treaty to be null and void. This survey having been made at a different place from the land granted, would, if confirmed, be a new appropriation of so much land, and void, if it had been ordered by the Governor of Florida, and, of course, it is void, having nothing to uphold it but the act of the Surveyor-General. So this court held in Seton's case (10 Peters, 309). The party how ever, is entitled to his entire ten thousand acres in the neighborhood of Little Cedar Creek. The decree confirming the three thousand acre sur vey, is therefore reversed; and this quantity of land will be ordered by the Superior Court of East Florida to be surveyed adjoining the seven thousand acre survey, on vacant land; the addition to conform to the fourth article of the instructions to the Surveyor-General, of the 10th of June, 1811 Land Laws United States,

1. That there was not sufficient evidence that 1004. The seven thousand acres, and the three

thousand acres will be laid down in connection | lawful on their face, they must be accredited, unas one ten thousand acre survey. Not more than one third can be bounded in front on the river St. John's, should the claimant choose to add the three thousand acres next to either side of the seven thousand acre tract adjoining the river. The seven thousand acre survey being three hundred and sixty chains deep, the ten thousand acres can only front one hundred and twenty chains.