defendant has the same power to obtain the bonds as evidence against such party, if he should be found, that the plaintiff had at the trial of this case.

The defendant also contends that the plaintiffs had suffered no loss when this suit was brought, and had no cause of action against the defendant, until they repaid the United States, which they did not do till after the date of the writ. This is not an action wherein the plaintiffs seek to recover indemnity for money paid to the United States, but to recover for money paid to the defendant's firm for forged bonds upon the express or implied warranty that they were genuine. No question is made that the bonds purchased were forged and counterfeit, nor is it questioned that the United States were entitled to immediate repayment, by the plaintiffs, of the money paid to them by the sub-treasurer at New York. The plaintiffs, therefore, could have maintained an action against the defendant at any time within six years from the sale. The fact that, for certair purposes and for the benefit of the defendant, it was agreed that the plaintiffs should not repay the United States until the test case was decided, could not affect the right of the plaintiffs to bring an action; although it may fairly be inferred from the arrangement between the parties that the defendant should not be called upon to pay the plaintiffs until the question was decided in the United States courts; consequently, the trial of such an action if commenced should be delayed until that time had arrived, which was the course pursued. The plaintiffs were from the first liable to the United States under their obligation to repay the money received, and this case stands precisely as if the action had been pegun before the parties made the agreement. See Kent v. Bornstein, 12 Allen, 344.

Judgment on the verdict.

LEONARD R. CUTTER vs. HENRY RICHARDSON & another.

Suffolk. March 12.- July 19, 1878. COLT & AMES, JJ., absent.

A surety on a bond, given to dissolve an attachment, is not discharged by the plain tiff's being allowed to file, without notice to him, an amended count, which does not change the cause of action, but merely states it more in detail than the original count.

If a general verdict is returned on a declaration containing two counts, one filed after a bond to dissolve an attachment is given, and without notice to a surety thereon, the surety is not discharged, if it appears from the record that the ver dict could not have been rendered on this count.

CONTRACT against the sureties on a bond given to dissolve an attachment in an action brought by the plaintiff against Henry F. Howe and others, by writ dated December 22, 1874. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

The first count of the declaration in the original action was on an account annexed, to recover $576.50, for the use and occupation of certain premises hired of the plaintiff by the defendants. The account annexed contained two items. The first was for the balance due for rent, November 1, 1874, amounting to $270. The second was for $306.50, the rent for the month of November, 1874.

The second count was to recover $576.50 rent, under a written lease, a copy of which was annexed. By the terms of the lease, rent was reserved at the rate of $166.66 a month.

The third count alleged that the defendants on July 1, 1873, hired of the plaintiff a certain house, being the same mentioned in the preceding counts, and agreed to pay the plaintiff $83.33 a month, while certain alterations and repairs were being made by the plaintiff, and, at the completion of these alterations and re pairs, to pay the plaintiff, monthly, at the rate of $3500 a year and a percentage of the cost of the alterations and repairs, and of the abatement on the rent while they were being made; that repairs were made at a certain cost; that the defendants occupied the house under the agreement until February 1, 1875, and paid the plaintiff rent monthly until October 1, 1874; and that they owed him $613, rent for the months of October and Novem ber, 1874, less $220 paid on account for the month of October.

The fourth count was on a written lease, a copy of which was annexed, from Jonas B. Hitchings to the defendants, of the same premises; and alleged a sale of the reversion to the plaintiff, and an attornment to him by the defendants; an occupation until February 1, 1875; and that rent was due for the months of October and November 1874, at the rate of $166.66 a month, as reserved in the lease.

The docket and files of the original action showed that the judge, trying the case without a jury, found for the plaintiff for $628.28, of which the plaintiff subsequently remitted the sum of $225.56.

It was admitted that judgment was entered for the plaintiff in the original action for the balance; that the execution issued thereon was returned unsatisfied; and that the third and fourth counts were allowed as amendments to the declaration, without notice to the sureties on the bond, and without their knowledge.

The defendants asked the judge to instruct the jury as follows: "1. The filing and allowing of the amendments to the declaration in the original action, without notice to the defendants in this action, and without their knowledge, discharged them from their liability as sureties upon the bond. 2. The finding in the original action being general, the court cannot say upon which count it was based, no evidence being offered to show upon which count it was based."

The judge declined so to instruct the jury, but did instruct them that the second and fourth counts of the declaration in the original action, being for two months' rent, under a lease fixing the rent at $166.66 per month, would not support the finding of the court in that case, the amount showing it must have been made on some other count; that the third count, filed and allowed by way of amendment, differed from the first only in stating in detail the mode in which the monthly rent, claimed in the first count, was ascertained and agreed upon; that it was for the occupation of the same premises, at the same rent and for the same length of time; that the amendments introduced no new cause of action; and directed the jury to return a verdict for the plaintiff. The defendants alleged exceptions.

C. R. Train & J. O. Teele, for the defendants.
A. E. Pillsbury, for the plaintiff.

ENDICOTT, J. The declaration in the original action contained two counts: the first for use and occupation of certain premises according to an account annexed; the second, for rent of the same premises according to the terms of a written lease. After the bond now in suit was given, the plaintiff, without notice to these defendants, filed two additional counts. The third count, so filed, is obviously an amendment to the first, and the fourth to the second count of the original declaration. The defendants contend that these counts introduced a new cause of action, and that they are discharged from their liability as sureties on the bond; and also that, as the finding of the judge in the original action was general, the court cannot now say upon which count it was based.

But it is evident, from an inspection of the record, that the finding of the judge in the original action was not based upon the second and fourth counts. Under the second count, as amended by the fourth, rent at the rate of $166.66 per month, for two months only, could be recovered; under the first count, as amended by the third, $306.50 per month, for use and occupation during the same period, could be recovered, deducting therefrom $220, paid by the tenant on account. The original finding of the judge was for $628, evidently based upon the first and third counts, but failing to allow the credit stated in the third count. This error was corrected by the plaintiff remitting a portion of the finding. It is clear, from this recital, that the amount thus finally determined, which is much in excess of any sum that could be found due under the second and fourth counts, could not have been based on those counts, but must have been on the first and third counts. See Brown v. Howe, 3 Allen, 528.

Nor can it be said that the third count, in amendment of the first, introduced any new cause of action whereby these defendants were discharged. It was for use and occupation of the same premises, at the same rent, for the same length of time. It differed from the first only by stating in detail the mode in which the sum payable per month, for use and occupation of the premises, was ascertained and agreed upon, and contains a credit for money paid by the tenant, not stated in the first count.

The rulings at the trial were therefore correct. See Mann v Brewer, 7 Allen, 202; Wood v. Denny, 7 Gray, 540, 542, and cases cited. Exceptions overruled.

ABBY JOHNSON vs. BOSTON AND MAINE RAILROAD.

Suffolk. March 14.-July 19, 1878. COLT, J., absent. LORD, J., lid not sit.

If a person buys a ticket which entitles him to a passage over a railroad from A. to C., and stops at B., intending to resume his journey to C. the same day, leaves the station at B.. and afterwards, while on his way to the station of another railroad corporation near by, for the purpose of meeting his son, returns to the station which he had left, and is injured while crossing the tracks, through the negligence of the railroad corporation which had sold him the ticket, when he might have crossed the railroad at a highway crossing, he is a trespasser, and cannot, in the absence of evidence that the negligence was wilful, maintain an action for the injury, although the defendant's platforms extend between two highways crossing the track, and people have been accustomed to pass from the station on one railroad to that on the other at that point, without objection by the corporation; and although his ticket does not forbid stopping over at B.

TORT for personal injuries occasioned to the plaintiff by the alleged negligence of the defendant.

Trial in the Superior Court, before Wilkinson, J., who, after verdict for the defendant, reported the case for the determination of this court in substance as follows:

The plaintiff offered evidence tending to show that on December 4, 1875, she purchased a ticket at the defendant's office in Boston, entitling her to be carried over the defendant's road from Boston to Lawrence, and thence, over the Manchester and Lawrence Railroad, to Manchester, New Hampshire; that the ticket had coupons attached, and contained no limitations as to the time when it was to be used, and was silent as to the right of the party holding it to stop over at any point on the line; that she took the train leaving Boston about noon, and, having occa sion to stop at Somerville on the line of the defendant's road, in order to see her son, whom she was expecting by a train upon the Eastern Railroad, at the station of the latter road in Somerville, a few rods distant from the defendant's station, she stepped from the train at the defendant's station in Somerville, intending to .esume her journey by another train on the defendant's road, which would leave Boston at five o'clock on the same day; that after leaving the car she proceeded to a house near by the station; that the defendant's station and grounds at Somerville extend the entire distance between Cambridge and Perkins streets,