Doran v. Cohen
Massachusetts Supreme Judicial Court
Contract against a surety on a bond, given to dissolve an attachment in an action of tort brought by the plaintiff against William H. Swift. Answer, that after the execution of the bond, and before trial of the former action, the plaintiff changed his cause and form of action, by adding a count to his declaration without the consent of, and without notice to, the defendant.
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Contract against a surety on a bond, given to dissolve an attachment in an action of tort brought by the plaintiff against William H. Swift. Answer, that after the execution of the bond, and before trial of the former action, the plaintiff changed his cause and form of action, by adding a count to his declaration without the consent of, and without notice to, the defendant. The declaration in the original action contained two counts, the first of which was as follows: “And the plaintiff says that he was possessed of a certain sailboat; that the defendant was possessed of a certain steamboat,…
1Opinion of the Court
Morton, O. J.
The sureties upon a bond to dissolve an attachment are not discharged by an amendment of the declaration, unless its effect is to let in a new cause of action, and thus to impose upon them a liability greater than that which they assume by signing the bond. The original declaration may be imperfect and insufficient, but any amendment to cure such defect will not discharge a surety or release bail, unless it introduces a new cause of action. The obligation of the surety is to pay the plaintiff in the action the amount he shall recover therein, and the surety cannot take advantage…
2Cases cited2 opinions
- Cain v. RockwellMassachusetts Supreme Judicial Court · 1882
- Kellogg v. KimballMassachusetts Supreme Judicial Court · 1886
3Cited by47 opinions
- Bliss v. New York Central & Hudson River RailroadMassachusetts Supreme Judicial Court · 1894
- Sibley v. NasonMassachusetts Supreme Judicial Court · 1907
- Vasu v. Kohlers, Inc.Ohio Supreme Court · 1945
- Georgia Railway & Power Co. v. EndsleySupreme Court of Georgia · 1928
- Reilly v. . Sicilian Asphalt Paving Co.New York Court of Appeals · 1902
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