Parsons v. Lyman.

proceeding in the Court of Probate in time, can make no difference. They are bound, if the position of the defendants here is correct, by the proceeding, until and unless an appeal is taken. I cannot infer, therefore, that the Legislature has empowered the Probate Courts to judicially determine the rights of parties, often involving delicate and important questions, in a purely ex parte proceeding, in violation of what is termed, by numerous and eminent authorities, a fundamental principle of natural justice. If the power to judicially settle and adjust these accounts is to be deemed as inferentially given, then, I think, the duty to give reasonable notice of the time and place of its exercise, to the parties interested, must be deemed to be inferentially imposed upon the tribunal exercising it.

No notice appears to have been given to the plaintiffs of the intended settlement of these accounts. The answer impliedly admits this fact. They involve considerable sums, and their presentation and approval seem to have been simultaneous acts. No judicial proceeding was ever "pending " in the Court of Probate, upon which it could pronounce a binding decree on the plaintiffs, and, if it has assumed to exercise such a power, its exercise, so far as its judicial character is concerned, must be deemed void.

But I do not infer that the Court of Probate has assumed to act judicially upon any of these trustee accounts, since November 20th, 1849. As already intimated, the answer concedes that no notice was given of the time or place of hearing, and the only entries on the record warrant the inference that the action of the judge of Probate in the premises was rather clerical than judicial.

I am aware of the case of Hiscock's Appeal from Probate, (29 Conn. R., 61.) In the opinion of the Court of Errors, Mr. Justice Sanford remarks, that "there is no law which requires that notice shall be given to the ward to be present at the settlement with the Court of Probate of his guardian's account, nor is the jurisdiction of that Court, or the validity of its proceedings in regard to such settlement, affected by want

Parsons v. Lyman.

It

of such notice, or by the absence of the ward; the only effect of such want of notice and absence being, to extend the time allowed by law for appealing from the decree of the Court of Probate to the Superior Court." I have felt some embarrassment from this language of the Court, but I do not see that that precise question was necessarily involved in the case then before it. The Superior Court found that notice was in fact given, and that the party was present by attorney, but that he failed to appeal within the time limited by the statute. also appears, that the statutes relating to guardians expressly confer jurisdiction upon the Court of Probate to settle their accounts, and to hold that this can be done without notice certainly should require an express and unmistakable Act of the Legislature. Whether the relation of guardian and ward is the same as that of trustee and cestui que trust, I am not prepared to determine. But, if the statute had expressly given this power over trustees' accounts and dispensed with notice, I think the question, whether it would not be a proceeding in which persons might be "deprived of their property without due process of law," would be a very grave one indeed.

It follows, from these views, that the defendants must account in this Court, for all charges for services and disbursements made and rendered in the management of this trust since the 20th of November, 1849. There may be some items, in the earlier annual accounts, that properly pertain to their duties and disbursements as executors. The trustees will be fully protected in the premises on the hearing.

Elting v. Campbell.

BENJAMIN ELTING, SURVIVOR, &c.

vs.

DANIEL D. CAMPBELL AND OTHERS.

Where the declaration, in an action of trover, claimed, as damages, a sum less than that for which a verdict was rendered for the plaintiff, and he moved, after the verdict, to amend the declaration, by increasing the damages claimed to a sum larger than the verdict, and the defendant did not object to the amendment, provided a new trial should be granted: Held, that the amendment ought to be allowed, but only upon condition that the plaintiff relinquish the verdict, and pay the costs of the trial, and consent to a new trial.

(Before HALL, J., Northern District of New York, November 3d, 1863.)

THIS was an action of trover. The declaration was filed in 1852, and claimed $15,000 damages. At the trial, there was a verdict for the plaintiff, for $19,298.62. The plaintiff now moved that the declaration be amended, without prejudice to the verdict, by increasing the damages claimed, to $25,000. The defendants opposed the motion, unless it was to be granted upon condition that the verdict should be set aside and a new trial be granted.

HALL, J. As the defendants do not object to the amendment, upon condition that there shall be a new trial, it is not necessary to examine the question whether the Court has power, in its discretion, to grant the amendment asked. This will be taken for granted, and the only question will be as to the terms and conditions upon which the amendment should be allowed.

The practice in this Court is substantially that of the Supreme Court of the State under the Constitution of 1821 and the Revised Statutes; and, although the question in this case may be regarded as one depending upon the exercise of a judicial discretion, the practice of the State Courts under the Revised Statutes, if settled and uniform, should, unless there

Elting v. Campbell.

are very strong reasons in opposition, be followed on this motion.

The cases in the Courts of New York are not entirely consistent. Indeed, they are not likely to be uniform upon a question depending entirely on judicial discretion. In Pease v. Morgan, (7 Johnson, 468,) an amendment was allowed, in an action of assumpsit, after a verdict for the plaintiff and a writ of error, on the payment of costs subsequent to the filing of the declaration, the defendant having liberty to pay the demand recovered in the Court below, without costs, or to plead de novo within twenty days after service of the amended declaration. In Curtis v. Lawrence, (17 Johnson, 111,) the plaintiff, in an action of slander, had claimed, in his declaration, $1,000 damages, and had a verdict for $4,250. He then moved for leave to amend the declaration, by increasing the amount of damages. The motion was denied, the Court declaring that it had no power to allow the amendment. In Dox v. Dey, (3 Wendell, 356,) which was an action of assumpsit, on a special contract for the sale and delivery of wheat, the plaintiffs had laid their damages at $1,000, and had a verdict for $1,670.92. A motion on the part of the plaintiffs to amend, by increasing such damages, was granted on condition that the plaintiffs should give up their verdict, pay the defendants' costs of the trial and of the motion, and consent to a new trial. Mr. Justice Marcy declared that he knew of no precedent for allowing the amendment without prejudice to the verdict, and said that a similar motion was denied at the preceding term. And Hall v. Turner, (1 Wendell, 72,) seems to have been disposed of in substantially the same way. In Corning v. Corning, (2 Selden, 97,) in an action of assault and battery, the Judge at the Circuit, before receiving the verdict, allowed an amendment of the declaration, increasing the damages claimed to the amount of the verdict, but the order for this amendment was reversed by the General Term of the Supreme Court. In delivering the opinion of the Court of Appeals, Mr. Justice Jewett says: "Before the adoption of the Code, it was well settled, that the Supreme Court had no

Iselin v. Barney.

power to allow an amendment of a declaration after verdict, by increasing the amount of the damages claimed, to correspond with the amount of the verdict, except upon the condition that the plaintiff relinquished the verdict, paid the costs of the trial, and consented to a new trial." There are other cases which were cited in support of the motion, but the case of Davis v. Smith, (14 Howard's Pr. Rep., 187,) is the only one which is like the present. That case was decided in the Third Judicial District by three Judges, and seems to be opposed to the other cases named above, but the weight of authority is clearly the other way. (See Smith v. Allyn, 1 Paine's C.

C. R., 486.)

On the whole case, I think that the motion can be granted only on the terms stated in Corning v. Corning, (2 Selden, 97.)

ADRIAN ISELIN AND OTHERS v. HIRAM BARNEY.

Under the 5th section of the Act of March 3d, 1857, (11 U. S. Stat. at Large, 195,) the entry of goods within ten days after which notice of dissatisfaction with the decision of the Collector must be given to him by the importer or his agent, in order to authorize a subsequent suit to recover back an excess of duties paid under protest, is, in the case of goods entered for warehousing, the entry for withdrawal of such goods and not the entry for warehousing. (Before NELSON, J., Southern District of New York, November 9th, 1863.)

THIS was an action against the Collector of the port of New York, to recover back an alleged excess of duties, paid under protest upon worsted goods.

Martin V. B. Wilcoxson, for the plaintiffs.

E. Delafield Smith, (District Attorney,) for the defendant.

NELSON, J. It is admitted that the duties upon the goods imported by the plaintiffs were charged at too high a rate, but it is insisted that the suit is barred by the short limitation Act.