Doran v. Cohen

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 assume 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. The obligation of the surety is to pay the plaintiff in the action the amount he shall recover therein, and the surety cannot take advantage of formal defects *344in the declaration. Wood v. Denny, 7 Gray, 540. Cain v. Rockwell, 132 Mass. 193, Kellogg v. Kimball, 142 Mass. 124.

In the case before us, the two counts of the declaration are for the same cause of action. The gist of each is, that the defendant negligently managed his steamboat so as to run down the sailboat of the plaintiff when he was sailing in it, using due care. Each count sets out the same tortious act of the defendant as the cause of action. They differ only in that the original count sets out that the plaintiff’s sailboat was rendered unfit for use, that it was worth $200, and that he was “ damaged to that extent and otherwise while the amended count alleges that he was injured in his person. The plaintiff could not legally maintain more than one action for the same tortious act. He could not divide the tort, and have one action for the injury to his property and another for the injury to his person. Bennett v. Hood, 1 Allen, 47. Trask v. Hartford & New Haven Railroad, 2 Allen, 331. This is upon the ground that he could not maintain two suits for the same cause of action.

As the two counts are for the same cause of action, we are of opinion that the allowance of the second count as an amendment did not discharge the sureties on the bond to dissolve the attachment.

Exceptions sustained.