
    William W. Abbott v. Fitzwilliam H. Chambers, Circuit Judge in Wayne County.
    
      Amendment of declaration on bond,.
    
    A declaration on the bond of a residuary legatee alleging the failure to pay a claim is amendable by adding a count alleging the failure to pay a note which constituted the claim, even though the note itself was outlawed; no new cause of action is added by such an amendment.
    Motion for order to show cause.
    Submitted and denied January 6.
    
      Alexander D. Fowler for relator.
    Conely, Maybury c& Lucking for respondent.
    Assumpsit is barred in six years : Sigler v. Platt 16 Mich. 206; Christy v. Farlin 49 Mich. 319; debt, not until ten: Goodrich v. Leland 18 Mich. 110 ; where an original declaration was on the common counts only and an amendment was allowed by the trial court permitting a special count which set forth a controversy which could not have been given in evidence under the declaration as it originally stood, and the case was one in which the statute of limitations could have been successfully pleaded to a new suit, the amended declaration was stricken from the files: Gorman v. Judge 27 Mich. 138; but where the subject matter of the count is the same and the statute of limitations does not prevent, the declaration may be amended by adding a count: Long v. Wayne Circuit Judge 27 Mich. 164; Chapman v. Colby 47 Mich. 52; the only remedy is on the bond of the residuary legatee when the testator’s debts have ceased to be enforcible: Hatheway v. Weeks 34 Mich. 237; McElroy v. Hatheway 44 Mich. 399; Probate Judge v. Abbott 50 Mich. 278; Wheeler v. Hatheway 54 Mich. 547. But see Biddle v. Wendell 37 Mich. 452.
   Per Curiam.

Suit on the bond of a residuary legatee, which was conditioned to pay the debts of the testator. The plaintiff by his declaration alleged as a breach the failure to pay a claim which had been allowed in his favor by the probate judge. Afterwards, against the objection of the defendants, he was allowed to add to his declaration a count alleging as the breach the failure to pay a note held by him, and which constituted the claim which had been allowed in his favor. The note was more than six years overdue when the amendment was allowed. The defendants now apply for mandamus to compel the vacating of the ordel permitting amendment.

Held, that as the plaintiff had not been allowed to bring in by his amendment any new cause of action, the motion should be denied.  