
    MRS. THOMAS’S MOTION.
    Mary W. Thomas v. The United States.
    
      On the claimant’s Motion.
    
    
      The claimant sued under the Abandoned or captured property Act, alleging that she teas “ the owner and in possession of 112 bales of cotton at her residence on her plantation.” In fact the cotton teas her husband’s. After capture he died, and after his death she, being executrix, brought this suit in her oion name. Her administrator now seelis so to amend the petition and record as to represent her as executrix of her husband, and to substitute the present administrator de bonis non of the husband as claimant.
    
    I. A suit under the Abandoned or captured property Act (12 Stat. L., 820) is a suit in equity against a specific fund partaking largely of the nature of a proceeding in rem. Whenever the fund vanishes the liability of the defendants under the statute ceases and the jurisdiction of the court ends.
    II. Jurisdiction under the statute depends upon two things: First, upon there being a fund or thing to which jurisdiction can attach ; second, upon the suit against that fund or thing being instituted within the statutory time.
    
      III. The purpose of the statute was that all suits affecting the fund should he before the court at the same time. Where this condition has been complied with by a petition sufficiently defining the property and intelligibly setting forth the title by which it was acquired, so as to constitute a notice of Us pendens against those proceeds, a change of parties can be allowed though the jurisdictional pieriod for bringing a new suit has passed; but where a petition merely alleges possession and ownership in the claimant at the time of capture, when they in fact were in her husband, the court is without power to substitute his executor as claimant.
    
      The Reporters’ statement of the case:
    The only allegations in the claimant’s petition concerning her title or ownership to the captured property in suit are the following:
    “ 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 Toketa Lake, seven miles from Yazoo City, in said county. That on the 16th day of July, 1863, the said cotton was seized and taken possession of by an officer and party of the forces of the United States.”
    The case having been referred to Eben Eveleth, esq., as special commissioner, the comm issioner, on the 2d March, 1875, reported upon the proofs as follows:
    “ I find the facts to be that John H. Thomas, the husband of the claimant in this case, was, in July, 1863, the owner of 112 bales of cotton, which he had in his possession on his plantation in Yazoo County, Mississippi. During that month the said cotton was seized and taken to Yicksburgh by officers and soldiers of the United States, under the command of General Herron. • At Yicksburgh the cotton became intermingled, and lost its identity.
    “ I have to call the attention of the court to the fact that letters of administration have not been presented in this case. Upon what principle the widow can maintain a suit for the proceeds of this cotton I am not advised; but the estate of the deceased is entitled to recover the proceeds of 112 bales of cotton, out of the first fund, at the average rate per bale.”
    After the coming in of the report of the commissioner, and before final action upon it, so far as this case was concerned, the claimant’s attorneys made the following motion, which forms the subject of the present decision :
    
      Mart W. Thomas vs. The United States.
    No. 3466.
    The claimant’s counsel moves, upon the papers and records filed and the evidence in the cause—
    1st. To so amend the petition and record as to make them stand Mary W. Thomas, executrix of John H. Thomas, deceased.
    2d. To allow and permit the death of Mary W. Thomas, executrix of John H. Thomas, to be suggested upon the record.
    3d. To substitute W. Galvin Wells, administrator de bonis non with the will annexed of John EL.Thomas, deceased, as claimant upon the record.
    BARTLEY & CASEY,
    
      Attorneys for Olaimant.
    
    Mat 16, 1876.
    
      Mr. Joseph Casey for the motion :
    The amendment comes within the statute. (See Rev. Stat., 179,180, §§ 948, 954.) The last-cited section, after providing for amendments in matter of form, says: “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.” It is a defect in the pleading. It is therefore within the law; being within the law, it rests in the discretion of the court. Ought' that discretion to be exercised in favor of this amendment ? I contend it ought, for these reasons:
    It does no injustice to the United States. In section 948 of Revised Statutes the amendments there provided for are to be allowed “where the defect has not prejudiced and the amendment will not injure the party against whom such process issues.” The amendment here asked for can do neither. The defect did not prejudice them; the amendment cannot injure them. The suit was brought in time. They had timely, definite, distinct notice. The very cotton taken, with time, place, and amount, is described in the petition. The claimant was made a party in the “ intermingled cases.” The proceeds of 112 bales were reserved out of that intermingled fund to satisfy the claim made in this very suit. The proceeds of these 112 bales belonged either to the party claiming here or to Thomas Kidd, May bin, and others, who only received a part or pro rata share of their cotton. Iustead of receiving $261 a bale they received but $177. These parties are content, and make no complaint; the judgment as to them was conclusive, not only on their rights, but on the rights of Thomas’s estate as well, which was one of those consolidated, or, as the Supreme Court more correctly calls them, “intermingled cases.” The United States ■was a party to those cases, and is equally bound by the judgment. It was not pretended, and cannot be, that any part of that cotton belonged to the United States. It is abundantly olear that the proceeds of these 112 bales belonged to John H. Thomas’s estate. Why should it not have them ? If the amendment were permitted, and judgment entered in favor of the es.tate, it would operate as a perpetual bar. These proceeds never could be claimed by that estate or any one else. They are held in trust by the United States for the estate. The United States have no title to these proceeds and never can get one to them. They pay no interest to the owners of them. They have had them nearly fourteen years already without interest. And how have they been prejudiced by the defect in the pleadings ? Or how will they be injured by the amendment proposed 7 If it is made, the party gets only what is justly his. The United States only pays that which they honestly owe. And the judgment is to them a certain and final acquittance. And besides, to that extent, saves them from the stigma of repudiation by setting up the statute of limitation to a sacred trust.
    The amendment asked for is justified and sustained by many precedents in this court. (Jaeleson et al., 1 C. Ols. R., 260; Cowan’s Case, 5 C. Ols. R»., 106 ; Minna Berg’s Case, 5 O. Ols. R., 632; Molina’s Case, 6 O. Ols. R., 269; Paycm’s Case, 7 0. Ols. R., 400, citing 13 Mees. & Weis., 556; 6 L. & Eq. R., 368; Cote’s Case, 3 O. Ols. R., 64; Mrs. Green’s Case, 7 O. Ols. R., 496; Broten v. Fullerton and Can v. Malins, as 'well as the Cowm Case and Payan Case; Kidd, guardian of W. 8. Bolls, 8 0. Ols. R., 259.)
    In the Burns Case, (12 Wall., 246,) the Supreme Court decided that this court was not bound by any special rules of pleading. I conclude, therefore, that the amendment which I ask permission to make is sanctioned and sustained by the acts of Congress cited, to wit, sections 948 and 954 Revised Statutes; by the usages and precedents of courts of authority both in this country and in England; by the repeated decisions of this court, in the cases of Jackson, Cowan, Berg, Payan, Mrs. Green, Kidd, guardian, and Elgee$ by the express and emphatic affirmance of the Supreme Court in the Elgee case, going, in principle and fact, far beyond the case at bar, The granting of the amendment will do no wrong to the United States and only justice to the claimants.
    If the allowance of this amendment be a matter of judicial' discretion,' as I believe it to be, then that discretion will be exercised by the court to further, and not to defeat, the ends of justice.
    
      Mr. Assistant Attorney-General Simons opposed:
   Uott, J.,

delivered the opinion of the court:

D must be borne in mind in all proceedings under the Abandoned or captured property Act that an action under that statute is a suit in equity against a specific fund partaking largely of the nature of a proceeding in rem. In an ordinary action A B brings his suit against O D, and seeks to hold him to a personal liability. In these captured property cases the suit is in effect an information against a fund which is in the possession of the defendants as trustees for whom it may concern. Whenever the fund vanishes, the liability of the defendants under this statute ceases and our jurisdiction ends.

Hence the statute, to the end that all parties interested in the fund might assert their rights while it was still under the control of the only tribunal having jurisdiction over it, provided a fixed jurisdictional period within which all suits might be brought. The purpose of the statute was not that of a statute of limitations, to prevent the mischiefs of unreasonable delay, but arose from the absolute necessity of having all claimants irpon the fund before the court at one time, so far as to enable adverse parties seeking the proceeds of the same property to interplead and contest their conflicting rights. Hence this limitation of the statute is jurisdictional, and jurisdiction depends in every instance upon two things: 1st. Upon there being a fund or thing to which jurisdiction can attach; 2d. Upon the proceeding, information, or suit against that fund or thing being instituted within the statutory time.

This suit now before us, according to the averments of the original petition, was brought for the proceeds of certain captured cotton, which was described in no other way than as 112 bales of cotton, at the time of seizure the claimant’s property, in her possession at her residence on Toketa Lake, in Mississippi. The proofs show that there was no such property, but that there was a similar quantity of cotton, the property of her husband, in his possession at his residence on Toketa Lake, in Mississippi. Failing to make good her title to any cotton whatever, the husband’s administrator, with the consent of the claimant’s representative, the two administrators being in fact one and the same person, comes in and asks to be substituted as claimant, to the end that he may change by amendment the allegations of the petition and recover the proceeds of the husband’s property.

In numerous cases under the Abandoned or captured property Act such changes of party have been allowed after the jurisdictional period for bringing such suits has expired, but in all of them the thing in suit was not misdescribed in the original petition, and the party substituted possessed some legal relations concerning the thing in suit with the party who in due time instituted the aótion. In other words, the original error was in the party’s deduction of law and hot in his averment of fact. The suits were brought concerning property sufficiently defined, and transactions by which title to that defined property was acquired or transmitted were intelligibly set forth, and a false inference of the law was then drawn, such as that the well-described title had, by the defined transaction, vested in the heir instead of in the administrator, in the wife instead of in the husband, in the bankrupt instead of in the assignee. In none of those cases could the Government, as trustee of the thing in suit* nor could a third person as adverse claimant, be deceived. The petition, regarded as a notice of lis pendens, was complete, and informed the trustee and all the world that a suit had been brought within the proper jurisdictional period to recover that specific thing. When the error was discovered, the only changes necessary were technical and formal — that the wife who bought the’personal property go out and her husband, who took title by her transaction, come in; that the dis-tributee who claimed this part of the intestate’s estate give place to the administrator, who in law alone could represent it, &c.

In all of those cases, as has been said, the thing in suit was defined, and some legal relations concerning it subsisted between the party who brought the action and the party who alone could obtain a judgment.

In the case now before us the misfortune is that there is no specific title to the property set up; that there are no aver-ments in the original petition which define the thing in suit, except as being cotton, the property of the claimant; and that no legal relations concerning the thing described existed between her and her husband at the time of capture; for by the law of Mississippi she was, concerning her own personal property, to all intents and purposes a femme sole. It would, in short, have been legally feasible for her to have maintained one suit for the proceeds of 112 bales of cotton captured in Mississippi, and for her husband to have maintained another for 112 bales of cotton captured in Mississippi by a precisely similar description — that is, by no description save that of possession and ownership — and for the two suits to have proceeded' to judgment without its becoming apparent that the two sought to recover the same .thing. For her possession was not the husband’s possession's at common law, and in the eye of the law of their domicile they were strangers to each other concerning this personal property, and might have brought adverse suits concerning it, and have set up adverse titles to the proceeds as effectually as though they were not husband and wife. (Mrs. Sykes’s Case, 8 C. Cls. R., 330.)

The objections, therefore, to allowing an amendment and substitution in this case are twofold : First, that the claimant in her petition as a matter of fact, apart from all legal and technical errors, really set up a false title; second, that the substitution is to be allowed in favor of one who neglected to assert his own title and against whom she might have maintained an action of replevin if her petition were true and he had possessed himself of this property. What is this but allowing one who neglected to allege his title to his property within the jurisdictional period when he might have done so to come in when the j urisdictional period has passed and assert it now ? What is it but bringing in at once both a new party and a new claim ?

Assuredly nothing. And if the application stopped here there would not be the slightest, ground for it to stand upon. But it remains to be noted that when the claimant brought her own suit, in her own name, for her own property, setting up' her own title, she was in fact the executor of her husband, who had died subsequent to capture but before suit brought, and. consequently was the only person authorized by law to assert his title. Properly speaking, the administrator de bonis non of the husband’s estate is successor of the claimant as executrix of the same estate. The case, therefore, is precisely as if she were still living and had now come in and asked to amend so as to sue as executrix instead of in her own right, and to set up her testator’s title instead of her own. An equity, though, without legal efficacy, is added to the case by the fact that as legatee she would be the part owner of the property in her own right when the estate should be closed. Will these additional facts afford jurisdiction to allow the change and substitution asked for ? I am inclined to think not. The trouble still remains that on the 20th August, 1808, when the jurisdictional period ended, there was no claim before the court to which jurisdiction could attach irrespective of the party or person who preferred it. If the executrix had set up the true title; if' she had specifically described the propefby captured; that is, if she had sued for the thing now sought to be sued for, her misnomer in suing in her own right could have been cured by amendment. But the thing sued for was as distinct in contemplation of law from the thing now sought to be sued for as it would be if she had come in and sought to amend by substituting for cotton captured in her possession at her residence in Mississippi cotton captured in her brother’s possession at his-residence in Alabama. It is true that there are no formal or technical pleadings required in this court, but, as was said by the Supreme Court in Baird’s Case, (8 C. Cls. R., 13,) the allegations and proofs must so far correspond as to maintain the principle of res judicata.

Therefore, we are of the opinion that the court, for want of' jurisdiction, must refuse to hear the motion upon its merits, and the claimant be left to apply to the Supreme Court for a mandamus to correct the error, if error it be. If the case could, be considered on the merits, wé should have little doubt that the error arose from a woman’s blunder in half stating her case to her lawyer; but, for the reasons given, the merits cannot be inquired into.

The order of the court is that the motion to substitute the administrator de bonis non of the estate of John H. Thomas, deceased, be not heard on the merits, but be dismissed for want of jurisdiction in the court to entertain it.

Loríng and Peck, JJ., dissented.  