dence of service on board; and neither the omission to keep books, nor the neglect of the proper officers to enter names upon them, can be held to cut off those lawfully assigned to duty on board, and actually doing such daty, from participation in prize money awarded to the ship. It is found as a fact that Lieut. Cushing had been detailed by the proper authorities from the ship which he had previously commanded; and as to the other officers and men, the doing duty on board is sufficient prima facie evidence, at least, that they belonged to the launch, and were entitled to share in the prize money. In Wemys v. Linzee, 1 Doug. 324, cited for the United States, the captain of marines, who was denied an officer's share, was no part of the complement of the ship. See Mackenzie v. Maylor, 4 Doug. 3. The launch being a single ship, within the meaning of the prize act, her commander, as well as her other officers and her crew, was entitled to prize money according to the fourth and fifth rules of distribution therein prescribed. The prize court therefore erred in awarding to her commander, instead of his one-tenth of the prize money, a share proportioned to his rate of pay.

Another error occurred in the distribution of the prize money, by order of the secretary of the navy, to Cushing, Howarth, and Gay, according to the rates of pay of the grades to which they had been promoted since the capture. Although prize-money is, strictly speaking, a matter of bounty and not of right, and no one has any absolute title to it before adjudication, yet, unless the government, acting through the proper department, has clearly manifested an intention to revoke the grant, or to alter the mode of distribution, it is to be awarded and distributed according to the laws in force and the facts existing at the time of the capture. The Siren, 13 Wall. 389; The Elsebe, 5 C. Rob. 173; Stevens v. Bagwell, 15 Ves. 139, 152; Pill v. Taylor, 11 East, 414, and 8 Taunt. 805; 11 Op. Attys. Gen. 102. The direction in the prize act to make distribution among inferior officers and men "according to their respective rates of pay in the service" naturally implies the rates of their pay at the time of the capture, by relation to which the subsequent distribution is made; and not those rates as affected by promotions after the capture and before decree or distribution, although such promotions, so far as affects rank, and possibly ordinary pay, date from the day of the capture. To hold otherwise would be to leave the shares of prize money, not only of the persons promoted, but also of all others on board and entitled to share according to rate of pay, subject to be varied in consequence of delay in obtaining distribution. For these reasons, this court concurs in the conclusions of the court of claims as to the shares of prize money which the officers and crew of the launch were entitled to receive under the prize laws in force at the time of the capture. The inequitable operation of those laws, as applied to a capture by a vessel having so small a number of officers and men as this launch, by which the leader of the enterprise obtains less prize money than a paymaster or an engineer under his command, is a matter for the consideration of congress, and not of the courts.

The report of the committee on naval affairs of the house of representatives, accompanying the bill which was afterwards passed as the act of August 8, 1882, c. 480, referred, among other things, to the following documents: The decrees of the prize court in the case of the Albemarle. The orders of the, 13 secretary of the navy for the distribution of the prize money. The opinion of Atty. Gen. Reverdy Johnson, dated November 19, 1849, that if accounting officers err, designedly or by mistake, the loss must fall on the United States. 5 Op. Attys. Gen. 183. The opinion of Atty. Gen. Pierrepont, dated December 10, 1875, that this launch was "a single ship," within the meaning of the prize act; that her commander was entitled to his fractional part, and could not share according to his pay in the prize money of the Albemarle; and that the rates of pay, according to which others on board the launch were entitled to share in the prize money, were the rates of pay at the time of the capture. V.58-49

15 Op. Attys. Gen. 63. A letter of the secretary of the navy to the counsel of the captors, dated April 24, 1877, stating that, as the prize money of the Albemarle had been fully distributed, and as there was no other fund which he could lawfully order to be paid to her captors, they must look to congress for the relief to which they seemed to be entitled. Report No. 90, H. R. 1st Sess. 47th Cong.

It is evident, therefore, that the act of 1882 was passed with a knowledge of the manner in which the prize money for the capture of the Albemarle had been distributed by the secretary of the navy under the decrees of the prize court; and the reasonable inference is that congress intended, without impeaching the validity of the distribution so made, or affecting the right of any captor to hold the money already paid him, but treating each as having received no more than a suitable reward for his gallantry, to allow out of the treasury, to those of the captors who had received less than their lawful shares according to the rules of the prize act, enough to make up the deficiency. The joint effect of the act of 1882 and the previous distribution is the same as if the prize money had been distributed in conformity with those rules, and congress had afterwards granted to Cushing, Howarth, and Gay, out of money in the treasury, sums in addition to their lawful shares of prize money, as was done in the case of Capt. Perry for captures on Lake Erie in the war of 1812. Act April 18, 1814, c. 70, (3 St. 130.)

It is therefore unnecessary to express an opinion upon the question argued by counsel, whether, under the act of 1864, the jurisdiction of the prize court, upon the condemnation of a prize taken by an armed vessel of the navy, extended to determining the separate shares of the officers and crew, or was limited to adjudging what vessels were entitled to share; and whether, by reason of their force as compared with that of their prize, the whole or the half of the proceeds should go to them,-leaving the distribution among the officers and men to be made by the secretary of the navy, according to the records of the department.1

Judgment aflirmed.

1 See Act July 17, 1862, c. 204, 5, (12 St. 607;) Act June 30, 1854, c. 174, ¿? 1, 7, 9, 10, 16, 27, 28, (13 St. 307-314;) The St. Lawrence, 2 Gall. 19; Proceeds of Prizes, Abb. Adm. 495; The Glamorgan, 1 Spr. 273; The Cherokee, 2 Spr. 235; 5 Op. Attys. Gen. 142.

(113 U. S. 756)

HARDIN, Adm'x, etc., v. BOYD, Adm'r, etc., and others.

(March 16, 1885.)

1 EQUITY PRACTICE-AMENDING PLEADINGS.

No rule can be laid down in reference to amendments of equity pleadings that will govern all cases. They must depend upon the special circumstances of each case, and in passing upon applications to amend the ends of justice must not be sacrificed to mere form, or by too rigid an adherence to technical rules of practice. 2. SAME-ACTION ON TITLE Bond.

In a suit brought by the heirs and administrator of a vendor of land by title bond the bill alleged that the bond had been obtained by fraud, and also that the land had not been fully paid for according to the contract of sale. Its prayer was, among other things, that the bond be canceled; that an account be taken of the rents and profits which the purchaser had enjoyed, and of the amount paid on his purchase; that the title of the complainants be quieted; and that they have such other relief as equity might require. At the final bearing the complainants were permitted to amend the prayer of the bill so as to ask, in the alternative, for a decree for the balance of the purchase money, and a lien on the land to secure the payment thereof. Held, that no error was committed in allowing the amendment. It did not make a new case, but only enabled the court to adapt its relief to that made by the bill and sustained by the proof. The bill, with the prayer thus amended, was in the form in which it might have been originally prepared consistently with the rules of equity practice. Shields v. Barrow, 17 How. 130, distinguished.

3. SAME-STATUTE OF LIMITATIONS-ADVERSE POSSESSION.

Although the debt for unpaid purchase money was barred by limitation under the local law, the lien therefor on the land was not barred; for there was no such open, adverse possession, for the period within which actions for the recovery of real estate must be brought, as would cut off the right to enforce the equitable lien for purchase money.

Appeal from the Circuit Court of the United States for the Eastern District of Arkansas.

The main question on this appeal relates to the alleged error of the circuit court in permitting the complainants, at the hearing, to amend the prayer of their bill so as to obtain relief not before specifically asked, and which, appellants contend, is inconsistent with the case made by the bill. To make intelligible this and other questions in the cause, it is necessary to state the issues and the general effect of the evidence.

On the twenty-eighth day of March, 1871, John D. Ware executed his title bond to William D. Hardin, reciting the sale to the latter of certain lands in Crittenden county, Arkansas, for the sum of $20,000, one-half of which was to be paid at the delivery of the bond, and the remainder, on the first day of January thereafter, in county scrip or warrants; and providing for a conveyance to the purchaser when the purchase money should be fully paid. Ware died, at his home in Tennessee, on the sixth day of December, 1871. In the same month, the probate court of Crittenden county appointed L. B. Hardin (a brother of the purchaser) to be administrator of Ware; and on the fifteenth of January, 1872, his bond having been on that day filed and approved, letters of administration were directed to be issued. Under date of the twenty-third day of January of the same year, L. B. Hardin, in his capacity as administrator, executed to the purchaser an absolute conveyance of all the right, title, and interest of Ware in the lands. The deed recited the payment by the grantee to the said administrator of $10,000 in Crittenden county scrip and warrants, and that the deed was made in conformity with an order of the probate court.

The General Statutes of Arkansas declare that "when any testator or intestate shall have entered into any contract for the conveyance of lands and tenements in his life-time, which was not executed and performed during his

life, and shall not have given power by will to carry the same into execution, it shall be lawful for the executor or administrator of such testator or intestate, with the approval, in term time, to execute a deed of conveyance of and for such lands, pursuant to the terms of the original contract; such excutor or administrator being satisfied that payment has been made therefor according to the contract, and reciting the fact of such payment to the testator or intestate, or to such executor or administrator, as the case may be, which deed may be acknowledged as other deeds, and shall have the same force and effect to pass the title of such testator or intestate to any such lands as if made pursuant to a decree of court." Act Feb. 21, 1859; Gantt's Dig. 180. By deed of July 10, 1877, W. D. Hardin conveyed these lands to his wife, and they were in possession, by tenants, when the present suit was instituted, on the twenty-eighth of October, 1881. The complainants are the heirs at law of the vendor and one Boyd, his administrator, the latter having been appointed at the last domicile of the decedent in Tennessee. The defendants were W. D. Hardin and his wife, and their tenants. The bill proceeds upon these grounds: That Ware's obligation of March 28, 1871, was obtained through fraud and imposition practiced by the purchaser; that the latter was at liberty, according to the real agreement between him and Ware, to pay the entire purchase money in county scrip or warrants; that he and his wife were in possession, claiming the lands to be the absolute property of the latter, although no part of the purchase money had been paid, except $5,400 paid to the intestate in county scrip or warrants at their face value; that no such proceedings as are recited in the deed to W. D. Hardin were ever had in the probate court of Crittenden county; that the $10,000 in scrip or warrants, which the deed states was paid by W. D. Hardin, were disposed of at private sale for 15 cents on the dollar of their face value, and the proceeds applied, by collusion between the purchaser and his brother, to a claim which they, acting together, fraudulently procured to be allowed in favor of W. D. Hardin against Ware's estate, when, in fact, no such indebtedness existed; that all the papers relating to the estate of Ware were destroyed by Hardin, while in his custody as clerk of the probate court, for the purpose of concealing his fraudulent scheme to obtain the lands without paying for them; that the deed from Hardin to his wife was without consideration; and that Hardin, after he took possession of the lands, appropriated to his own use all the rents annually accruing therefrom.

The prayer of the bill was that "the said bond for title and the said deeds made by Lucian B. Hardin to said William D. Hardin, and by the latter to said Lida Hardin, his wife, may be set aside for fraud; that an account may be taken of the said rents and profits, and of the value of the county warrants delivered by said William D. Hardin, and that your orators may have a personal decree against said defendants for any balance that may be found to be justly due to them; that a decree may be rendered quieting the title of the plaintiff herein to said lands against said claims of the said defendants, and for such other relief as equity may require.

Hardin and wife filed separate answers, and also pleas relying upon the statute of limitations in bar of the suit. They also demurred to the bill upon numerous grounds.

A good deal of evidence was taken touching the physical and mental condition of Ware at and before the execution of his title bond, as well as upon the issue as to whether Hardin had paid for the lands according to contract. Without detailing all the facts, it is sufficient to say that, according to the weight of the evidence, the payment to Ware of $5,400 in county scrip or warrants was the only one ever really made on Hardin's purchase of these lands, and that the alleged payment subsequently of $10.000 in like scrip or warrants to L. B. Hardin, administrator, was not intended to be a payment on the land, because the proceeds of their sale were, by collusion between him

and W. D. Hardin, appropriated by the latter on a fictitious claim asserted by him against Ware's estate.

*Such was the state of the record when the cause came on for hearing. After the evidence was read, the complainants asked leave to amend the prayer of the bill by inserting therein the following words: "Or, if thought proper, that the court give a decree for the purchase money due on said lands, and that the plaintiffs be decreed to have a lien on said lands for the payment thereof, and that said lien be foreclosed." This amendment was allowed, and the defendants excepted. And thereupon the court, having heard the evidence and the argument of counsel, rendered a final decree, adjudging that W. D. Hardin was indebted to B. P. Boyd, administrator of Ware, in the sum of $17,150 on the purchase money for the lands, and that complainants have a lien thereon for its payment, relating back to the date of the title bond. The deeds from L. B. Hardin, administrator, to W. D. Hardin, and from the latter to his wife, were canceled for fraud, and the land ordered to be sold in satisfaction of the lien; no sale, however, to take place until the heirs of Ware should file in court a warranty deed for the lands. The court refused to give a personal decree for the balance of the purchase money, "the same being barred by the statute of limitations." Subsequently, the heirs of Ware filed the required deed in court, and the decree was made absolute. Hardin appealed to this court. After the appeal was perfected he departed this life, and by consent it was revived in the name of Mrs. Hardin, as his administratrix. After the submission of the cause here the heirs at law of Hardin appeared, and by consent they were made co-appellants, without opening the submission.

B. C. Brown, for appellant. U. M. Rose, for appellee.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court:

It

In reference to amendments of equity pleadings the courts have found it impracticable to lay down a rule that would govern all cases. This allowance must, at every stage of the cause, rest in the discretion of the court; and that discretion must depend largely on the special circumstances of each case. may be said, generally, that in passing upon applications to amend, the ends of justice should never be sacrificed to mere form, or by too rigid an adher ence to technical rules of practice. Undoubtedly, great caution should be exercised where the application comes after the litigation has continued for some time, or when the granting of it would cause serious inconvenience or expense to the opposite side. And an amendment should rarely, if ever, be permitted where it would materially change the very substance of the case made by the bill, and to which the parties have directed their proofs. The rule is thus stated in Lyon v. Tallmadge, 1 Johns. Ch. 188: “If the bill be found defective in its prayer for relief, or in proper parties, or in the omission or statement of fact or circumstance connected with the substance of the case, but not forming the substance itself, the amendment is usually granted. But the substance of the bill must contain ground for relief. There must be equity in the case, when fully stated and correctly applied to the proper parties, sufficient to warrant a decree." And in 1 Daniell, Ch. Pr. (5th Ed.) 384, the author, after alluding to the rule in reference to amendments, ol serves: "The instances, however, in which this will be done are confined to those where it appears, from the case made by the bill, that the plaintiff is entitled to relief, although different from that sought by the specific prayer; when the object of the proposed amendment is to make a new case, it will not be permitted." Whether the amendment in question changed the substance of the case, or made a new one, we proceed to inquire.

The original bill in this suit certainly states facts entitling complainants to some relief. He and his wife were in possession, asserting title, freed from all claim of whatever kind upon the part either of the heirs or of the estate

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