Dalton v. Barnard

23 N.E. 218, 150 Mass. 473, 1890 Mass. LEXIS 305

• Court: Massachusetts Supreme Judicial Court
• Decided: January 2, 1890
• Status: Published

Opinion

C. Allen, J.

1. The defendant Smith in his brief contends, and the plaintiff admits, that there was an amendment to the declaration in the original action by filing a bill of particulars; but the papers in that suit have not been laid before us, and we have nothing to show that any new cause of action was added by the amendment; nor indeed is any such question raised in the answers of the defendants, nor was it, so far as we can see, included in the agreed statement of facts, or passed upon by the court.

2. It has been determined heretofore that a discontinuance as to one of several defendants will not have the effect to discharge a bond which the defendants have jointly given to dissolve the attachment. Such discontinuance does not change the identity of the action, and the judgment recovered against only one of the defendants is the same judgment described in the bond. Nor is the surety injured, for both defendants are principals in the bond and stand between him and harm. If the surety desired to escape liability for a judgment against only one of the defendants, he should have given a bond limited to a judgment against both. Poole v. Dyer, 123 Mass. 363. Campbell v. Brown, 121 Mass. 516. All of the defendants are liable upon the bond.

Judgment for the plaintiff against all the defendants.