
    Daniel Warren vs. Robert W. Lord.
    Suffolk.
    Nov. 15 — 25, 1881.
    Morton, Endicott & Allen, JJ., absent.
    The amendment of one of two counts of a declaration inserted in the writ does not discharge a surety on a bond given to dissolve the attachment in the action from liability for the amount sued for in the count not affected by the amendment.
    Contract against a surety in a bond given to dissolve an attachment in an action of contract brought by the plaintiff against John Wilder.
    The declaration inserted in the writ in the former action contained three counts: 1st. Upon a promissory note not payable before the action was commenced. 2d. Upon another promissory note already due and payable. 3d. For goods sold and delivered. The court, after notice to the surety, and against his objection, allowed the plaintiff to amend that declaration by striking out the first count and substituting therefor another count, alleging that the first note was given by the defendant and agreed to be received by the plaintiff in settlement of a balance of equal amount found to be due to the plaintiff by the parties on accounting together, and upon the condition that the plaintiff should be able to get the note discounted at a certain bank, but that the plaintiff was not able to get the note so discounted, and the defendant owed the plaintiff the balance found due upon the accounting together. Afterwards the plaintiff, by agreement of counsel, took judgment for the sums claimed in the second and third counts only, not including the sum claimed in the first count, or in the amendment thereof; and execution was issued and returned unsatisfied.
    At the trial without a jury, in the Superior Court, before Rockwell, J., of the present action, which was brought to recover the amount of that judgment, the defendant contended that the amendment aforesaid embraced a new demand, and therefore had the effect to discharge him from his liability as surety. But the judge, upon the ground that the judgment in the original action was for the amount only that could have been recovered therein as the declaration originally stood, and not affected by the amendment, ruled that this defendant was not discharged by reason of the amendment, and ordered judgment against him; and he alleged exceptions.
    
      P. Thacher §• S. Thacher, for the defendant.
    
      Gr. W. Morse ¿-TO. Lane, for the plaintiff.
   By the Court.

The amendment of one count did not discharge the surety from liability for the sums sued for in the other counts originally inserted in the writ, and not affected by the amendment. Seeley v. Brown, 14 Pick. 177. Knight v. Dorr, 19 Pick. 48. Exceptions overruled.  