Sherman Leland, Judge of Probate, &c. versus William Loud et al., 16 Pick. 233

Wilde J. delivered the opinion of the Court. The plaintiff's motion, we think, cannot be allowed ; because the amendment proposed would substantially change the parties and the grounds of the legal defence. By the statute, in the form this action is brought, judgment is to be rendered, if the action is maintained, in favor of the judge of probate, for the use of Daniel Loud, and Loud is entitled to sue out execution thereon. He is therefore" to be regarded as substantially the plaintiff in the action.

He had the right, and it must be presumed that he exercised it, to sue out the writ in the name of the judge of probate, without any permission from him, and he has no authority to prosecute the action except for his own use. If therefore the amendment could be allowed, no one would be authorized to proceed in the action. And furthermore, if the amendment were allowable, it ought not to be granted but upon payment of costs to the defendants; so that little or nothing would be gained by the amendment. In the case of Coffin v.

Jones, which came before the Court some years since, from Nantucket, a similar motion to amend was made ; and it was decided that the amendment could not be ahowed, except with the consent of the defendants. The question was then fully considered ; and we still remain of the opinion, that the decision was correct and conformable ts the obvious meaning of the statute. Judgment for the defendants for costs.