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had, under the facts as found, acquired a vested right in the lands when the entry was made by means of which Simmons got his patent. By the statute under which Lewis made his entry in 1816, it was provided that purchases of public lands might be made on credit, and that when payment of the purchase-money was completed the register of the land-office should give “a certificate of the same to the party, and, on producing to the Secretary of the Treasury the same final certificate, the President of the United States is hereby authorized to grant a patent of the lands to the said purchaser, his heirs or assigns.” 2 Stat. 76, sect. 7. It follows, then, that if the final certificate in this case was genuine and valid, as, in effect, it has been found to be, Russell, the assignee of Lewis, had the legal right to demand from the President a patent for the lands described. This, certainly, was a complete segregation of the lands in controversy at that date. The sale to Mecke and patent thereon to Simmons, more than thirty years afterwards, were null and void, and conveyed no title as against Russell and his assigns. It is of no consequence whether the assignees of Russell could get a patent in their own names or not. After the certificate issued the lands were no longer in law a part of the public domain, and the authority of the officers of the government to grant them otherwise than to him, or some person holding his rights, was gone. The question is not whether Wagner, if he was out of possession, could recover in ejectment upon the certificate, but whether Simmons can recover as against him. He is in a situation to avail himself of the weakness of the title of his adversary, and need not assert his own. We think it clear, therefore, that the court below was right in giving judgment for defendant on the facts found.
Several exceptions were taken, during the progress of the trial, to rulings on the admissibility of evidence. While errors have been formally assigned on all these exceptions, only a few have been insisted on in the argument. Some have been already disposed of, as the objections were made entirely upon the assumption that nothing short of a superior legal title could defeat the patent which Simmons held. There was some evidence to prove the signatures of the register to the final certificate. That was one of the facts in the case, and the general
finding in favor of the validity of the certificate is equivalent to a finding that its due execution had been proved. The question here is not whether the deeds from Lewis to Russell, without the clerk's certificate as to the official character of the officer before whom the acknowledgment was made, would be sufficient to justify the register of the land-office in issuing his final certificate; but whether, in this action, they were admissible without such certificate to prove the fact that an assignment had been actually made. For aught we know, they were properly certified when presented to the register. Copies from the county records were offered in evidence below, and the records were made in 1816, long before any action was had by the register. It is not claimed that any certificate was necessary to authenticate them for record or to make them admissible as evidence in the cause. On the whole, we see no error in the record.
WEST v. SMTH.
1. Where an action has been removed from a State court to the Circuit Court,
the latter may, in accordance with the State practice, grant the plaintiff leave to amend his declaration by inserting new counts for the same cause
of action as that alleged in the original counts. 2. In an action to recover the balance alleged to be due upon certain yarn spun
for, and from time to time delivered to, the defendant, for all of which he had paid, except the last lot, he, by way of recoupment, claimed damages because all the yarn was not of the stipulated size. To prove this, he put in evidence a letter of the plaintiff wherein he, at the instance of the defendant, deducted from one of his bills five cents per pound on a speci. fied quantity, and stated the balance. The plaintiff, being examined, was then asked by his counsel whether he accepted defendant's proposition to make the deduction on that lot because he admitted that the yarn was not according to contract, or to settle a controversy. He answered that it was to avoid a controversy. Held, that the answer was properly admitted.
ERROR to the Circuit Court of the United States for the District of Connecticut.
The facts are stated in the opinion of the court.
Mr. C. E. Perkins for the plaintiff in error.
MR. JUSTICE CLIFFORD delivered the opinion of the court.
Due removal of the suit before the court was made from the State court where it was commenced, into the Circuit Court, in which case it is no longer usual to file new pleadings, the act of Congress providing that the practice, pleadings, and forms and modes of proceeding in common-law actions shall conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time, in like causes, in the courts of record of the State within which such Circuit Court is held, any rule of court to the contrary notwithstanding. 17 Stat. 197 ; Rev. Stats., sect. 914.
Sufficient appears to show that the writ.in the practice of the State courts contains the declaration, the command of the same to the sheriff being that he shall summon the defendant to appear and answer to the plaintiff in a certain plea, wherein is set forth the cause of action. Pursuant to that practice, the defendants in this case were summoned to appear in a plea of the case, the declaration containing two counts in assumpsit, — the first being a count for goods sold and delivered, in the sum of $8,000, in two forms; the second being a count for work and labor done and performed, in the sum of $8,000, at the special instance and request of the defendants. Both counts are in the usual form, and the declaration concludes with the usual breach alleging non-payment, to the damage of the plaintiffs in the sum of $10,000. Personal service was made; and the defendants having appeared and removed the cause into the Circuit Court, pleaded the general issue that they never did assuine and promise in manner and form as the plaintiffs in their declaration have alleged, and tendered an issue to the country.
Special matter may be given in evidence under the general issue, according to the State practice, if previous notice be given by the defendant or defendants. Such notice was given by the defendants in this case, that they would give in evidence a written agreement, and the extension of the same for one year, which is fully set forth in the transcript. Profert of the
instrument was made, and the defendants averred that the supposed promises were made, if ever, in consideration of work and labor done by the plaintiffs in the pretended performance of the stipulations and agreements in said written contract contained, in respect to which the defendants allege that the plaintiffs did not keep and perform their said agreements and obligations, to the damage of the defendants in the sum of $20,000, and greatly exceeding the amount that would be due to the plaintiffs for the alleged labor and work they had performed. What they claim is to set off so much of said damages as may be sufficient to extinguish their indebtedness to the plaintiffs, and to recoup and recover the excess of the $20,000 by a judgment in their favor.
In addition to the notice of such special matter, they also pleaded the Statute of Limitations, which, it seems, would not be admissible under the general issue and notice of special matter.
Leave was asked by the plaintiffs to file two additional special counts; and the court allowed them to file the one called in the transcript the second special count, subject to the objection of the defendants. Preliminary matters being closed, the parties went to trial, and the verdict and judgment were for the plaintiffs in the sum of $7,978.84. Exceptions were filed by the defendants, and they sued out the present writ of error, and removed the cause into this court.
Two errors are assigned in this court, as follows: 1. That the Circuit Court erred in allowing the new count to be filed. 2. That the court erred in admitting parol evidence of the plaintiffs' intention in writing the letter set forth and described in the transcript.
1. Amendments to the declaration under the State statute may be made by the plaintiff to correct any defect, mistake, or informality in the same, not changing the form or ground of the action ; and he may insert new counts in his declaration for the same cause of action as that alleged in the original counts. State Stats., Revision 1875, 426.
Authority is also given by the same statute to insert counts in any form of action which might have been originally inserted in the declaration. As quoted, the word “in” before “ which," as found in the published statute, is left out, it being regarded as a misprint, or, if not, that the word “declaration” should follow it, which would give the provision the same meaning as if the word “in” was omitted. Nor is it necessary in this case to construe that provision, as it is clear that the question before the court is controlled by the preceding part of the section, which authorizes the plaintiff to insert new counts in the declaration for the same cause of action as that alleged in the original counts, as well as to correct any defect, mistake, or informality in the declaration, not changing the form or ground of action.
Such amendments to the declaration are allowed in the State courts with great liberality, and it appears that the practice is carried to such an extent as to justify the remark of the court in a case cited for the plaintiffs, that the decisions of other States furnish but little guidance in expounding the meaning of their statute upon the subject. Nash v. Adams, 24 Conn. 33–38.
Their original statute was passed at a very early period, and has been several times amended so as to enlarge and extend the power of the court, and the course of the decisions in the courts has been in the same direction, so as to further the beneficial purpose intended by it, which was to prevent the plaintiff from being put to a new action when by accident, mistake, or inadvertence he had in his declaration failed to describe his claim with legal accuracy. In a great proportion of the cases, say the court, where amendments are allowed, the ground of action is in one sense changed, as where for instance the note in suit is incorrectly described ; but amend ments in such cases are very frequent where the court is satis fied that the error arose merely from mistake or inadvertence, and that the action was intended to be brought for the cause of action described in the amendment.
Other examples of like import are given in the opinion, and the court remarks that the phrase, “ ground of action," is not ased in the statute in any technical or narrow sense, but was intended to refer rather to the real object of the plaintiff in bringing the suit than to the technical meaning of the words ; and added, that such a construction had always been given to