Driscoll v. Holt

• Decision Date: 05 February 1898
• Citation: 170 Mass. 262,49 N.E. 309
• Parties: DRISCOLL v. HOLT et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

170 Mass. 262

49 N.E. 309

DRISCOLL v. HOLT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

February 5, 1898

COUNSEL

S.L. Whipple and W.R. Sears, for plaintiff.

Chas R. Elder, for defendants.

OPINION

KNOWLTON, J.

This is a suit against sureties upon a bond given to dissolve an attachment, and the only question in the case is whether the sureties were discharged by an amendment to the declaration in the original action, made without giving them notice. Under Pub.St. c. 167, § 42, amendments may be made in civil suits at any time before final judgment, in any matter either of form or substance, "which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or the defendant to make a legal defense." Section 85 of the same chapter is as follows "The cause of action shall be deemed to be the same for which the cause was brought when it is made to appear to the court that it is the cause of action relied on by the plaintiff when the action was commenced, however the same may be misdescribed, and the adjudication of the court allowing an amendment shall be conclusive evidence of the identity of the cause of action. But no subsequent attaching creditor, or purchaser of property attached in the suit, or bail, or any person other than the parties to the record, shall be bound by such adjudication unless he has had due notice of the application for leave to amend, and opportunity to be heard thereon, according to an order of notice to that effect to be issued by the court upon application of the plaintiff, and such third parties shall have the right to except or appeal." The later decisions under these sections have done much to make clear the effect of amendments upon the rights of attaching creditors and of sureties upon bonds given to dissolve attachments. Doran v. Cohen, 147 Mass. 342, 17 N.E. 647, was a suit against such a surety, and it appeared that the declaration in the original action as at first drawn only alleged negligence of the defendant which resulted in a collision between the defendant's steamboat and the plaintiff's sailboat, whereby the sailboat was injured. An amendment was allowed without notice to the surety, by which a new count was added alleging negligence of the defendant such "that said steamboat struck against and upon the plaintiff, and smashed the plaintiff's said sailboat, thereby causing the plaintiff to fall into the water of Boston Harbor, in which the plaintiff had to remain a long time, and where the plaintiff had to struggle hard to keep from drowning, and was put in great fear of the loss of his life; in consequence of all which the plaintiff was damaged in body and mind, was put to great suffering, rendered unable to work for a long time, and was put to great expense." When the bond was signed, and until the allowance of the amendment, there was nothing in the writ or declaration to indicate that there was any other claim against the defendant than for an injury to the sailboat, and the surety had no notice or information that the bond subjected him to a liability for a personal injury to the plaintiff. But it was held that, although the declaration disclosed no such claim or liability, the amendment did not introduce a new cause of action, but only an additional injury, growing out of the same cause of action. Chief Justice Morton, in delivering the opinion, says: "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 assumed 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." In Bank v. Jones, 151 Mass. 457, 24 N.E. 593, the original declaration was upon a single draft, with a reference to a copy annexed. The draft was misdescribed in one particular, but in other respects the count was perfect. Copies of four similar drafts were annexed to the declaration. An amendment was allowed adding a count for each of the...