Hutchinson v. Tucker

Under the Gen. Sts. c. 129, §§ 41,82, it is within the discretion of the Superior Court to allow the amendment of a writ against the defendant personally, so as to charge him in his capacity as administrator; and to the exercise of that discretion no exception lies, although the amendment was allowed more than two years after he had given due notice of his appointment as administrator and after his final account as such had been allowed by the Probate Court.

Contract on an account annexed. The writ, dated March 23, 1875, and returnable to the Superior Court, was against the defendant personally. On February 27, 1877, Gardner, J., allowed the plaintiff to amend the writ so as to charge the defendant as administrator of John C. Tucker, the defendant objecting to the amendment on the ground that he, as administrator, had rendered his final account and fully administered on the estate. The defendant alleged exceptions. The case was afterwards tried before Bacon, J. The defendant put in evidence that his first and final account was allowed by the Probate Court on February 5, 1877, and that the amendment was allowed more than two years after he gave due notice of his appointment as administrator; and requested the judge to rule that the plaintiff could not recover, for these reasons. The judge declined so to rule. The jury returned a verdict for the plaintiff; and the defendant alleged exceptions.