
    Willis versus Crooker.
    The first of two attaching creditors, by filing a new count, which did not appear by the record to be for the same cause of action as the counts in his writ when it was served, was held to have dissolved his attachment.
    The filing such a count would discharge bail.
    This was an action of trespass quare clausum fregit The defendant pleaded liberum tenementum ; upon which issue was joined.
    The controversy was between two creditors of the plaintiff’s father, each of whom had attached and levied on the same land, each claiming to have made the first attachment. At the trial, before Wilde J., it appeared, that the writ in the plaintiff’s action against the debtor contained originally two counts, the first upon a promissory note for 171 dollars, 82 cents, the second for 2000 dollars, money had and received. While the action was pending in court, the plaintiff added three counts ; the first for 322 dollars, the balance of an account annexed, in which the charges were principally for labor, articles sold and delivered, and money paid ; the second, on a promissory note for 96 dollars ; and the third, on a promissory note for 500 dollars. Judgment was rendered in that action, in favor of the plaintiff, for the sums due on the several notes, and on the account annexed, amounting in the whole to 1166 dollars, 91 cents. The defendant in the present action contended, that the amendment discharged the plaintiff’s attachment. The judge, intending to reserve the point for the consideration of the whole Court, directed the jury to confine their attention to another question in the cause. A verdict was found for the plaintiff. If the attachment was discharged by the amendment, or if the Court should be o opinion in favor of the defendant on another point reserved, a new trial was to be granted.
    
      Baylies and Eddy, for the defendant,
    contended, that the counts added were for new causes of action, and Mere not within the statute of amendments. Haynes v. Morgan, 3 Mass. Rep. 208; Tidd’s Pr. (2d Am. ed.) 653. The filing of them was a fraud upon subsequently attaching creditors. The plaintiff’s attachment was to respond only the causes of action contained in the writ at the time when the attachment was made.
    Beal, for the plaintiff.
    The notes might have been given in evidence under the general count for money had and received ; Young v. Adams, 6 Mass. Rep. 189; State Bank v. Hurd, 12 Mass. Rep. 172; and the Court would also have allowed the account annexed to be proved under the same count; or, at least, would have permitted new counts for money paid, &c. to be filed for the same cause of action, without affecting the attachment. If, then, the whole amount recovered by the plaintiff might have been recovered under the original count, or under the amendment, which the plaintiff had a right to make, the filing new counts cannot affect his rights under his attachmunt, unless they were fraudulently for new causes of action ; and this would be a question for the jury.
   Per Curiam.

We think that after an attachment, or holding to bail, the plaintiff cannot alter his writ to the injury of a subsequently attaching creditor, or of bail. The subsequently attaching creditor has a vested right to the excess beyond the amount of the judgment to be rendered upon the writ of the Prst attaching creditor as it was when served. So, bail are not to be made liable for a greater sum than was included in the writ at the time when they entered into the bail bond. It is said, that the second count would cover the additional counts; but it cannot be ascrtained from the record that it was intended to cover them.

The opinion of the Court was likewise in favor-of the defendants upon the other point reserved.

New trial granted. 
      
       See Brigham v. Este, 2 Pick. 425; Ball v. Claflin, 5 Pick. 303; Vancleef v. Therasson, 3 Pick. 12; Miller v. Clark, 8 Pick. 412.
     
      
      
         This cause came before the Court again at October term 1823, at Plymouth, and Beal made the same point, and contended, that adding a new cause of action would not vacate an attachment, provided nothing was recovered under such amendment; that there was nothing on the record, or in the report of the judge, to show on which of the counts the plaintiff took his judgment; that he had now a right to apply it to which counts he pleased, or rather, if there were in the writ, when served, good counts sufficient to suppoit the judgment, the presumption was, that it was rendered upon those counts But the Court said, that they were satisfied with the correctness of their former opinion; that it was intimated by the defendant’s counsel, at the former argument, that something had been added to the amount of the judgment in consequence of filing the new counts, but that whether this fact appeared or not was immaterial, as the burden of proof lay on the other parly. — Reporter.
      
     