Suit on the bond of a residuary legatee, which was conditioned to pay the debts of the testator. The plaintiff by his declaration alleged as a breach the failure to pay a claim which had been allowed in his favor by the probate judge. Afterwards, against the objection of the defendants, he was allowed to add to his declaration a count alleging as the breach the failure to pay a note held by him, and which constituted the claim which had been allowed in his favor. The note was more than six years overdue when the amendment was allowed. The defendants now apply for mandamus to compel the vacating of the ordel permitting amendment.
Held, that as the plaintiff had not been allowed to bring in by his amendment any new cause of action, the motion should be denied.