John H. Randolph, of Algernon S. Randolph, Deceased, in Error v. Israel Barrett, of Joel F. Randolph, Deceased, in Error

*141 Mr. Justice M'Kinley delivered the opinion of the Court. This is a writ of error to the Circuit Court of thé United States for the southern district of Mississippi. 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 hipa, as administrator of all and singular the goods and chattels, &c., of Algernon S. Randolph, deceased, who died intestate, &c. To which the defendant entered-jm appearance, and filed in person a plea in abatement, averring that he was not administrator of the goods and chattels, &c., which were- of the said Algernon S. Randolph, at the time of his death, &c.; but that he, the said John H. Randolph, Was the only executor of the last will and testament of the said Algernon S. Randolph, deceased, &c. Whereupon the plaintiff moved for leave to amend the summons and declaration, by striking 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. To reverse this judgment, the counsel fof the plaintiff in error relied on these grounds: First, The -Circuit Court had no authority to' order the amendment off the summons and declaration, there being nothing in the record to amend by. Secondly, No judgment could be rendered against the defendant, until the plea in abatement was disposed of. Thirdly j Judgment by default could not be taken against the defendant after appearance entered. The power of the Court to authorize amendments, where there is any thing 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 asset» 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 bé amended. Master v. Hurtz, 3 Maulé & Selwyn, 450; Barnes, *142 Notes of Practice, 5; 1 Mass. 433. And, in addition to these authorities, express authority is given, by the thirtyTsecond 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 hot 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, so 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 was a final disposition of that plea in abatement; and, as.the defendant appeared for the 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.