Richards v. Storer

Ames, J. It would be impossible to sustain these exceptions without overruling the decision in the recent case of Tucker v. White, 5 Allen, 322. In that case as in this, the plaintiff in the original action, of his own motion, and without notice to the surety, discontinued against one of two defendants, and upon summoning in a new joint defendant, took judgment against him and the remaining original defendant. The bond declared on is conditioned for the payment of the judgment which the plaintiffs should recover in the original action. The judgment actually rendered was against a new party, and is entirely different from any which the surety had in view when he signed the bond. He never assumed, and the law has not imposed upon him, any obligation to pay the amount of that judgment. It is immaterial that by the terms of the bond William S. Gibbs was the party promising to make the payment. The judgment which the bond describes is not the judgment which the plaintiffs recovered, and consequently there has been no breach of the condition of the bond. The plaintiffs therefore cannot maintain their action. In Leonard v. Speidel, 104 Mass. 356, the decision in Tucker v. White is reaffirmed. Judgment for the defendant.