Husted v. Town of Greenwich

Waite, J. 1. It is claimed, that the county court erred, in allowing an amendment of the petition, by erasing the words, “ sitting as a court of chancery." The statute provides, that “ the plaintiff may amend any defect, mistake, or informality in the writ or declaration”-“ provided such amendment shall not change the form or ground of action.” Stat. 44. tit. 2. s. 33. [386] It is not pretended, that the form or ground of action was changed. If the amendment was a matter within the discretion of the court, the allowance or disallowance of it can furnish no ground for a writ of error. United States v. Buford, 3 Peters 32. Mellish v. Richardson, 9 Bing. 125. (23 Serg. & Lowb. 276.) Merriam v. Langdon, 10 Conn. Rep. 461. 467. But it is said, that the petition, being addressed to the court, as a court of chancery, was not regularly before the county court, as, in the exercise of their power of laying out highways, they do not act as a court of chancery ; and therefore, they had no jurisdiction of the cause. By the statute constituting county courts, they are empowered to hear and determine actions at law, suits in chancery, and matters of a criminal nature, within certain limits and under certain restrictions. Stat. 139. tit. 21. s. 16. In addition to these powers, others are conferred upon them, by particular statutes ; as the appointment of conservators, laying out highways, and compelling the repairs of roads and bridges. These several powers are exercised, by the same court, and at the same time. In bringing an action at law, a suit in chancery, or a petition for a highway, it is usual to describe the court simply as the country court, without any reference to the character in which they may be supposed to act in that particular case. Even if an action at law were brought, and the court described as in the petition in this case, it would not prevent the court from proceeding with the trial of the cause, because the court is both a court of law and a court of chancery. Both classes of suit are brought before the same court, holden at stated terms, for the trial of all causes within their jurisdiction, which may be legally brought before them. It is immaterial, whether the application, in this case, either in form or character, resembles most a suit in chancery or an action at law. It was addressed to the county court, calling upon them to do what by statute they were empowered to do; and, in our opinion, the cause was regularly before the court; and it was immaterial whether they allowed the amendment or not. They might have treated the words, " sitting as a court of chancery" as surplusage, or allowed the amendment, at their discretion... [387] 2, It is also claimed, that the county court erred in accepting the report of the committee, as it does not appear from the record, otherwise than from the report signed by the committee, as a "committee under oath," that they had been duly sworn, before they performed the acts stated in their report. The statute undoubtedly requires, that the committee should be sworn before they proceed to act. And had they not been sworn, the defendants might have shewn that fact; at the time of presenting the report, as a reason for not accepting it. But the question now is, whether we are not authorised to infer from the record, that the committee were legally sworn, and at the proper time. The record in this case, it is believed, is in conformity with the general practice in cases of this kind, and in conformity with the practice of courts of probate in accepting the reports of appraisers, distributors and commissioners. If the doctrine now contended for, by the defendants, be cottect, the title of many estates would be shaken. Even if the committee had not annexed to their certificate, that they were under oath, we are by no means satisfied, that the law would not now imply, that they were. Sheriffs, constables, and justices of the peace, in their returns of acts done by them, in their official capacities, never state, that they were under oath, when they performed thses acts. And courts of justice are in the constant practice of receiving and acting upon such returns, inthe same manner as if they were accompanied with evidence that the persons signing them had been sworn. But in this case, we are satisfied, that enough appears from the record to justify the inference, that the committee had been duly sworn, when they performed the acts set forth in their report. We are, therefore, of oponion, that there was no error in the judgment of the county court, and that consequently, the judgment of the superior court must be reversed. The other Judges concurred in this opinion. Judgment reveresed.