the transcript and use it in connection with proper legal process to bring up the case. Id. But a clerical error in a writ may be amended by the citation. McVeigh v. United States, 8 Wall., 640.

When amendments will not be allowed.-The court will not allow amendment of the writ by changing the action from case to covenant. Scholfield v. Fitzburgh, 1 Cr., C. C., 108; but see, The Harmony, 1 Gall., 123. Nor will leave be granted to amend the writ and declaration by correcting the corporate name of the plaintiff. Georgetown v. Beatty, 1 Cr., C. C., 234; Furness v. Ellis, 1 Brock., 15. A clerical mistake in a writ of a name may be amended, and in a declaration, but with leave to plead de novo. Elliott v. Holmes, 1 McLean, 466; but a mistake in the Christian name of a plaintiff cannot be corrected, after judgment by default, upon affidavits and evidence aliunde. Albers v. Whitney, 1 Story, C. C., 310. For rules regulating amendments in admiralty and equity, see post.

What amendments will be allowed.-Where a defendant sued as administrator of A. B. pleaded that he was not administrator, but executor, it was held that it was proper to allow the plaintiff to amend the writ and declaration by striking out administrator and inserting executor. Randolph v Barrett, 16 Pet., 138.

So the name of a wife may be stricken out where the husband and wife sue jointly, but the husband should sue alone. Moores v. Carter, Hemp., 64.

What may be amended in circuit courts on appeal from district courts.—The circuit courts, on appeal from the district courts, may allow any amendments of defects of form which could have been made in the district court or disregard them in giving judgment. But if amendments in substance are made it must be done whilst the proceedings are in fieri, and before judgment, and the court does it upon such terms as may appear just and equitable. Amendments in substance must be made in the court where the judgment is given, or to which the judgment is removed by writ of error. Smith v. Jackson, 1 Paine, 486.

In ejectment-amendments.-The amendment of the demise in ejectment without notice to the parties is not void. Walden v. Craig, 14 Pet., 147; and the court may make an amendment nunc pro tunc by supplying the omission of the clerk to enter the appointment of a guardian ad litem. Sprague v. Litherberry, 4 McLean, 442; Blackwell v. Patton, 7 Cr., 471; Smith v. Vaughn, 10 Pet., 367; McDaniels v. Wailes, 4 Cr., C. C., 201.

Jurisdictional facts cannot be inserted after judgment.-An amendment of an averment necessary to give jurisdiction, such as the necessary citizenship of the parties, or the amount or value of property in controversy, which is not cured by a verdict, cannot be amended after judgment nor on writ of error in the Supreme Court. Smith v. Jackson, supra; Kennedy v. Georgia State Bank, 8 How., 586.

When jurisdictional facts may be inserted.-But the averment of the proper citizenship of a party may be added even after judgment on a demurrer, if moved for in a reasonable time. Fisher v. Rutherford, 1 Bald., 188; Hilliard v. Brevoort, 4 McLean, 24; Spofford v. Ritten, Id., 253.

So, where judgment was arrested for want of jurisdiction in not averring the value of the property in controversy, the plaintiff was permitted to amend by averring the value. Lanning v. Dolph, 4 Wash., C. C., 629. So of citizenship of parties whenever a want of proper averment in this respect is suggested. Connelly v. Taylor, 2 Pet., 565.

New parties by amendment-substance.-New parties may be added by way of amendment after the reversal of a final decree, and the cause remanded to the court below. Russel v. Clark, 7 Cr., 99; Caldwell v. Taggart, 4 Pet., 190. But after writ of error returned, the court below will not give leave to amend the declaration in a matter of substance. Marsteller v. McLean, 2 Cr., C. C., 8.

Instances when writ may be amended-when declarationwhen verdicts.-Leave will not be granted to change the name of one of the plaintiffs in the writ. Comegyss v. Robb, 2 Cr., C. C., 141. Nor to amend by making new parties to the action. Morris v. Barney, 1 Cr., 245. It will, however, be granted, on a plea of misnomer, to amend the writ and declaration. Nelson v. Parker, 3 McLean, 379; Randolph v. Barrett, supra. So a declaration in the name of a firm may be amended by inserting the names of members of the firm. Tibbs v. Parrot, 1 Cr., C. C., 177; and a plaintiff, before trial, may amend his writ and declaration by striking out the name of one of the defendants in order to avoid a technical rule that if all the defendants are not proved to have made the contract a verdict must be found for all, though some of the defendants did so contract. Toby v. Claflin, 3 Sum., 379.

So a declaration may be amended by leave of court introductive of a new cause of action, provided the amendment corresponds in character with the original count in a kindred cause admitting the same pleading and defense, and might have been included in the declaration originally filed. Gregg v. Gier, 4 McLean, 208; Dougherty v. Bentley, 1 Cr., 219; Walden v. Craig, 9 Wh., 576; Day v. Chism, 10 Id., 449.

So a formal variance, such as sueing the defendant as "Biddle," instead of "Briddle," may be amended at any time. Scull v. Briddle, 2 Wash., C. C., 200; Craig v. Brown, Pet., C. C., 139. And a variance between the writ and declaration in respect to the return day is amendable. Wilder v. McCormick, 2 Blatch., 31. But leave to file a plea of the statute of limitations out of time will be refused, especially where there has been negligence and no pretense of merits. Reed v. Clark, 3 McLean, 480. Nor will amendments of pleas at the trial be permitted, unless the court is satisfied of the justice of the defense. Allen v. Magruder, 3 Cr., C. C., 6; Childs v. Long, 1 Wall., Jr., C. C., 305.

Defective pleadings-verdicts-judgments.-As to when amendments of defective pleadings will be allowed, see Garland v. Davis, 4 How., 131; Clark v. Sohier, 1 Wood. & M., 368.

The language of the provision (954) is sufficiently comprehensive to embrace verdicts, though a verdict eo nomine is not specified in the statute. Roach v. Hulings, 16 Pet., 319; Matheson v. Grant, 2 How., 263; Garland v. Davis, 4 Id., 131. Where the verdict in ejectment is upon one only of

several demises, the omission of the plaintiff to obtain leave to strike out the others is a mere matter of form, and under the statute may be disregarded, and it furnishes no ground for the reversal of a judgment. Van Ness v. Bank of United States, 13 Pet., 17.

So leave was given to amend a verdict in replevin after the jury had retired and another cause tried. Arguelles v. Wood, 2 Cr., C. C., 579.

No power is given by statute to amend judgments, except as to defects and matters of form. Albert v. Whitney, 1 Story, 310. And they cannot be altered unless by order of the court. Barnes v. Lee, 1 Cr., C. C., 430. But an amendment of a judgment supplying the name of a plaintiff was made four years after the rendition of the judgment. Coelle v. Lockhead, Hempst., 194. And judgment by confession, entered for too large a sum by mistake, was, on motion, amended at a subsequent term. See, also, Pierce v. Turner, 1 Cr., C. C., 433.

But a final judgment cannot be set aside on motion after the expiration of the term at which it was entered; that which entered into and became a part of the judgment of the court cannot be changed after the term, although a clerical mistake in the entry may be amended. Brush v. Robbins, 3 McLean, 486; Medford v. Dorsey, 2 Wash., C. C., 443.

In special proceedings-amendments.-A clerical error in a scire facias may be amended, Taylor v. Wharfield, 2 Cr., C. C., 248; as well as the return, Mandervill v. McDonald, 3 Cr., C. C., 631; and in an attachment, Birch v. Butler, 1 Cr., C. C., 319; and a judgment for a fine neglected to be stricken out on the order of a judge, Ex parte Smith, Id., 127; and an omission to show, in an information in the nature of quo warranto, that the offices usurped are corporate offices, Ganton v. Ingle, 4 Id., 438.

In equity-amendments.-Amendments to a bill may be allowed where it is found defective in proper parties, in the prayer for relief, or in the omission or mistake of some fact or circumstance connected with the substance of the case, but not constituting the substance itself, or for putting in issue new matters to meet allegations in the answer. Shields v. Barrow, 17 How., 130; Goodyear v. Bowen, 3 Blatch., 266.

Where the statute of limitations was pleaded to a bill, it was held proper to allow plaintiff to amend, alleging that the fraud charged in the bill had come to the knowledge of the complainant within six years. Wharton v. Lowrey, 2 Dall., 364. So, by striking out an unnecessary party. Conolly v. Taylor, 2 Pet., 556; Dwight v. Humphreys, 3 McLean, 104.

Amendment after demurrer.-A court of equity may, in its discretion, allow an amendment of a bill after deciding against it on demurrer. National Bank v. Carpenter, 101 U. S., 567; Hunt v. Rousmanier, 2 Mason, 342. And it may be made before argument of the demurrer. Kitteredge v. Claremont Bank, 3 Story, C. C., 590.

Answer-amendment of.—Applications to amend answers are viewed more favorably than applications to substitute new answers. Castor. Wood, 1 Bald., 289.

But matter in amendment inconsistent with the original answer will require satisfactory explanation. The court should be satisfied that the mis

takes to be corrected, or the facts to be added, are made highly probable, if not certain, and are material to the merits of the case in controversy. Smith v. Babcock, 3 Sum., 583.

Amendments in admiralty.-It is the practice in admiralty to allow a party to amend his libel, and make new allegations, where the libel is defective, where there is apparent merit in the proceedings. The Schooner Adaline, 9 Cr., 244; The Caroline v. United States, 7 Id., 496; The Divina Pastora, 4 Wh., 52; The Mary Ann, 8 Id., 980.

Even a new cause of action may be introduced by amendment. The Harmony, 1 Gall., 129.

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But where a libel in rem and in personam, in a petitory or possessory suit in admiralty, is not sustained as to the relief in rem, it cannot be amended so as to enable the party to recover a personal judgment. Lynock v. The Ives, 1 Newb., 205. See, also, on appeal, same principle, Houseman v. The North Carolina, 15 Pet., 40. Nor can a libel be amended so as to convert the suit into an action to recover possession of the vessel. The John Jay, 3 Blatch., 67.

Liberal principles prevail in admiralty.—The most liberal principles prevail in respect to amendments in courts of admiralty. And a new count may be added by amendment, on appeal in the circuit court, when public justice and the substantial rights of the party require it. New proofs may also be allowed. The Mariana Flora, 11 Wh., 1; Houseman v. The Carolina, supra; The Mary Ann, 8 Wh., 380; The Edward, 1 Wh., 261. But the Supreme Court will not grant a motion for leave to amend a libel, by the insertion of a claim of interest, so as to make it apparent in the record that the amount in controversy is sufficient to support the jurisdiction of the Supreme Court. Udall v. The Ohio, 17 How., 17. But it will allow amendments in revenue cases, or proceedings in rem. The Mariana Flora, 11 Wh., 1; Anonymous, 1 Gallis, 22.

Amendments on appeal-writ of error, etc.-The appellate court will amend an error apparent on the face of the record, as where the verdict was for the "United States," instead of, as in the writ, the "United States of America." Sears v. United States, 1 Gall., 257.

And it will direct the court below to allow the pleadings to be amended. The Carolina v. United States, 7 Cr., 496; The Adaline, 9 Id., 244.

But the usual course in the Supreme Court is to reverse the judgment, and remand the cause for further proceedings. Garland v. Davis, 4 How., 131; Lloyd v. Scott, 4 Pet., 205; United States v. Hawkins, 10 Id., 125. And see, as to amendments after judgment on writ of error, Gaylor v. Wilder, 10 How., 477.

The respondent may remit the excess of judgment pending a writ of error in the Supreme Court. Bank of Kentucky v. Ashley, 2 Pet., 327. As to amendments of writs of error, see post, § 1005.

Amendments of judgments—names.—Where the name of the defendant is not given in the judgment, but he is only referred to as "the defendant," but his name is correctly given in previous proceedings on the record, it is sufficient. Conrad v. Griffey, 11 How., 480.

So where a judgment was recovered in Ohio against a corporation by an erroneous name, and a suit upon the judgment was brought in Indiana against the company in its correct corporate name, accompanied by an averment that it was the same company against which judgment had been rendered in Ohio, it was held that the mistake was no ground of error, but that it should have been taken advantage of by a plea in abatement in the suit in which the first judgment was rendered. Lafayette Ins. Co. v. French, 18 How., 404.

A judgment in favor of the United States for duties entered, "payable in gold coin," was allowed to be amended so as to read, "payable in gold and silver coin." Cheang Kee v. United States, 3 Wall., 320. As to clerical mistakes see, post, Equity Rule 85, and notes.

Where a judgment is entered up, and a blank left for the amount of costs, it is proper for the court, at a subsequent term, to have the costs taxed, and the blank filled up, nunc pro tunc. Sizer v. Many, 16 How., 98.

Amendments on error.-When the judgment below was properly entered the Supreme Court will not remand the case for a new trial for a verbal mistake of the clerk in using a superfluous word in entering a verdict. Where the verdict was amendable in the court below the Supreme Court will regard the amendment as made. Shaw v. Railroad Co., 101 U. S., 557. Amendment of pleadings in the Supreme Court are not allowed. Pacific Railroad v. Ketchum, 95 U. S., 1. When Supreme Court will direct that complainants be allowed to amend their bill. Thompson v. Maxwell, 95 U. S., 391.

Death of defendant, pending error.-If the defendant in error dies pending a writ of error which is dismissed and the other side wishes to take a new writ, application should be made to the court below for the purpose of reviving the suit in the name of the representatives of the deceased. A motion in the Supreme Court to revive the writ by suggesting the death and substituting the representatives is not proper practice.

If the court below should refuse the application, then the writ, from necessity, may issue in the name of the representatives, serving on them the citation to appear at the next term of the Supreme Court. McClane v. Boon, 6 Wall., 244; Kellogg v. Forsyth, 24 How., 186; Davenport v. Fletcher, 16 Id., 142. If a party dies during a term of a circuit court, judgment may be enterered as of a day antecedent to the death. Griswold v. Hill, 1 Paine, 483.

SEC. 955. Death of parties.-When either of the parties, whether plaintiff, or petitioner, or defendant, in any suit in any court of the United States, dies before final judgment, the executor or administrator of such deceased party may, in case the cause of action survives by law, prosecute or defend any such suit to final judgment. The defendant shall answer accordingly; and the court shall hear and determine the cause