Cain v. Rockwell

132 Mass. 193 | Mass. | 1882

Morton, C. J.

The power of our courts to allow amendments is very broad, permitting such amendments, either in form or substance, as are necessary to enable the plaintiff to sustain the action for the cause for which it was intended to be brought, or the defendant to make a legal defence. Gen. Sts. c. 129, §§ 40-42.

There can be no doubt that in this case the amendment changing the name of the plaintiff from “ Mary Cain ” to “ Ann Cain,” thus correcting a mere clerical error or misnomer, was rightly allowed. Crafts v. Sikes, 4 Gray, 194. The only question is whether this amendment vacated the attachment of the funds in the hands of the trustee, so as to give the assignment to the claimant, made before the amendment, the preference over the attachment.

As stated by Mr. Justice Wilde in Haven v. Snow, 14 Pick. 28, “ amendments in form merely will not dissolve an attachment so as to let in subsequently attaching creditors, or discharge bail. To have this effect, the amendment must be such as may let in some new demand, or new cause of action.”

In the case before us, the misnomer of the plaintiff was a mere misdescription of her cause of action, which could not mislead or injuriously affect the trustee. The amendment did not introduce a new cause of action. This case cannot be distinguished from the case of Wight v. Hale, 2 Cush. 486, where by an amendment the name of one of the plaintiffs was changed from “Wright” to “Wight,” and it was held that it did not vacate the attachment, so as to let in an intervening title acquired before the amendment.

The case of Terry v. Sisson, 125 Mass. 560, upon which the claimant relies, differs essentially from the case at bar. In that case, the writ was originally brought against Sarah Sisson. It was afterwards amended by making the defendant Sarah F. Sisson. But before the amendment, the trustee, a savings bank, being called upon by Sarah F. Sisson, who had money deposited with it, had, in good faith and with no notice or knowledge that the person intended to be sued was Sarah F. Sisson, paid over to her the amount of the deposit. The trustee having been misled by the misnomer of the defendant, and having paid the funds in its hands to the depositor, in good faith, it was held that the subsequent amendment of the writ could not make it liable to pay the same over again to the plaintiff.

We are therefore of opinion, that the plaintiff’s attachment in the case before us was not vacated by the amendment, and that she is entitled to judgment against the defendant.

Judgment for the plaintiff.