Poole v. Dyer , 123 Mass. 363 ( 1877 )

Endicott, J.

In the original action brought by the plaintiff, the property of both defendants was attached. They thereupon gave a bond to dissolve the attachment, upon which this action is brought. The plaintiff in the original action discontinued against one, and judgment was entered against the other defendant. It is now contended that this discontinuance discharged the sureties, and they are no longer liable on the bond; but the court is not of that opinion.

There is nothing in the language of the bond, or the circumstances under which it was given, to indicate that it was intended to be restricted to a judgment against both the original defendants. It dissolved an attachment made upon the property of each, and should therefore stand as security to the plaintiff for the default of either. If at the trial of the original action the plaintiff had recovered against one defendant only, the case would have fallen precisely within Leonard v. Speidel, 104 Mass. 356. The condition of the bond in that case was substantially the same as in this. See also Campbell v. Brown, 121 Mass. 516. The result, so far as the sureties are concerned, is the same whether the plaintiff discontinues against one defendant, or fails to recover against him upon trial. No change is made in the nature of the claim which is the subject of the suit, and nc greater or different liability is cast upon the sureties by the discontinuance. Sanderson v. Stevens, 116 Mass. 133.

The case is clearly to be distinguished from Tucker v. White, 5 Allen, 322, and Richards v. Storer, 114 Mass. 101, relied on by the defendants. In those cases the plaintiff not only discontinued against one defendant, but summoned in another, and there was judgment against a new party not mentioned in the bond. Judgment for the plaintiff.