Jackson ex dem. Sparkman v. Porter. property of every kind, and shall be protected therein. They shall be at full liberty to remain there, or to remove, with all or any part of their effects and it shall also be free to them, to sell their lands, houses, or effects, or to retain the property thereof at their discretion." Although the meaning of the term settler, as here used, is not very obvious, yet as the object of the article was to protect any interest that might have been acquired in property, it is perhaps reasonable to consider him a settler who had such interest in land, within the precincts or jurisdiction of the posts. But another question arises, as to what are the limits or jurisdiction of the post at fort Schlosser. It was suggested, but no authority cited to support the position, that it extended to the distance of three miles in every direction from the fort, in analogy to the rule of the law of nations, which gives to a country bordering on the sea coast, jurisdiction thereon to the extent of three miles. I cannot accede to this rule; but am inclined to think, it is to be proved as matter of fact, to what extent jurisdiction was exercised. There was no proof on that subject before the Court. But there is another and more conclusive reason for considering this article inapplicable to the case. It was obviously intended to protect some legal or equitable interest which the settler had acquired in land. And Stedman, as has already been shown, had no such interest which a Court of Law or Equity could recognise, or which the British government was under any obligations to sanction and protect. The article never could have been intended to ratify and confirm the possession of trespassers or intruders, who might be there without right. And the same remarks will apply to the 9th article, that secures to British subjects, who then held lands in the United States, the right of continuing to hold them, according to the nature and tenure of their estates, and titles therein, or to sell and dispose of the same at pleasure. But Griswold v. Hill. a mere naked or wrongful possession which the law would not protect, does not fall within the provisions of this article. The treaty applies to the title, whatever it is, and gives it the same legal validity as if the parties were citizens, and no more. The title however which it sanctions, is that which existed at the date of the treaty; and not any after acquired right, by length of possession or otherwise. I am accordingly of opinion, that the judgment of the District Court must be affirmed, and in this opinion the District Judge concurs. GRISWOLD V. HILL. Where a party dies during term, the judgment may be entered in this Court as of a day antecedent to his death. But there is this difference, in this respect, between its equity proceedings and those of the English Court of Chancery, that this Court is open only during term, and a decree cannot be entered if the death occurred before the beginning of the term. Where an order for the dismissal of a bill was taken ex parte, the complainant having avowed his intention not to pursue the cause any further; on a motion to vacate the order, on the ground that the defendant died before it was entered; held, that it was not distinguishable, in principle, from the case of death after argument, but before judgment, and that the order might be entered antecedent to the death. THOMPSON, J. THIS is a motion to set aside an order entered in this cause on the 2d day of September, in this present term, dismissing the complainant's bill with costs. The motion is founded on an affidavit stating, that the defendant died before such order was entered. It now appears that Hill died on the first day of this term. Griswold v. Hill. By the common law, the death of one of the parties before judgment, abates the suit. There can, therefore, be no doubt but that the order was irregularly entered, and must be set aside. But the question arises, whether the Court may not direct the order to be entered as of the first day of the term, and thereby render it regular. I have no doubt, that when a party dies during the term, the Court may, in many cases, direct the judgment to be entered as of a day antecedent to the death. This has frequently been done in the English Chancery, and also in the Court of Chancery of this state. These Courts are, however, always open, and may, and frequently do, make the judgment or decree relate back to a distant day. This Court, both on the law and equity side, is open only during the term. But there is no reason why it should not, whilst it is open, exercise the same power, as to entering its decrees, when a proper case is presented, as is done in the Court of Chancery in England. This is matter of practice in that Court, and which governs the practice of this Court, when not provided for by its own rules.a The The cases where this practice has been adopted, have usually been, when the death of the party occurred after argument, and whilst the cause stood over for judgment. present case does not, in its circumstances, fall precisely within that rule, although the reason and grounds upon which the practice is founded, are equally applicable. The cause was not argued. The order was taken ex parte; the complainant having avowed his intention not to pursue the cause any further. I am, therefore, inclined to think the circumstances of this case would warrant the Court in entering the order for the dismission of the complainant's bill, as of the first day of But it is not deemed advisable to adopt that course the term. a See Rules of Sup. Court of U. S. b Davis v. Davis, 9 Ves. 461.; Campbell v. Mesier, 4 John. Ch. 342. Griswold v. Hill. in the present instance. The defendant's counsel has produced in Court the letters of administration, and prayed that the administrators may be made defendants. To the granting of this application there can be no objection. The 31st section of the judiciary act of 1789, declares, "that where any suit shall be depending in any Court of the United States, and either of the parties shall die before final judgment, the executor or administrator of such deceased party, if the cause of action survived, shall have full power to prosecute or defend any such suit or action." Under this act it has been decided in the Supreme Court of the United States, that the executor or administrator may come in voluntarily and instanter, and be made a party on motion, without a scire facias, and may proceed to trial immediately,, if he pleases, if the cause is ready for trial; but may have a continuance if he wishes. This is according to the express provision of the statute, which declares, that the executor or administrator who shall become a party, shall, on motion, be entitled to a continuance until the next term. But no such indulgence is allowed by the act to the opposite party, nor is it reasonable that it should be. His situation is not altered by the substitution of the representatives of the deceased party. And it has accordingly been decided that the opposite party is not entitled to any delay. It is accordingly ordered, that the administrators be made parties, and no continuance being asked for, they have liberty to proceed without delay. H. W. WARNER for the complainant. H. D. SEDGWICK and R. SEDGWICK for the defendant. c 2 vol. L. U. S. 69. Smith v. Jackson ex dem. Allyn. SMITH V. JACKSON EX DEM. ALLYN. The Circuit Courts, on appeal from the District Courts, have power by the 32d section of the judiciary act, to allow any amendments of defects in form occurring in the Court below, which could have been amended there, or to disregard them in giving judgment. But this power does not extend to defects in substance. Such defects may however be amended in the District Court, on terms. This power more extensive than any given to the English Courts. But the amendments must be made before final judgment. And this is agreeable to the state practice in such cases. An omission of the averment of citizenship is a defect in substance, not cured by verdict, and which cannot be amended after judgment. So of the averment of the value of the property in dispute when necessary to give jurisdiction. Amendments at common law were for trivial errors, and where there was some thing to amend by. Aaciently they could be made only during the term when the error occurred in the record; afterwards they were allowed at any time pending the suit; but never after final judgment. Confusion and contradiction in the English cases arising upon the various statutes of amendments and jeofails. A judgment was entered in the District Court of the Northern District of NewYork, sitting with Circuit Court powers, in January, 1824, the record filed and execution issued. In September of the same year it was removed by error into the Circuit Court, and in January following, the District Court allowed the record to be amended by inserting in the declaration the averments of citizenship, and of the value of the property in dispute, which were essential to jurisdiction: Held, that the amendments were irregular, and that this Court would not receive them after the original record had been sent up. There is no practice in this Court of service of papers upon the agent of an attorney, as in the Supreme Court of the state. THOMPSON, J. THIS is a motion to set aside the judgment entered in this cause during the present term, reversing the judgment of the District Court of the Northern District of this state. The motion is founded, on an allegation that the judgment was irregularly entered, being in violation of an |