#### KIDD’S CASE. Thomas Kidd, Guardian of William S. Bolls, *v.*The United States.

*On Motion.*

*An infant, of tender years sues by his guardian to recover the proceeds of sixty-four bales of cotton captured in Mississippi. It appearing that the suit is improperly brought by the guardian, an amendment is allowed, in whieh he is substituted as administrator of the deceased mother of the infant, but the infant is the real and only party in interest. The administrator now moves to amend his petition by increasing the demand from sixty-four bales to one hundred and ninety-seven bales. At the time of making the motion the period preseribedby statute within which such suits must be brought has expired. lie also moves to be allowed to appear as administrator of the infant’s deceased father.*

I. In oases under *the Abandoned or capturedpiroperty Aet,*amendments to add or substitute parties are allowed liberally in furtherance of justice, though the period prescribed for bringing such actions by the act has expired. And a party will be allowed to sue in whatever capacities it is' necessary for him to appear to reach a fund.which the law intends shall go to the rightful claimant.

II. The provision in the *Abandoned or captured property Act,*(12 Stat. L., 820, § 3,) allowing the owner of captured property *“at any time within two years after the suppression of the rebellion to prefer his claim to the proceeds thereof in the Court of Claims,”*is not one of limitation but of jurisdiction. Statutes of limitation act -upon existing causes of action, but it is this statute alone which confers that right, and the right can be exercised only in such manner, at such places, and within snch time as the act prescribes.

III. The purpose of the *Abandoned or captured property Act,*(12 Stat. L., 820, § 3,) in requiring all suits agaiust the fund to be preferred in the Court of Claims within two ye'ars after the suppression of the rebellion, is to gather into one place, within a limited time, every claim to the proceeds of the captured property, so that the Government shall be able to know the sum total, and how to resist those which may be illegal. Therefore, after the period for bringing such suits has expired, no amendment can be allowed whieh will enable the claimant to sue for a larger quantity of captured property than that for which he at first preferred his claim.

*Mr. Joseph Casey*and *Mr. T.*W. *Bartley*for the motion:

The petition was filed in 18C8 by an attorney in fact, who was denied all access to the records in the Treasury Depart*260ment, to ascertain tbe number of bales seized and sold. He could then, from tbe bestligbthecouldgatberoutside,onlytraoe sixty-four bales into tbe custody and possession of tbe Government officers. He therefore alleged that as tbe number claimed. Since then tbe proofs herewith presented have been taken, and tbe evidence is clear and indisputable that tbe seizure was of one hundred and ninety-seven bales, and not of sixty-four. And this motion is made to correct the allegation in the petition, so as to make it correspond with tbe proofs in tbe description and amount of tbe property taken at tbe same time and place laid in tbe petition.

We claim that the court should allow tbe motion for tbe following reasons and authorities:

Tbe *Act September*24,1798, § 32,1 Stat. L., 91; 1 Bright., 41, and notes. And the *Act February*24, 1855, organizing, and *Aet March*3, 1863, re-organizing this court.

Under the statute of 1798 above quoted tbe practice has been similar to that under tbe statute of *jeo fails,*in England. Tbe rule deducible from the cases under tbe statute, and at common law, seems to us to be, that where tbe cause of action remains tbe same, and grows out of tbe same transactions, tbe courts will permit amendments, either in form or substance, at any stage of tbe cause, to permit a failure of justice. This rule has, in some peculiar cases, been extended, so as even to allow a new and substantive cause of action to be introduced by way of amendment, long after tbe bringing of the original suit. Where tbe matter to be added by way of amendment *grows*out of tbe original transaction declared on, it is not for a npw cause of action. (Tidd’s Practice, p. 096, and note.) *(Raslcins*v. *Berris,) 23 Vt.,*(8 Washb.,) 673.

Or allowed to allege a conversion. (3 Bed. Me., 353.) Or to insert a new ground for damages after general demurrer. *(Ten Fyeh*v. *The Bel. and Bar. Gan.,*4 Harr. N. J., 5.) Or a new count on a special agreement, where tbe original declaration counted in general *indebitatus assumpsit*for work and labor. *(Mixer*v. *Haworth,*21 Pick., 205.)

Where a defendant in bis plea set .out a judgment for a less than tbe true sum. Allowed to amend long after. (Barnes, 8; 2 Obitty’s Pep., 34, *Id.*302; 1 Howl. &Byl., 173.)

So in avowry for rent. See Tidd’s Practice, 709; Sayers, 172; 2 Burrows, 750; 1 Howl. & Byb, 173. See, also, for tbe *261general doctrine as stated by the Supreme Court of the United States, *liberty*v, *Moore,*(24 How., 147;) *Dougherty*v. Bentley, (1 Crunch O. 0., 281.)

An amendment increasing the damages may be made even after *verdict.*— Gregg v. *Grier,*(4 McLean Rep., 208.)

The court will set aside a verdict in favor of a plaintiff for a sum greater than the damages laid in the declaration, in order to give him leave to amend by increasing the damages. (7 Term Rep., 132; 17 Johns. Rep., Ill; 3 Wend., 356; Graham’s Pract., 654-5.)

Because the statute of limitations would otherwise bar the claim, is a cogent reason for introducing the matter by way of amendment. Thus: When a plaintiff declared as executor, on a promise to his testator, and issue was joined on a plea of the statute of limitations, the court of K. B., after two terms, permitted an amendment laying the promise to have been made to himself to save the statute of limitations. Tidd’s Prac., 698; 2 Strange, 890; Fitzg., 193; 1 Barnard, 408, 418; Tidd’s Prac., p. 697; 1 Wils., 149; Say. Rep., 235.

In *MillerY. Watson,*(6 Wend., 506,) an amendment setting up a special agreement allowed after three trials, and when the suit had been pending for nine years, and after it was held that plaintiff could not recover on the common counts; and on the ground that the statute of limitations would bar a new action. The case of *Williams*v. *Ooojoer*(1 Hill, 637) holds that a new cause of action, omitted by mistake, may be introduced by' amendment, and this though the statute of limitations has run against it. The case of *Tiernan*v. *Woodruf,*(5 McLean’s Rep., 135,) in the circuit court of the United States, is so full and clear to the point that it appears to us absolutely decisive of the question.

It is even held that such an amendment may be made in *qui tarn*or penal actions in a material matter, the complaint being fatally defective after a new action is barred by the statute of *limitations.*— Merriam v. *Langdon,*(10 Conn., 473;) *Bonfield*v. *Miller,*(2 Burrows, 1098.) In *Mace*v. *Lovett,*(5 Burr, 2833,) the allowance of the amendment was placed upon the distinct ground, that if not allowed the statute of limitations would bar the action. And the same principle was strongly maintained in *Maddoelc qui tam*v. *Sammet et al.,*(7 D. & E., T. Rep., 55.) *262The *same held*in 2 Arch. Prac., 231; 6 Term Pep., 543; Tidd’s Prac., 711; 2 Chitty’s Rep., 23-25.,

The amendment is not introductive of a new cause of action, but to state and set forth accurately the original ground of suit. -Here was a single act of capture and seizure of one hundred and ninety-seven bales of cotton, not one hundred and ninety-seven captures and seizures of each separate and distinct bale of cotton. The claimant could no more sever his cause of action than if he were suing for a barge-load of wheat of fifty thousand bushels. The *Act March*3,1863, section seven, reorganizing this court, makes a final judgment entered by it, or the Supreme Court on appeal, a complete bar to any other or further suit for the same cause of action. Thus there would be a failure of justice not only by a limitation of the remedy, but by the direct destruction of a right.

The amendment should be allowed,'because it would be inequitable and unjust for tbe United States to defeat the larger part of the claim of this minor, *for whom they are trustees,*by taking advantage of a mistake made by his guardian or attorney in the actual number of bales; more especially as the seizure was made amid the din, alarm, and confusion of war, and when all in charge of the property were compelled to fly from where it was stored, and seized, for safety, from the clash of contending armies.

We therefore submit with great confidence, that the claimant being a minor when the claim accrued, and being still in his minority, he is not barred by the *Act March 12,*1863; and the amendment should be allowed.

*Mr. Alex. Johnston*(with whom was the *Assistant Attorney-General)*opposed.

Drake, Ch. J.,

delivered the opinion of the court:

This is an action to recover the proceeds of sixty-four bales of cotton.

In the petition the claimant sued as guardian of William S. Rolls, an infant. The petition has been amended, so as that he appears, also, as administrator of Malvina A. Bolls. He now moves the court for leave to file a new amended petition, to take the place of the original petition and the amendment thereof, and the new petition is presented to the court with the *263motion. Upon inspecting it, we find that tbe substantial amendments sought to be made are: 1. The appearance of the claimant as administrator of Matthew Bolls, as well as of Mal-vina A. Bolls, and as guardian of William S. Bolls ,• and 2. The increase of the cotton alleged to have been sold by agents of the Treasury Department, from sixty-four to one hundred and ninety-seven bales.

On the first point there would probably be no objection to the proposed amendment. We have not hesitated, in cases of this description, to add or substitute parties; and no good reason now occurs to us why a single party may not sue in all the capacities in which it is necessary for him to appear, in order to reach a fund which the law intends shall go to the rightful claimant.

The question presented on the second point is that which was felt by the claimant’s counsel to require extended research and argument. It is believed to be now presented here for the first time.

The application is to increase more than threefold the number of bales of cotton originally alleged to have been sold. It is made more than four years after the expiration of the time within which suits for the proceeds of captured property might have been lawfully instituted, some five years after this suit was brought, and nearly ten years after the alleged sale of the cotton. If this amendment should be allowed, it would seem as if no similar amendment could well be refused to any pending case in which it might be applied for. Hence, the conclusion to be reached in this case has an importance beyond the mere amount involved.

It was earnestly urged by claimant’s counsel, that the question involved in this motion is merely one of *limitation;*and they cited authorities in support of the proposition, that courts may allow the introduction into a pending suit, by amendment of the declaration, of a new cause of action after a suit thereon has been barred by the statute of limitation, and that for the express purpose of avoiding that bar.

Whatever weight might be given to those authorities, if we regarded the question here as one of limitation, we do not consider them applicable, because we have arrived at the conclusion that the question is not one of limitation, but of jurisdiction.

*264Every statute of limitation acts upon existing causes of action, by prescribing a period of time within which they must be prosecuted by suit at law, and barring their prosecution after that time.

No such statute is involved in this case, for the simple and conclusive reason that, until the passage of the act of March 12, 1863, no person, whose property in the rebel States was captured by the military forces of the United States, or seized by the agents of the Treasury Department, had, or could possibly have had, any semblance of a right to sue the United States in this or any other court for the recovery of the proceeds of the sale of such property. It is that act alone which conferred that right. Of course it is conferred upon those only who are designated in the act; and they can exercise the right only in such manner, at such place, and within such time as the act prescribes.

Who is so designated? “ Any person claiming to have been the owner of any such abandoned or captured property.”

How’is the claim to be asserted ? By the claimant’s preferring in this court his claim to the proceeds of such property.

When may he prefer his claim ? “ At any time within two years after the suppression of the rebellion.”

This court, therefore, is invested with jurisdiction of any such claim preferred within that period of time, but has no jurisdiction of any claim preferred after the expiration of that time.

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. He would not have been barred of the right to prosecute an existing cause of action, but would simply not have acquired that right. It would have been a case of absence of right, not a case of debarred remedy.

That the legislature had a specific purpose in requiring claims of this kind 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 as that the Government should, within *265that 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.

So regarding it, we cannot, consistently with legal principle, allow to be done indirectly what cannot lawfully be done directly. Neither this claimant nor any other could now bring a suit here for the proceeds of captured property. The time for that has long since expired. Whoever did not within that time prefer his claim for such proceeds, in effect declared that he had no such claim. Whoever within that time preferred such a claim, in effect declared it to be his whole claim. In either case he is concluded; in the former by his silence, in the latter by his express declaration. He can no more unsay the latter than he can undo the former. The right which he asserted within the prescribed time, when all the facts were fresh, and when self-interest would at least have led him not to diminish his claim, is the only right which the Government has agreed to allow to be asserted here; and it is as much the right of the Government, after the expiration of that time, to be protected against the increase of a claim which had been timely preferred, as against a claim which had not within that time been pre- ’ ferred at all.

Leave to file the amended petition is refused, because it increases the quantity of property alleged to have been sold by the agents of the Treasury Department.