John McKinley

“ 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. ”

“ 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.
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. ”

“ 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. ”