hesitation in holding that in respect to the amendment of pleadings, in cases cognizable by it, this court possessed the same power which we have found to belong generally to other courts. But there is one provision which ought to be conclusive of the ques tion. The third section of the act of 1874 authorizes the making of rules for regulating the forms and mode of procedure before the court, provides that "such rules and mode of procedure shall conform, as far as practicable, to the mode of procedure and practice of the circuit courts of the United States." This is the only test to which our powers are subjected. We are to do that which the circuit courts of the United States may do in everything relating to practice and procedure. The subject of amendment falls most naturally, both in a technical and popular sense, within what is known as the practice of a court. If there be any one who doubts whether such amendments as these, if proposed in any circuit of the United States, would be allowed, his doubt ought to be removed by reading these well-considered decisions: (Smith rs. Barker, 3 Day, 314; Gregg vs. Geir, 4 McLean, 208; Hilliard vs. Brevoort, 4 McLean, 24; Walden vs. Craig, 9 Wheaton, 576; Kennedy vs. The State Bank of Georgia, 8 Howard, 610.) But we are not left to mere judicial decision, however pertinent and authoritative. In the act of 24th September, 1789, (Revised Statutes, p. 180,) it is expressly provided that the circuit court "may, at any time, permit either of the parties to amend any defect in the process or pleadings, upon such conditions as it shall, in its discretion and by its rules, prescribe." If such a point were not settled by an express statute, and so many well-matured interpretations of it by eminent judges, then, indeed, we would be bound to concede that the point is most difficult of settlement. What, then, was the object of Congress in fixing the limit prescribed in the eleventh section of the act of 1874? Certainly not to prevent any amendments to claims filed within the time, or Congress would have said so. Here it is noteworthy that the act does not contain one word on the subject of amendments. The object evidently was to fix some proper limit within which the business of the court should be transacted; to require those who had claims on the fund to come forward in some reasonable time and make them known; to prevent vigilant claimants from being delayed by the conduct of more negligent ones in participating in the pro-rata distribution provided for by the fourteenth section, in a certain important contingency; and then to leave claims filed within the appointed time' subject to such rules as all courts, and especially the circuit courts of the United States, may prescribe on the subject of amendments. It remains now only to notice the ruling in Kidd's case, (8 Court of Claims Reports, 259.) The plaintiff claimed, under the abandoned and captured property act, to recover the proceeds of 64 bales of cotton, and moved to amend his petition by increasing the demand to 197 bales, after the expiration of the time limited for filing the petition, namely, two years after the suppression of the rebellion. (12 Statutes at Large, 820, sec. 3.) The court refused to allow the amendment. There is a distinction between that case and the present. There was some ground for holding that, under the terms of the abandoned and captured property act, the claimant was required to state the amount of the property, the proceeds of which had found their way into the Treasury. A claimant is required under the act constituting this court to make his claim, undoubtedly in some proper form, but he is nowhere required to state its exact amount. This is required only by our own rules, which cannot override the act creating the court itself. If this difference were not sufficient for a sound legal distinction between the cases, we must admit, after the fullest consideration of the views expressed in Kidd's case by judges whom we so highly respect, that our judgment is opposed to the conclusion reached by the court. Believing the allowance of amendments within proper limits better fitted to do justice between the parties before us, and bound to conform to the prac tice of the circuit courts, and to no other, we discharge our official duty, while we follow the lead of our own judgments, by departing from the course adopted by the Court of Claims in that case. To what extent we shall exercise the power thus committed to us will depend upon the merits of each application. Merely formal changes ought to be allowed on motion, as of course. Amendments which touch the substance of the claim will also be allowed where we are satisfied that the original petition was filed in good faith; where the averment sought to be corrected originated in some error or want of information on the part of the claimant or his counsel; where the motion to amend is made within a reasonable time, and where the Government has not in the meanwhile been misled in some material point in the preparation of its proofs. For these reasons, we allow the amendments to be made, which were proposed in the cases noted at the commencement of this opinion. WELLS, Presiding Judge, and BALDWIN, Judge, dissenting. ANN ELIZA GANNETT, ADMINISTRATRIX, &C., RESPECTING THE PRACTICE OF THE COURT ON MOTIONS FOR REHEARING. Mr. R. M. Corwine for the complainant. WELLS, Presiding Judge, delivered the opinion of the court: Two motions have been submitted in this case by counsel for claimants, under the respective dates of March 15 and May 6, 1875. The first in order of date, that "the court will so far modify the judgment on demurrer entered in this case as that it may be made to apply only to so much of the petition as prays damages for the loss of the season's catch, and that so much of the petition as prays damages for the loss of the outfit, refit, and investment of said vessel, called the Splendid, is wholly unaffected by said judgment," &c. The second motion reading: "Now comes the above-named claimant, and asks leave to amend her petition herein by striking out so much thereof as states 'that the season's catch, covering a period of about one year, broken up by said rebel cruiser, was well worth, and would have realized the owners of said ship, the sum of fifty thousand dollars, which losses wholly and directly resulted from the damage caused by said rebel cruiser, in manner and under the circumstances aforesaid."" The court has carefully considered these motions, especially in view of the apparent large interest that is involved in this case, and also with the idea presented by counsel that this court had possibly erred in its opinion and judgment heretofore expressed. The very foundation of this claim, if it can be re-instated in court and re-argued, is "that the Shenandoah drove the whale-ship Splendid from the fishing-grounds which she had secured, destroyed her outfits, refit, and investments, &c." Every principle and argument has been fully and ably stated by counsel to sustain the position taken as above, and yet all the facts of the case, gathered from the petition and statements of counsel, do not create with the court any desire to vary the rule established in the case of Brown et al. vs. Aspden et al., (Howard's Rep., vol. 14, pages 26 and 27,) "that no re-argument will be heard in any case after judgment is entered, unless some member of the court who concurred in the judgment afterward doubts the correctness of his opinion, and desires a further argument on the subject." This case, decided A. D. 1852, was reaffirmed in A. D. 1869, in the case of The Public Schools vs. Walker, (9th Wallace, page 603,) where the court adds as follows: When the court does not, on its own motion, order a rehearing, it will be proper for counsel to submit, without argument, a brief, written or printed, petition or suggestion of the point or points thought important. If, upon such petition or suggestion, any judge who concurred in the decision thinks proper to move for a rehearing, the motion will be considered. In case No. 184 this course has been followed by attorneys for petitioners, in presenting a brief or printed argument in favor of the rehearing, carefully prepared, and doing full justice to the petitioners' important interests, but it has not induced any member of the court to request a further argument of the case. The motions of counsel for complainant are denied. On the rule here laid down, it is the intention of the court to act in the future. |