Thomas's administrator v. United States

15 Ct. Cl. 335 | Ct. Cl. | 1879

Lead Opinion

Eichaedson, J.,

delivered the opinion of the court:

This is a motion on the part of the claimant to so amend the petition as to make it conform in its allegations to the exact facts as they existed at the time of the institution of the action and as they have been proved before the court, correcting certain errors made by the counsel employed to commence the suit, through an imperfect knowledge of the case.

We shall make the merits of the motion plainer if we briefly state the present attitude of the parties and the present position of the pleadings, as the record now stands.

In the year 1863, John II. Thomas, a citizen and resident of Mississippi, owned a plantation in Yazoo County, in that State, upon which he resided with his family, and where he raised a large quantity of cotton. In June or July of that year, he OAvned and had in his possession on his plantation 112 bales of cotton, which were then and there seized by officers of the United States, intermingled with many lots seized from other parties in like manner, and taken to Vicksburg. So much of the whole as was not lost or destroyed was sold, and the proceeds Avere into the public Treasury.

Mr. Thomas died about the 20th of May, 1865, leaA’ing a will, by which he gave one-third of his estate, upon conditions, to his niece, and the remainder, both real and personal, to his wife, Mary W. Thomas, who, on the probate of the will in the probate court of Yazoo County, avÚs duly appointed sole executrix on the 24th of October, 1865, accepted the trust, gave bond, and continued to act as executrix until her death, March 30, 1874.

On the 10th of August, 1868, Mary W. Thomas gave a written power of attorney, executed and acknowledged in Mississippi, to 13. D. Whitney and Harris & Harris, for her and in her name “to collect from the Treasury Department of the United States, or from any agent or officer of the Government' of the United States, all sums of money due or coming to her for cotton taken by officers or agents of the United States, and to from time to time furnish, any further evidence necessary or that may be demanded to establish sufficient proof of her loss of said cotton so taken as aforesaid, and all other matters necessary to establish her said claim in the Court of Claims.”

Three days afterward, Mr. Whitney, in the city of Washington, drew up, signed, and swore to the original, petition in this case, instituting the action in the name of Mary W. Thomas, without styling her executrix of the will of John H. Thomas, deceased, and alleging that'“in the month of July, 1863, she was the owner and in possession of 112 bales of cotton at her residence on her plantation on Poketa Lake, seven miles from Yazoo City, in said county ” of Yazoo. Six days later, on the last day allowed for filing petitions finder the abandoned and captured property act, Mr. Whitney filed the petition in this court.

We have no doubt that all the errors now sought to be corrected arose in good faith from inadvertence of counsel by reason of the want of a knowledge of the facts in the case and the difficulty of obtaining information from his client in due season.

Such was the conclusion of the court on the former hearing, when it said: “ If the case could be considered on its merits, we should have little doubt that the error arose from a woman’s blunder in half stating her case to her lawyer.” The Chief Justice and other judges concurred in that view.

It is easy to understand how the widow of John H. Thomas, the sole executrix of his will, and the principal legatee and devi-see of his estate, should have referred to tbe cotton as hers and on her plantation, and how she should have neglected to instruct her counsel as to the fiduciary capacity in which she was acting, and as to the technical legal title to the cotton at the time of its seizure j and it is equally easy to understand how Mr. Whitney fell into an error as to the title, situated, as he was, more than a thousand miles from his client, and having only a few days remaining in which to hurry to commence the action. The petition was inartistically drawn, and the manuscript itself bears internal evidence of having been written in great haste and with little care and attention. While the first part of the petition describes Mary W. Thomas and refers to “her” and ■“hers,” tbe last part uses tbe pronouns “be,” “him,” and “his,” in reference to tbe claimant.

Besides, tbe attorney for Mrs. Thomas, who drew the petition, Mr. Whitney, has made affidavit that “this error in tbe case arose from tbe misapprehension and mistake of counsel in 'this case, arising, as be believes, from Mrs. Thomas being an aged and infirm lady, living in a remote place, having but little business knowledge or capacity, so as to enable her to correspond intelligently with her attorney and counsel.”

In 1873 this case and a large number of others, all brought to recover - tbe proceeds of different interests in intermingled cotton, were referred to a commissioner of this court. (10 C. Cls. R., 502; 92 U. S., 651; 11 C. Cls. R., 477.) In 1875 tbe commissioner made a report-, in which be found tbe quantity of intermingled cotton seized and sold, the amount of the proceeds, and tbe interests and shares of the respective owners and claimants of the funds.

In this case be reported tbe 112 bales of cotton to havebeen,,at the time of seizure, tbe property of John II. Thomas, deceased, and “ that tbe estate of said deceased is entitled to recover at tbe rate of $177.55 per bale,” in all, $19,885.60.

Thus it was through tbe commissioner’s report that tbe error In tbe petition as to tbe legal title to tbe cotton in question at the time of its seizure and tbe representative capacity of tbe claimant first became known and appeared upon tbe record. Tbe order of reference provided that tbe cases referred should be brought to a bearing by motion to confirm the report, and that they should be beard upon exceptions filed by tbe parties. This case cam eto a-hearing April 26,1875, and no exceptions to tbe report in this matter were filed or taken by the defendants. On tbe 24th of May, 1875, an order was made confirming tbe report and directing judgment for' the claimant in this case among others, but tbe entry of judgment has been ever since suspended. (10 C. Cls. R., 518.) Tbe commissioner’s fees were assessed upon tbe claimants in whose favor judgments were recovered, according to tbe order of tbe court, in proportion to tbe amount ■of tbeir respective claims; and on tbe 31st of May, 1875, the «claimant’s counsel paid tbe sum of $137.92 as the claimant’s proportion in this case.

Tbe administrator of tbe estate of Mary W. Thomas, deceased, has been admitted to prosecute-the action, and has made tbe motion now under consideration to amend tlie petition so as to state ber case as it should have been stated in the first place* with the purpose, no doubt, of laying the foundation for the administrator de bonis non of the estate of her husband, John H. Thomas, to appear and be substituted as the claimant to prosecute the case to final judgment.

Thus it is apparent that, should the present motion be granted, and should it be followed by a motion to substitute as plaintiff the administrator.de bonis non of John II. Thomas, and should that motion also be granted, the pleadings will then set up: 1st. A demand to recover the proceeds of the identical 112 bales of cotton which were described in the original petition in this suit, and the seizure of which was therein set forth. 2d. Au assertion of title and right of recovery at the time of the seizure in the identical person described in the petition as the owner-at that time.

The petition as it now stands, and the petition as it will stand if amended, will be substantially alike as to the property claimed and as to the party claiming it at the time of the commencement of the suit.

There -will, however, be a difference upon one point, between the original petition and the amended petition. So far as the facts are now developed, the owner of the property at the time of the seizure is not correctly described in the original petition. The proof shows that it was owned by John H. Thomas at the-time of the seizure, and by Mary W. Thomas as his executrix at the time of the commencement of the suit. It is urged that a change in the allegation in this respect will introduce a new-cause of action in favor of a new party, and that the court should therefore pause before allowing it.

The present motion has great equities. At the time the action was brought, Mary W. Thomas was the only person entitled, or who ever had been entitled, to institute proceedings in this court for the recovery of the proceeds of the cotton. Her husband had died before the suppression of the rebellion, and so never had a right to come into this court, according to the decision in Tibbett's Case (1 C. Cls. R., 169). Mary W. Thomas, was his widow, principal legatee, and sole executrix-. Unskilled in the forms and requirements of law, she neglected to state her case correctly to her counsel; and her counsel erred in not, drawing her petition so as to describe her as executrix, and so. as to allege that the cotton at the time of seizure was the property of her testator. We have shown, and we And, that the cotton, the proceeds of which are now sought to bo recovered, is the same as that referred to in the original petition, and that no new cause of action is now sot up by the amendment. It appears, also, that the defendants have not been misled or injured by the mistakes of counsel and of his client; that all the other claimants to this intermingled cotton fund have had judgment for their proportions, and that the balance which arose from the cotton of John H. Thomas now awaits the decision of this case for its final disposition. There is no other claimant to it.

There are no persons directly interested in this property who are unrepresented here, and therefore no such interests can be imperiled. The representative of the husband is here seeking to come in. The representative of the wife is in possession of the suit, and consenting to the change. Her next of kin cannot appear here either to further or prevent the granting of this motion. Any suggestion touching them may, therefore, be dismissed without further notice.

The main question is whether there is any inflexible rule of law forbidding us to do equity by granting the motion. The power of the court in this respect is to be gathered in part from the statute, and in part from the decisions of other courts of law. In resorting to the latter sources of authority, wo must remember that the Court of Claims is not a mere common-law court, and is not restrained by narrow rules of technical pleading. It is a court of limited jurisdiction, but of broad powers within' the scope of its jurisdiction, created in order to enable honest claimants to reach the Treasury; and it is not allowed to interpose purely technical barriers between them and the payment of just claims. The Supreme Court has held that “the Court of Claims, in deciding upon the rights of claimants, is not bound by any special rules of pleading.” (Burns’s Case, 12 Wall., 246.)

In Padelford's Case (9 Wall., 531; C. Cls. R., 144), the Chief Justice, in delivering the opinion of the Supreme Court, said:

“The captured and abandoned property act of March, 12, 1863, under which the claim in this case was made, has been frequently under the consideration of the court. In the several cases decided during the term * * * it has been held to be remedial in its nature, requiring such a liberal construction as will give effect to the beneficent intention of Congress.”

By tbe Revised Statutes it is provided:

“Sec. 954. No summons, writ, declaration, return, process, judgment, or other proceedings in civil causes in any .court of the United States shall be abated, arrested, quashed, or reversed for any defect or want of form; but such court shall proceed and give judgment according as the right of the cause and matter in law shall appear to it, without regarding any such defect or want of form, except, &c.; and such court shall amend every such defect and want of form, &o.; and 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, therefore, the proposed amendments relate only to defects and want of form, the court is bound to allow them. The statute is peremptory and leaves nothing to discretion, but expressly requires the court to amend every such defect or want of form. All other amendments are left, by the last part of the section, entirely to the judgment and discretion of the court.

Like authority is conferred by statutes upon the courts of the several States and of England; and everywhere the discretion is exercised with great liberality in the allowance of amendments for the furtherance of justice. When errors in the pleadings, either of form or substance, have not misled the opposite party, and can be corrected without doing manifest injustice and injury to any one, motions to amend the proceedings so as to fairly and correctly present the real controversy between the parties are always allowed.

The court will adopt a liberal course in allowing such amendments as are designed to present the case as both parties might reasonably be held to have understood it, from the proceedings which brought them into court, however imperfectly and incorrectly expressed, through mere inadvertence. It will refuse amendments only when they propose to introduce new parties not in privity of interest with’ those who instituted the proceedings ; or to introduce an entirely new cause of action; or when offered in an action to enforce a penalty, in which the complainant is granted little indulgence; or where the opposite party has been misled; or where the allowance of the amendment would give one party an unfair advantage over the other.

Long after the restraining rules of the common law were adopted, and when, perhaps, they were more rigidly enforced than they are now, the precise question which we are to pass upon came before courts in England and in this country. They had to decide, as we have to decide, whether a change in the .character in which the plaintiff sues, as, for instance, from individual to representative capacity, or the reverse, necessarily works such a change in the subject-matter of the suit as to make it imperative upon a court to disallow it, even if the refusal will permit the intervention of the statute of limitations as a bar to recovery by the real party in interest.

It is said in Tidd’s Practice (vol. 2, 9th ed., 698) that—

“Where the plaintiffs declared as executors on a promise to their testator and issue was joined on a plea of the statute of limitations, the court of King’s Bench, after two terms, permitted the plaintiffs to amend by laying the promise to have been made to themselves. But the amendment in this case was under particular circumstances; and if it had not been allowed, the action would have been lost by the running of the statute of limitations.”

Carne & Vivyan v. Malins et al. (6 Eng. L. & E., 568) is a case directly in point. A firm carried on business as A, B & C. At the time of an alleged debt being contracted, B and 0 were surviving, and an action was commenced in their names. It was then discovered that at the time of the debt was contracted eight other persons Avere beneficially interested in the firm. The Court of Exchequer alloAved the writ and other proceedings to be amended by adding the names of these persons, in order to avoid the effect of the statute of limitations. Baron Parke, in rendering the judgment of the court, said:

“The court, having considered the authorities on the subject, and the serious consequences which would follow to the plaintiffs if the application were refused, are of opinion that the amendment should be allowed.”

Nor is this liberality and sense of justice in the English courts confined to amendments in describing the plaintiff. In another ease in the same court, a plaintiff who had suffered a nonsuit in an action against a firm on the ground that twro of the defendants were not members of the firm at the time of the accruing of the cause, was permitted to have the nonsuit set aside and to amend his declaration by striking out the two defendants erroneously included in the action, in order to prevent the operation of the statute of limitations. (Crawford v. Cocks et al., 3 Eng. L. & E., 594.)

The American courts have either led or folloAved the liberal course of the English courts.

In the case of Tiernan's Executor v. Woodruff (5 McLean, 135), tbe court, “from a careful and laborious consideration'of the cases, both in England and this country,” held that an amendment may be allowed introductory even of a new cause of action “ especially where such cause is outlawed by the statute.” And this case is cited and approved by the Supreme Court in Tilton v. Cofield (93 U. S., 166).

In Alabama it is held that it is no inadmissible departure from the summons to amend the complaint so as to show the capacity in which the plaintiff sues. Although the summons may be in favor of the plaintiff as an individual, it is permissible for him on general process to declare as. an administrator. (Crimm v. Crawford, 29 Ala., 623.)

In Connecticut a writ of attachment in favor of A and B, and D (as the executor of C), on a note payable to A, B, and C, was served on the real estate of the maker of the note after the death of C. After the return of the writ it was amended by erasing the name of D, leaving the action to proceed in the names of A and B, as survivors. It was held that the amendment was allowable, and that the lien created by the attachment was not thereby dissolved. (Johnson v. Huntington, 13 Conn., 47.)

In Maine an action of trespass gu. el. was brought charging-the defendant with injury to the plaintiffs’ property. The court allowed them to amend by setting forth that they sued as deacons and overseers of a Society of Shakers. (Anderson v. Brock, 3 Greenl., 243.)

The Supreme Court of Massachusetts held that it has power, independently of statute, to allow the name of a co-defendant, who was not liable, to be struck out of a writ in an action on contract. (Fitch v. Stevens, 2 Met., 505.) In a later case the same court held that it was within its discretion, after a verdict for the demandants in a real action, to allow an amendment by striking out the name of one of the demandants who with her husband, is named as claiming a share of the premises in her right, but who, in fact, died before the date of the writ, and by inserting a claim by the husband to hold her share as tenant by the curtesy. (Emery v. Osgood, 1 Allen, 244.)

In Texas it has been held that where one administering on an estate has brought suit in his individual capacity, he may by amendment make himself a party plaintiff in his represent-alive character, if the estate he represents has an interest in the recovery sought. (Smith v. Anderson, 39 Tex., 496.)

And in Illinois, in a suit by an administrator on a policy of insurance, an amendment was allowed whereby the administrator was dismissed from the action, and the widow and heirs of the assured substituted as plaintiffs, where they were the proper parties to sue. (Teutonic Life Insurance Co. v. Mueller, 77 Ill., 22.)

The practice in Louisiana conforms to that in the other States and in England. Tlius where a party instituted a suit as tutrix or guardian of minor children, for a debt, she was allowed to amend and to carry on her suit as administratrix of her husband, Avho was dead. The court said that as administratrix she was in a capacity to claim the entire debt for the benefit of the minors as well as the creditors, and the amendment did not alter the nature of the demand. (Womack v. Womack, 2 Ann., 339; Richardson v. Fenner, 10 Ann., 600; Jilks v. Smith, 5 Ann., 674.) The case of Duncan v. Helm (21 Ann., 304) does not conflict with these authorities. On close examination it will be found to have no application to a case like this. .

These authorities might be multiplied indefinitely. Some of them are founded upon statutes and some upon general rules of common law. All recognize the propriety of granting such an amendment as is now sought for, when it is necessary to the futherance of justice. One and all show conclusively that the substitution of a plaintiff in a representative character for himself individually is not regarded by courts of the highest authority as a substantial change either in the parties to or the subject-matter of the action. For if it be an inflexible rule that no amendment will be allowed which does effect such changes, it must inevitably follow that the amendments which have been allowed do not, in the opinion of the courts which allowed them, effect such changes.

It only remains to inquire whether there is anything in the captured and abandoned property act, or in the nature of the proceedings authorized by it, which precludes the court from giving the benefit of these just and equitable rules to suitors in those proceedings. In the hearing on the former motions (12 C. Cls. R., 273) the majority of the court met with a jurisdictional bar which they felt themselves unable to surmount, in the clause which provides that “ any person claiming to have been the owner of any such abandoned or captured property naay at any time within tico years after the stvpjpression of the rebellion prefer bis claim to the proceeds thereof in the Court of Claims.”

The opinion of the majority then rested solely upon that proposition. The whole argument against granting the motion is founded upon it. If there is nothing in it, there is no reason why we should not yield to the whole current of authority.

"We hare given this proposition careful examination and diligent inquiry. The conclusion which we reach is this:

The bar of an ordinary statute of limitations practically differs from the bar in force in this court only in this: that in the former the court is dispossessed of its jurisdiction to remedy the plaintiffs wrong only by the act of the defendant in pleading the statute; in the latter it is dispossessed whenever the statute is brought to its notice in any way, by the defendant or the plaintiff, or otherwise. In both the court has full jurisdiction of the subject-matter when the action is begun in time; in neither does the disability grow out of the nature of the subject or of the remedy; in both it arises simply from the lapse of time. There is an absolute similarity between the two in every respect except the one which we have indicated.

These views are fully sustained by the decision of the Supreme Court in Jackson v. Austin (10 Pet., 480).

It will be observed that in several of the cases iu which the courts have granted amendments similar to that now prayed for, the statutory period had elapsed, and the defendants stood ready to raise the statutory bar against a new action. The court assumed that they would do so, and allowed the amendments solely for the purpose of retaining jurisdiction of the subject-matter and administering justice. This removes the only distinction between the effect of the bar of the ordinary statute of limitation and that of the bar in question, and completes the parallel. The bar in both is about to be raised; the court in both is about to be deprived of jurisdiction; the amendments in the one case are allowed for the purpose of escaping from these results. With equal reason they should be allowed in the other. It seems to us that the cited opinions become directly applicable to the decision of the present motion and not only warrant, but require the court to render it in accordance with their equitable spirit.

There is certainly no equity in the proposition that the court, has no jurisdiction because the two years have expired in which-claimants were allowed to bring their actions under the captured and abandoned property act. The rightful claimant did' come into court within the time allowed, and only inadvertently neglected to describe the representative capacity in which she-sued, and to correctly describe the ownership of the cotton at-the time of seizure. The proper parties were before the court in due time; the number of bales of cotton was exactly given; and the fact of their capture by the military forces of the government was alleged, and the place where they were taken,, though incorrectly described, was sufficiently designated to indicate the specific cotton referred to. It would have been a sufficient allegation to lay the foundation for an amendment more-fully setting forth her case if she had alleged simply that she claimed the proceeds in the Treasury of 112 bales of cotton seized in July, 18(53, in Yazoo County, Mississippi. She did in fact make that allegation, but coupled it with descriptions-which proved to be erroneous.

There is no conflict of interest here between claimants. There-never has been. The same individual has from first to last stood at the bar of this court, asking the same judgment for the same cause of action, and now prays only that her real capacity and interest as her husband’s representative shall appear of record.

There was, therefore, enough in the original petition to give the court jurisdiction of the parties and of the subject-matter, and there is enough by which to amend.

In Randolph Ex. v. Barrett Ex. (16 Pet., 138), the Supreme-Court say “the power of the court to authorize amendments where there is anything to amend by is undoubted.”

The precedents of this court are all in entire accord with the-views of the law and -of our duty which we have here expressed,, except the decision on the previous motions in this case already alluded to.

In the case of Jackson, assignee of Frémont (1 C. Cls. R., 260, and 2 ib., 461), it was held that the assignee could not maintain an action in his own name, and an amendment was allowed, to-save the bar of the statute of limitations, making Frémont, the assignor, the party claimant. In Cowan's Case (5 ib., 106) the action was brought in the name of the heirs of the deceased •owner of tbe cotton; and after tbe two years’ limitation had •expired, the court allowed the administrator of the owner to be substituted to prosecute the action in order to save the rights •of the parties. Similar amendments were allowed in Parran’s Case (7 ib., 450) and in Green’s Case (7 ib., 496).

In Cowan’s Case (5 ib., 106) this court said :

“The object of the statute was to secure all claims being presented within this fixed and definite period. It seems'"to us that this object of the statute was substantially attained if the real parties in interest notified the government, by suit brought within the proper time, of their interest in these particular pro-meeds in the Treasury, and that it is of little consequence ■whether the suit was commenced by the right or the wrong representative, so long as it was brought for the party really entitled to receive the net proceeds and so long' as the interest represented remains unchanged.”

In the Elgee Cotton Cases (7 ib., 605; 22 Wall., 180), an -■■action was brought, in 1866, for the recovery of the proceeds of 582 bales of cotton by the several heirs of John K. Elgee, deceased, one of whom, a daughter, Mrs. Gaussen, had been appointed as executrix of his will, but was not so declared in the petition. In 1870 the action was dismissed. In 1871 it was reinstated; motions were allowed discontinuing as to all the ■claimants except Mrs. Gaussen, and amending the petition so as to declare her to be executrix, according to the fact. She recovered judgment for part of the proceeds. An appeal was taken to the Supreme Court, where objection was made to the .right of this court to allow such amendments after two years’ limitation had expired, and was there fully argued. The court gave judgment in favor of the executrix, and, in a long opinion ■on other points, did not consider this objection of importance ■enough to be noticed. The reporter in 22 Wallace makes a mistake, and says that Elgee died after action brought; but we have no idea that the Supreme Court made a mistake on a point :so clearly put and so fully argued. They intended to sustain •the amendments allowed by this court, and they did in fact do so.

It is true that in all the cases here cited there was a more .accurate description of the property in question than in this case; but as we have shown that the defendants have not been misled by the variance in this petition, that difference between -the cases becomes immaterial. Besides, even where there has ■been variance between the allegation and the proof as to the ownership and description of the property, both this court and the Supreme Court have been equally liberal in allowing amendments and sustaining the claim as proved. In the case of Francis E. & Ramon Molina (6 C. Cls. R., 269), the claimants brought their action to recover the proceeds of 24 bales of cotton alleged to be owned by them jointly. They proved the seizure of the same number of bales owned by one of the claimants alone. An amendment was allowed so that the sole owner could recover, and judgment was rendered in his favor.

In Villalonga’s Case (8 ib., 452; 10 ib., 22, 429; 23 Wall., 35) the only description of the property and its ownership by the claimant was that u at the time of the capture of the city of Savannah * * * in the month of December, 1864, he was then and there possessed, in Ms own right, of 493 bales of cotton, which were then and there Ms men property, and which were then and there duly stored; marked, and numbered.” At the trial he proved only 19G bales as his own property, possessed in his own right. But he also proved that he had a lien for advances on 297 other bales of cotton in his possession owned by other parties. lie was allowed to recover, and judgment was rendered in his favor for his advances on the cotton owned by the other parties, as well as for the proceeds of that which he proved to be his in his own right, notwithstanding the variance.

Mrs. Mount’s Case (11 C. Cls. R., 508), in which the court refused to admit the administrator of the true owner of the property after the two years’ limitation expired, may seem, upon a superficial reading, to be precisely like this case; but on careful examination it will be found like it only in form. In substance and in fact it is entirely different. During the lifetime of her husband, Mrs. Mount brought her action to recover the proceeds of five bales of cotton alleged to have been owned by her and stored in her gin-house on the plantation owned and cultivated by'her. The proof showed that the cotton in question belonged in fact to her husband, who was living when the action was commenced, and who lived till several years after the two years’ limitation had expired, when his son was appointed administrator on his estate. Mrs. Mount, therefore, never had any standing in court. She was in no sense and m no capacity whatever either the owner of the property or entitled to its proceeds. No amendment could have been made to cure the fatal defect of the case. There was no mistake of counsel or client. Her claim was one adverse to that of her living husband ; and an adverse party in interest cannot be allowed to come into court and to be substituted as claimant in an action brought by one with whom he is shown to have no privity of interest. The administrator of the husband had no greater rights than his intestate, had; the husband could not have been substituted as claimant during his lifetime after the term had expired within which he might have sued, so neither could the administrator after the death of his intestate.

In Hamner's Case (13 C. Cls. R., 7) a precisely similar difficulty was found as that which arose in Mount’s case, and for like reasons a motion to substitute the administrator of the deceased owner was overruled.

The party who sought to be admitted to prosecute the action had no privity of interest with the claimant who brought the suit. The allegations of the latter in his petition were adverse to the claim set up by the former, and could not be amended without bringing in an entirely new party not previously before the court in any capacity.

Thus we find ourselves on every consideration forced to a different conclusion from tliat formerly reached by the majority of the court when refusing to allow the previous motions. Those motions were imperfectly drawn, although designed to accomplish the same results now sought. (12 C. Cls. R., 273.) The decision then was made by a bare majority of the judges. Two of those who dissented have retired from the bench, and the two who have taken their iffaces agree with their immediate predecessors and are of opinion that the motion should have been allowed. One of the judges who then concurred in the decision, now, upon a more perfect presentation of the case and after more full and mature consideration of the whole subject, is of opinion that counsel should have been allowed to amend in proper form, so as to correct the manifest errors in the body of the petition, and that the amendments and the motion to substitute the administrator de bonis non of John H. Thomas should ' have been granted.

The fact was not then distinctly presented, as it now is, that Mr. Thomas, the husband, never could have brought an action in this court, he having died before the court was open to claimants under the Captured or abandoned property Act (Tibbett’s Case, 1 C. Cls. R., 169). The case shows thafc material fact to have been overlooked by counsel, and therefore not considered by the court.

Another of the then concurring judges is of opinion that the court should allow this motion if it has jurisdiction to do so, and he assents to the entry of such allowance in order that the case may be put in such condition that the question may be determined by the Supreme Court on appeal.

A merely interlocutory decree, prescribing the manner of proceeding deemed necessary by the court to arrive at a final decision, remains under its control, and does not constitute res judicata. (4 La. Ann., 211; Henn. Dig., 764, Nos. 13, 14.)

The authority of that decision, therefore, under the circumstances, we do not consider as finally concluding us upon the important questions involved in this motion.

On the whole, we are of opinion that on principle, precedent, and authority the motion should be allowed.

The order of the court is that, finding that the proposed amendments are for the purpose of correcting errors inadvertently made by counsel through an imperfect knowledge of the facts in the case and not in order to introduce a new cause of action; that if allowed the amended petition will correctly set out the claim as it should have been originally presented; and that no delay, inconvenience, or injury lias been caused to the defendants by reason of said errors, and that the allowance of the amendments' will be in furtherance of justice, the court allows the motion.

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Dissenting Opinion

Drake, Ch. J'.,

dissenting:

I cannot concur in the action of the majority of the court on this motion, and will state the grounds of my dissent.

In doing so, I shall treat the matter as if, besides the motion to amend the petition now passed upon, there' were before us, also, a motion to substitute the administrator of John H. Thomas as claimant; for, upon the allowance of the present motion, the case is put in the position of the administrator of Mary W. Thomas suing to recover a claim in favor of John H. Thomas. The motion for substitution must therefore necessarily follow .and be allowed.

Were there no question of jurisdiction involved — were it merely a matter appealing to tbe discretion of tbe court in furtherance of justice, and conflicting with no statute, nor with any settled legal principles, nor with rights of others, I might readily agree with my colleagues. But as their action is, in my judgment, not only without jurisdiction, but contrary to well-established legal principles, I am compelled to object to it.

The Abandoned and captured property Act required all claims under it to be preferred in this court “ within two years after the suppression of the rebellion”; and the two years expired on the 20th of August, 1868.

On the 19th of that month, there was filed in this court the petition of Mrs. Mary W. Thomas, of Yazoo County, Mississippi, for the proceeds of 112 bales of cotton, of which the petition averred that she was the owner and in possession, at her residence on her plantation in said county, and which were taken from her by United States forces on the 16th of July, 1863,. without her consent and against her will, and turned over to the agents of the Treasury Department; by whom the cotton was sold, and the proceeds paid into the Treasury of the United States..

When that petition was filed, Mary W. Thomas was the-widow and executrix of John H. Thomas. She has since died,, and her administrator has been admitted to prosecute the suit..

This is not a case, such as we have several times had before-us, of letting in a new party in aid of the recovery of a claim preferred in time. In such cases I have always concurred with my colleagues in favor of that proceeding. Nor is it the case of a suit brought by heirs for the proceeds of cotton of their parent’s, and the administrator or executor of the parent is ■ let in to prosecute the claim of the parent’s estate, because the heirs could not legally do so. In such a case I have unhesitatingly sustained the change of parties, as clearly within the spirit of the act. But our action in cases of those descriptions is no precedent for that now taken, for in all of them the claim was still the same throughout, while here the claim let in is a different one from that sued on.

The simple, single, and distinguishing question now presented is, whether, nearly twelve years after the expiration of the time limited by the act for presenting claims here, we have the legal power to let in a claimant and a claim neither of which has, up to this time, ever been here.

This question was before us on a former occasion in this case, on a motion identical with that which has now been allowed, and the court refused to take jurisdiction of the application to substitute John H. Thomas’s administrator for the administrator of Mary W. Thomas. (12 C. Cls. R., 273.)

Notwithstanding that deliberate decision of the court, the thing is now done, as expressed in the opinion of the majority, for the purpose of correcting errors inadvertently made by counsel through an imperfect knowledge of the facts in the case, and not in order to introduce a new cause of action.

I do not agree that it has been shown that such errors of counsel were made; but will treat the subject on the basis of the majority.

Admitting that the lawyer who drew the petition had an imperfect knowledge of the facts in the case; and that th&purpose of the court in granting the motion is merely to correct the in-' advertent errors of counsel; and that the motion is not allowed ■in order to introduce a new cause of action; yet, as I conceive, the incontrovertible fact remains, and cannot be put out of sight, that the court does let in here, nearly twelve years after the 20th of August, 1868, a new claimant and a new cause of action, neither of which was ever here before. John H. Thomas’s representative supplants Mary W. Thomas’s, and John H. Thomas’s claim takes the place of hers. Her claim was pre-fered in time; his was not. Her claim rested on her ownership) of the cotton; his rests on Ms ownership of it. They are, beyond doubt, two several and distinct claims to the same proceeds of cotton, each resting on a different title from the other, and the allowance of either is necessarily fatal to the other; they cannot possibly co-exist.

Thus to substitute an untimely claim for a timely one is not only inconsistent with our previous ruling in this case, but also with other rulings in every case where an attempt has been made to bring in a new claim after the 20th of August, 1868. In no less than seven other instances, besides the one in this case, previously noticed, that attempt has been made, and in ¡ ■each it was frustrated. (Lamar's Case, 7 C. Cls. R., 603; Kidd’s Case, 8 ib., 259; Hill’s Case, ib., 361; Haycraft’s Case, ib., 483; Bellocque, Noblom & Co.’s Case, ib., 493; Mrs. Mount’s Case, 11 ib., 509; Hamner’s Case, 13 ib., 7.)

It would be useful to present here an abstract of each of these 1 cases, showing tbe facts and legal conclusions in each j but it would extend this opinion to too great length. I give, however, in brief, some of the expressions of the court applicable to the present case.

“The act is imperative that the owner shall prefer his claim in this court within two years after the suppression of the rebellion. (The Cowan Infants' Case.)

“ The claimant’s right to institute this suit depended, therefore, upon his doing so within those two years. If he did not prefer his claim within that time, he would- simply have had no right to appear here at all as a claimant under the act of March 12, 1863, and his position would have been just that which he 'would have occupied if that act had not been passed. (Kidd’s Case.)

“The attempt is to bring before the court a claim which was not preferred within the time allowed by law for preferring it. In whatever shape and toay that may he attempted, it cannot receive •our sanction, simply because this court has no jurisdiction of such a claim. (Hill’s Case.)

“The institution of a suit within two years after the suppression of the rebellion is indispensable to the jurisdiction of the court in any case. The law does not authorize any relaxation ■of that requirement for any reason whatever. The legislature has not yet made any provision authorizing parties to sue here after the expiration of that time, and we have no authority, on any ground whatever, to entertain any suit of this kind brought out of the time prescribed by the existiug law.” Haycraft’s Case.)

Mrs. Mount’s Case requires a more extended notice. The similarity between it and the present case is probably as remarkable as could be found between any two cases having different parties and different facts. There the suit was brought in the wife’s name, asserting her ownership; but the evidence tended to prove ownership in her husband; and she moved the court to allow an amendment of the petition letting in her husband’s claim and substituting his administrator as claimant. The court denied the motion in an opinion recounting its previous decisions, and which closed with the following words:

“In the light of these repeated rulings, the motion in this ■case cannot be allowed. It is simply an attempt to secure a standing in court for one who did not prefer his claim within the jurisdictional period of two years after the suppression of the rebellion, and who could not now institute a suit here for the proceeds involved in this case. That the party sought to be introduced was the husband of the claimant, and that she -desires him to take her place, does not materially distinguish the case from that of Hill, above cited, for the fact remains that the claim intended to be brought before us is one which was not preferred in this court within the time prescribed by. law. It is necessarily distinct from and adverse to that which the wife-preferred in her petition, else there were no necessity for removing her from the record. If the cotton was hers, but to enable her to recover the proceeds there must be a joinder of the husband, then such joinder would probably have been allowed if asked for, as in Green’s Case (7 C. Cls. R., 496). Such, however, is not this case. The entrance of the husband here is to be the exit of the wife; and so we should be called upon to render judgment in favor of one who never preferred a claim here until more than five years áfter the time allowed by law for doing so had expired. We have no jurisdiction to allow such a proceeding, and the motion of the claimant must therefore be overruled.”

If any case could arise here for adherence to the doctrine of stare decisis, it is the present one. In those seven cases the court expressed its unanimous judgment. To my mind it is a serious matter for a court to sweep away its previous repeated constructions of an important statute, as it seems to me has now been done.

It were, perhaps, sufficient to rest my dissent solely on those decisions; but there are other considerations which must be expressed.

The requirement that all claims should be preferred here within two years after the suppression of the rebellion, had, of course, a definite purpose, concerning which this court thus expressed itself in Kidd’s Case (8 C. Cls. R., 259):

“That the legislature had a specific purpose in requiring-claims of this bind to be preferred within a specified time cannot be doubted. The purpose seems to us to have been to gather into one place, within a limited time, every claim to the proceeds of captured property, so that the government should, within that time, be in a condition to know, first, the sum total of those claims, and, secondly, how to resist those which might be illegal, false, or unjust.”

To those remarks might have been appropriately added these further ones — that the absolute and immovable character of the limitation of time contained in the act is forcibly shown by the total absence from it of any saving clause, like that in the statute of limitations, in favor of married women, infants, lunatics, and other persons under legal disability to sue. The intent was that every claim should appear here within the prescribed time, regardless of the situs or the status of the person entitled to prefer it, and that none should be allowed, under any plea, to come here after that time. In view of that manifest intent, which shuts the door of this court peremptorily against those classes of disabled persons, whose rights all statutes of limitation so jealously and beneficently guard, is it conceivable that it could ever have been intended by the legislature, that, after the lapse of so many years as in this case, a new claimant and a new claim should be admitted here, on the ground that the lawyer, in drawing the petition in favor of that new claimant’s wife, in her own right, inadvertently erred? When before in the history of any system of jurisprude ncedid the blunder of a plaintiff’s lawyer confer a jurisdiction denied by express law V

If I have made a correct statement of the purpose of the act, it seems to me a patent error to say that it is in furtherance of justice to allow this motion. In judicial proceedings nothing is in furtherance of justice which itself does injustice; and I deem it sound law that no amendment is allowable in the interest of one party which is prejudicial to the rights of another party, unless the prejudice to the latter can, by statutory authority, be ■compensated for by the court’s imposing terms. (Wendell v. Mugridge, 19 N. H., 109; See v. Bobst, 9 Mo., 28; Trego v. Lewis, 58 Penn. St., 463; Crofford v. Cothran, 2 Sneed, 492.)

When, therefore, the act fixed a period within which all such ■claims should be preferred here, so that the government should be in a condition to know how to resist those which were illegal, false, or unjust, the government was entitled to every day of the time after the expiration of that period, to prepare for ■its defense against claims of either of those characters. It matters not that it may not have required every day; the point is, that it was entitled to it, not of grace or favor, but of absolute right, declared by its own express law. That right is totally set aside by allowing a new claim to be asserted here after the expiration of the statutory time. If the claim of John H. Thomas had been here before the 20th of August, 1868, the government could, and doubtless would, have prepared to defend against it, and might have done so successfully. Now, ¡however, it has to meet that claim for the first time, and to defend against it as best it can; only to find, most probably, that important documentary evidence has, in the interval, been lost, -and that witnesses have died, or disappeared, or become oblivious in memory, whose testimony might easily have been obtained eight or ten years ago, and have sufficed to defeat the claim. But whether so or not, the allowance of this motion disregards and sets at naught a right of the government, and places it in a position of disadvantage. In my opinion, there is no legal authority in the court to do that thing.

But is it in furtherance of justice to the heirs or the creditors of Mary W. Thomas’s estate — who, let it be noted, can have no hearing here — to listen to and allow a motion that pitches her claim over the bar and supplants it with another 1 Have they no rights here which we are bound to consider? Is her administrator entitled to assume that she has no claim — the very point we are placed here to determine upon a trial — and upon that assumption put it beyond the reach of her heirs or creditors ever to get any benefit from the claim? True, the evidence now in might at the trial tend to prove the ownership of the cotton in John H. Tilomas; but what have we to do with that on the hearing of this motion ? And who can say that other evidence might not yet be found to show the falsity or error of that, and establish the right of Mary W. Thomas ? What legal right has her administrator to deprive her estate of the opportunity to get such evidence? In my opinion, none whatever, when the interest of heirs or creditors, not parties to the suit, may thereby be injured or lost.

If, then, it be not in furtherance of justice to either the United States or Mary W. Thomas’s heirs or creditors to allow this motion, but positive injustice to the former, and probable wrong to the latter, it follows that it is only justice in favor of John H. Thomas’s estate that is to be furthered by the present action of the court. And that can be administered, as now asked and granted, only at the expense of both the government and the estate of Mary W. Thomas.

In every case of this kind the very foundation of the claim, without which it cannot for a moment stand, is the claimant’s-ownership of the cotton at the time of its siezure. (Carroll v. United States, 13 Wall., 151; The Elgee Cotton Cases, 22 ib., 180; United States v. Gillis, 95 U. S., 407.) If so, it was the undoubted legal right of the government, in every such case, to be informed in the petition who was the owner at that time;, so that it might investigate that fact, and, finding it falsely alleged, take steps to defeat the claim. And it had the further equally undoubted legal rig-lit, where a petition alleging a particular ownership remained on file until the jurisdictional period expired, to regard that ownership as the one, and the only one, that it would have occasion to investigate or resist; for the act authorized no change, after that, of the foundation of the claim.

All this, every claimant here was bound to know, and every one, doubtless, did know, including Mary W. Thomas. When, therefore, she gave a power of attorney to prosecute her claim, and, under it, her petition was hied averring her ownership of the cotton, and that petition has ever since been in this court, the government had and has a right to have that ownership, and no other, tried and passed upon by this court.

It was urged, as if it were a pivotal fact upon which our decision ought to turn, that the cotton to be named in the amended petition is the same named in the original petition. But that is not a pivotal fact. The identity of the cotton named in the two petitions is of no force, except to show that John H. Thomas’s administrator does not claim the proceeds of a different lot of cotton from that first named. Admit the identity, and it amounts to nothing justifying a recovery, under the amended petition, unless John H. Thomas’s oionership of it he proved. And, in proving that, the foundation of the case is changed; a new and different case is presented; and an ownership is established, of which, up to this time, the government has had no notice, though the law plainly required that it should have had notice of it on or before the 20th of August, 1868.

It was also urged that, when this suit was brought, Mary W. Thomas was the only person in the world who had a right to bring any suit for the proceeds of the cotton in question. That is quite true, whether the cotton was hers or her husband’s ; for she was a dual person, and happened to combine in herself dual rights, under one or the other of which the suit necessarily had to be brought; that is, she was Mary W. Thomas, and also Mary W. Thomas, executrix of John H. Thomas» But the executrix Mary had just the same relation to the individual Mary, in regard to the estate of John H., that any third person, who had been appointed executor, would have had — no more, no less.

Upon the fact of her dual relation to the matter is based the proposition that the person of Mary W. Thomas, being rightfully iu court, claiming iu Iier individual right, she, by that fact, becomes entitled to abandon her claim as an individual, and introduce a claim in favor of her dead husband’s estate, for the prosecution of which her husband’s administrator is to be made a party. I propose to subject that propositition to what I regard as a crucial test.

Were Mary W. Thomas now alive and here present, and were she to say to the court, “ I made a mistake in claiming those 112 bales of cotton as mine. They, in fact, belonged to my sister, who lived with me on my plantation. I therefore pray the court to let my petition be amended by averring my sister’s ownership, and making her the claimant in my place” — would not that be a far stronger case than the present, resting as it would, not upon a supposed and inferred error of her attorney, nearly twelve years after he drew the petition, but upon her own frank admission, in open court, of her own mistake? And would the court, on that admission, let her sister in as claimant? I cannot believe it possibe. But if, instead of naming her sister as the owner, she declared that her husband was the owner, and that it was her own mistake in having the suit brought in her name instead of his; would the court let him in? How could it, if it would not, in the other case, let in the sister ? .Would not both husband and sister be equally "strangers to the suit? And if the court would not let in either, why, upon the far weaker case now presented, should it let in the husband’s representative? And if it would not do either, on her personal statement and request, why should it be done when she. is dead, on her administrator’s motion, on an inference of her attorney’s error? Though she combined in herself her own personality as an individual and also her personality as executrix, she was, in her relation to this claim, only Mary W. Thomas, claiming iu her own right. As executrix, she had no sort of relation to it. If John Smith had been her husband’s executor, she could, after the 20th of August, 1868, no more have abandoned her claim and put him in her place to prosecute her husband’s claim, than she could have let in her sister, simply because the husband’s claim, whether prosecuted by her as executrix, or by John Smith as executor, was a wholly different claim from that set up.in her petition, and was not preferred within the period prescribed by law.

But, besides all the foregoing, there comes up a question as to tbe power of tbis court, considered as a court administering tbe common law, to allow sucb an amendment as tbis.

As a general rule, tbe allowance of amendments is witbin tbe discretion of a court, and tbe exercise of tbe discretion is not revisable on error, except in cases of abuse. But it is beld by many courts of bigb authority that there are some amendments which are not within tbe province of judicial discretion, because in law inadmissible.

As bearing- analogously on tbe present question are these two well-sustained propositions: First, that an amendment changing tbe form of action is inadmissible (Butterfield v. Harvell, 3 N. H., 1; Stevenson v. Mudgett, 10 ib., 338; Little v. Morgan, 31 ib., 499; Brown v. Leavitt, 52 ib., 619; Wilcox v. Sherman, 2 R. I., 540; Ramirez v. Murray, 5 Cal., 220; Bush v. Tilley, 49 Barb., 599; People v. Circuit Judge, 13 Mich., 206; Scholfield v. Fitzhugh, 1 C. Cir. C., 108; Ten Broeck v. Pendleton, 5 ib., 464; Barnes v. Quigley, 59 N. Y., 265), and, second, that an amendment is not allowable which would deprive tbe defendant of tbe benefit of tbe statute of limitations where be would otherwise be entitled to it. (The Harmony, 1 Gall., 123; Sicard’s Lessee v. Davis, 6 Pet., 124; Wright v. Hart, 44 Penn. St., 454; Pridgin v. Strickland, 8 Tex., 427; Williams v. Randan, 10 ib., 74; Crofford v. Cothran, 2 Sneed, 492; Van Syckels v. Perry, 3 Rob. [N. Y.], 621.)

But directly in point are two other well settled rules: First, that no amendment can be made adding a new plaintiff (Wilson v. Wallace, 8 S. & R., 53; Chamberlin v. Hite, 5 Watts, 373; Ayer v. Gleason, 60 Me., 207; Marsh River Lodge v. Inhabitants, &c., 61 ib., 585; Morris v. Barney, 1 C. Cir. C., 245; Chouteau, v. Hewitt, 10 Mo., 131), and, second, that the power of amendment does not authorize tbe introduction by tbe plaintiff of a new cause of action. (Milliken v. Whitehouse, 49 Me., 527; Parkman v. Nutting, 59 ib., 398; Butterfield v. Harrell, 3 N. H., 201; Lawrence v. Langley, 14 ib., 70; Carpenter v. Gookin, 2 Vt., 495; Haynes v. Morgan, 3 Mass., 208; Ball v. Claflin, 5 Pick., 303; Ross v. Bates, 2 Root, 198; Eagle v. Alver, 1 Johns. Cas., 332; Van Syckels v. Perry, 3 Rob. [N. Y.], 621; Peck v. Ward, 3 Duer, 647; Cunningham v. Day, 2 S. & R., 1; Farmers’ & M. Bank v. Israel, 6 ib., 294; Ebersoll v. King, 5 Binn., 53; Root v. O’Niel, 24 Penn. St., 326; Gardner v. Post, 43 ib., 19; Trego v. Lewis, 58 ib., 463; Wilbanks v. Willis, 2 Rich., 108; Maxwell v. Harrison, 8 G., 61; Williams v. Hollis, 19 ib., 313; Carter v. Reynolds, 6 Tex., 561; People v. Judges, &c., 1 Doug. [Mich.], 434; Kiphart v. Brennemen, 25 Ind., 152.)

Though the decisions, cited in support of the proposition that anew plaintiff cannot be introduced by amendment, would seem to be enough to sustain it without doubt or question, particularly when no contrary one, unless founded on express statute, can, as I believe, be found in the whole range of American reports, there is one other case which, because of its essential similarity to this, and of its having arisen in a State where the civil law is administered, should receive a distinct mention. In Louisiana, S. D. brought suit, as payee of certain notes, against the maker. The maker pleaded usury and payment, and claimed damages in reconvention. Afterwards, S. T). junior filed a supplemental and amended petition, representing that, through error of his counsel, the suit was brought in favor of S. D.; that S. D. is dead; and long before his death had transferred the notes to S. D. junior, who is now the owner thereof; whereupon S. D. junior asked leave to file this his supplemental and amended petition; which was allowed.

Upon this petition there was a trial, and judgment against S. D. junior, rejecting his demand, and decreeing that the defendant recover from him $2,750 in reconvention.

This judgment was reversed by the Supreme Court of Louisiana, which said: “The amended petition ought to have no effect beyond that of a suggestion of the death of the original plaintiff. It should not be permitted to substitute a new party plaintiff, especially on allegations of ownership in direct conflict with the original petition.” (Duncan v. Helm, 21 La. Ann., 303.)

Sustained by the numerous decisions.cited in support of these four propositions, I would not hesitate to disallow this motion, even if there were in the act no jurisdictional limitation of time. But when, besides them, I find myself, as I believe, sustained by the previous uniform course of our own decisions, and by the letter and spirit of the act from which we derive all our authority in cases of this description, I should do violence to my own convictions if I failed to express, even at this great length, my dissent from a proceeding which seems to me to be both unjust to the government and legally unjustifiable.

Nott, -I.,

delivered the following opinion:

As the diversity of opinion which exists, concerning the power of the court to allow this amendment, shows that the question is a doubtful one, I am of the opinion that, for the purposes of a review in the Supreme Court, the amendment should he allowed as of course, and the question of jurisdiction be reserved for consideration and opinion until a motion for judgment comes to be heard.

This court has always been ready to facilitate a review of its decisions. It was proper for the claimant’s counsel to come in and ask the court to put this matter in such a condition that the question of power can be reviewed by the Supreme Court, and if the request had been made when the former motions were passed upon, the court would doubtless have acceded. But it is not proper, in my opinion, for the claimant to renew a controversy which has been twice decided against him. The motion is as clearly res judicata as anything can be. The objection of the Assistant Attorney-General, that substantially the same application has been twice made, twice argued, twice considered by the court, and twice decided, is certainly well taken. Neither defendants nor claimants should be subjected to the endless vexation of having interlocutory motions repeated over and over again at the will of the defeated party.

' If the amendments now asked by the claimant are allowed as of course, for the purposes of review, the question of jurisdiction will remain open, and can be passed upon when an application for judgment is made, and if the court be against the claimant, be can then carry the case to the Supreme Court, and if it be against the defendants they can likewise appeal and review the question; but if the motion stand overruled, the claimant will be without redress. For this reason, I express no opinion on the question which is now for the third time the subject of argument and decision.