This is an action against the sureties on a bond given to dissolve an attachment in the case of Mary J. Curnow y. Sam Silver, and dated October 6, 1914. The writ in the Silver case was in contract, and the original declaration was in one count for $2,000, “money had and received to the plaintiff’s use.” In May, 1919, a substitute declaration was filed. It was allowed by the court without the knowledge or consent of these sureties, or notice to them. It contained four counts, as follows: Count 1, for money received by Silver from a purchaser of Mrs. Curnow’s farm ($1,500), with interest from August 6, 1914; Count 2, for money received by Silver on the sale of a horse and other personal property of Mrs. Curnow ($180) and for the fair market value of other personal property of hers on the farm, purchased by him ($615.96) with interest from the date of the writ; Count 3, for hay and apples “gathered, harvested and carried away from said farm” by Silver in 1914, before the farm was sold ($400) with. *268interest from the date of the writ; Count 4, for use of horses and board of driver ($48) with interest thereon from March 19, 1914. That case was submitted to the jury on all the counts of the substitute declaration. There was a general verdict for the plaintiff for $2,567.80 (the aggregate claims being about $3,512) and for the defendant on his declaration in set-off for $1,998.88, and judgment was entered in favor of the plaintiff for the difference, with interest, to wit, $572.04 and costs.
At the trial of the present action the judge submitted to the jury the question “4. Was the cause of action set forth in count 3 of said substitute declaration in said action, [Curnow v. Silver] included in the cause of action for which said action was intended to be brought when it was commenced?” The jury answered the question “ no ” by direction of the court. The only question before us on the plaintiff’s exceptions is, whether there was error in ordering this finding. The defendants, contending that they were discharged as sureties by the allowance of the substitute declaration in the Silver case, asked the court to rule that they were entitled to a verdict. This was refused and a verdict was ordered for the plaintiff for the penal sum of the bond, with interest. The exceptions of the defendants are to this order and refusal to rule.
As to the plaintiff’s exceptions: The allowance of the substitute declaration in the action of Curnow v. Silver was an adjudication under R. L. c. 173, § 121 (now G. L. c. 231, § 138), as between the parties in that case, that the cause of action embraced in count 3 was one relied on by the plaintiff when the action was commenced. Batehelder v. Pierce, 170 Mass. 260. But by the express terms of the statute these defendants were not concluded by such allowance, as they had no notice of the plaintiff’s application for leave to amend, and no opportunity to be heard thereon. The fact is, according to the plaintiff’s testimony in the present case, that she did not know Silver had taken said hay and apples until two or three months after the beginning of the action. This evidence was undisputed and controlling. Further, said third count apparently was one in tort for conversion, while the writ in the action was in contract. Accordingly there was no error in ordering the said finding as to count 3, and the plaintiff’s exceptions must be overruled.
As to the exceptions of the defendants: The original writ was *269in contract, with a single count for $2,000, “money had and received.” The amendment contained four distinct claims aggregating more than $3,000. The third count was for a claim amounting to $512.66 at the time of the trial; and it is settled by the negative answer to question 4 that this count was for a cause for which the action was not brought. It must also be assumed on the record before us that said claim was included in the verdict in Curnow v. Silver, as it was argued and submitted to the jury and a general verdict returned. The question arises whether the effect was wholly to discharge the sureties or only to discharge them pro tanto. The trial judge took the latter view. From the balance between the verdicts in Curnow v. Silver ($568.92), he subtracted the maximum amount which the jury could have found for the plaintiff on said count 3, and ordered execution to issue in the present action for the difference ($56.26) with interest and costs. It may be that this would now result in substantial justice between the parties. But the difficulty is that by the well settled law an amendment which materially changes the nature of the cause of action, if made without notice to the sureties, discharges them) as it imposes upon them a liability other and greater than that which they assumed by signing the bond. Prince v. Clark, 127 Mass. 599. Willis v. Crooker, 1 Pick. 204. Freeman v. Creech, 112 Mass. 180. And see Mathews Slate Co. v. Sweeney, 219 Mass. 285. Such cases as Cutter v. Richardson, 125 Mass. 72, and Warren v. Lord, 131 Mass. 560, where the amendment did not in fact increase the risk of the sureties, have no application to the facts here disclosed. We are of opinion that the defendants were entitled to the ruling requested by them, and their exceptions must be sustained.
Plaintiff’s exceptions overruled.
Defendants’ exceptions sustained.