Prince v. Clark

127 Mass. 599, 1879 Mass. LEXIS 150

Opinion

Ames, J.

In the original declaration, the debt alleged to be due to the plaintiff was described as the balance of an- account, amounting to the sum of $431.86. The sureties upon the hand given for the dissolution of the attachment must have understood that they made themselves responsible, in no possible event, for more than the amount of that balance, with interest and costs. The effect of the amendment has been to change the plaintiff’s claim from a claim for the balance of the account to one for the entire account, thereby more than doubling the amount which he claims of the sureties, or which they had any intent to assume. This change is not a mere correction of a misdescription of the plaintiff’s claim, but it is an addition to it of the entire amount of the credit which had been given in the original declaration. The amendment became necessary in order to protect the plaintiff from the consequences of his own neglect or mistake in defending against a cross action; but the effect of it was clearly to introduce claims not included in, but on the contrary expressly excluded from, the original declaration. For these claims, the sureties on the bond given to dissolve the attachment are not liable. Gen. Sts. c. 129, § 82. Hill v. Hunnewell, 1 Pick. 192. Willis v. Crooker, 1 Pick. 204. Wood v. Denny, 7 Gray, 540. Freeman v. Creech, 112 Mass. 180.

Judgment affirmed.