ecutor's bill for instructions nor his declaration in the action at law, was admissible. They both were admissible as showing the claims made by him against the estate of Mrs. Cooke. Peck v. New England Telephone & Telegraph Co. 225 Mass. 464. We see no error of law in the rulings made by the single justice. Exceptions overruled.

MORRIS A. MILLER vs. JENNIE LEVITT.

Suffolk. November 22, 1916. - March 10, 1917.

Present: RUGG, C. J., LORING, DE COURCY, CROSBY, & CARROLL, JJ.

Bills and Notes.

Under R. L. c. 73, § 46, the payee of a negotiable promissory note, who is a holder for value and to whom the maker gave an assignment of a chose in action as security, may maintain an action against one, whom he knew when he took the note to have been an accommodation indorser, without first exhausting his rights as to the security.

CONTRACT upon promissory notes described in the opinion. Writ in the Municipal Court of the City of Boston dated February 18, 1916.

On removal to the Superior Court the case was referred to an auditor, the parties agreeing that the auditor's findings of fact should be final. Material facts found by the auditor are described in the opinion. Upon the facts found by the auditor, Fox, J., ordered judgment for the plaintiff in the sum of $677.43 with interest from the date of the filing of the auditor's report. The defendant appealed.

S. Sigilman & W. P. Murray, for the defendant, submitted a brief.

S. Brenner, for the plaintiff.

CARROLL, J. This is an action against the indorser on two promissory notes, made by Julius Waldstein and payable to the plaintiff, a holder for value. The defendant was an accommodation indorser and known to be such by the plaintiff. The defendant contends, that although the notes were dishonored for non-payment, and notice of dishonor was given her, she is not

liable, because the plaintiff received from Waldstein in September, 1915, an assignment of all his interest in a contract with the city of Boston for the construction of the Condor Street sewer, and that this security should be applied in payment of the debt before she can be called upon to pay. One of the notes was given in October, 1915, after the execution of the assignment. The other note was dated August 23, 1915, and matured in four months. Nothing has been received from the contract since the assignment, and the plaintiff has brought an action thereon, which is still pending against the city of Boston.

Under the negotiable instruments act, the defendant is liable on the notes notwithstanding the plaintiff, at the time of taking the instrument, knew her "to be only an accommodation party.' R. L. c. 73, § 46. When the notes were dishonored for non-payment the holder had the immediate right to have recourse to the indorser (R. L. c. 73, § 101) and he was not required to exhaust his security before so doing.

A creditor is not required to realize on the security left with him before applying to the debtor or other person who may be responsible for the indebtedness. Burnham v. Windram, 164 Mass. 313. Whitwell v. Brigham, 19 Pick. 117. Brick v. Freehold National Banking Co. 8 Vroom, 307. Nothing has been received by the holder from the assignment and none of the security has been surrendered, therefore cases like Guild v. Butler, 127 Mass. 386, are not in point. The defendant's contract with the plaintiff was to pay the notes when dishonored. There was nothing expressed or implied in the contract giving her the right to this additional security, at least before she paid the debt, First National Bank of Buffalo v. Wood, 71 N. Y. 405, and there was no agreement by the holder to convert the collateral security into money before suing the indorser. In fact, the plaintiff may never recover on the contract with the city of Boston. It would be contrary to the agreement of the parties to postpone the rights of the plaintiff against one secondarily liable, until he first resorted to the security. Franklin v. Browning, 54 C. C. A. 258. Carver v. Steele, 116 Cal. 116. Brick v. Freehold National Banking Co., supra. Sterling v. Marietta & Susquehanna Trading Co. 11 Serg. & R. 179. "It would be overthrowing long established rules seriously affecting the rights and liabilities of parties, to hold

that resort must be first had to a mortgage or other instrument taken as collateral to secure the same." First National Bank of Buffalo v. Wood, supra. See Faneuil Hall National Bank v. Meloon, 183 Mass. 66; Alldred's estate, 229 Penn. St. 627; Allison v. Hollembeak, 138 Iowa, 479.

Judgment affirmed.

CHARLES NESZERY vs. DANIEL B. BEARD.

Suffolk. December 5, 1916.

March 12, 1917.

Present: RUGG, C. J., LORING, Braley, De COURCY, CROSBY, PIERCE, & CARROLL, JJ.

Practice, Civil, Amendment of writ. Jurisdiction.

Under R. L. c. 173, § 48, the Superior Court has power, in an action in which the defendant has appeared generally, to allow an amendment increasing the ad damnum of a writ from $300 to $600 although the original writ was returnable to a municipal court and was served by a constable, who under R. L. c. 25, § 89, had no power to serve a writ whose ad damnum exceeded $300. In the case stated above LORING & PIERCE, JJ., concurring in a separate opinion, called attention to the fact that the question, whether the defendant might have moved successfully for an abatement of the action on the ground that he had not been brought into court upon the amended writ, was not before the court and on that question they expressed no opinion.

CONTRACT under R. L. c. 165, § 49, to recover $267.09, collected for the plaintiff by the defendant as an attorney at law, with five times the lawful interest thereon from April 1, 1914. Writ in the Municipal Court of the City of Boston dated May 2, 1914.

The ad damnum of the writ was $300 and it was served by a constable by an arrest of the defendant under R. L. c. 168, § 1. The defendant gave bond and appeared pro se.

On removal to the Superior Court the case was tried before Bell, J., on December 3, 1914, and there was a verdict for the plaintiff in the sum of $320.51. Exceptions by the defendant at that trial were allowed on February 26, 1916, and were overruled on May 19, 1916, by a decision reported in 224 Mass. 305.

On April 6, 1916, a motion of the plaintiff to amend his writ by increasing the ad damnum from $300 to $600 was allowed by Wait, J.; and the defendant alleged an exception.

The case was submitted on briefs at the sitting of the court in December, 1916, and afterwards was submitted on briefs to all the justices.

G. T. Perry, for the defendant.

C. W. Rowley, for the plaintiff.

RUGG, C. J. The only issue raised by these exceptions, as stated in the brief for the defendant, is whether "the ad damnum of a writ can be increased by amendment after verdict to an amount beyond the jurisdiction of the officer serving the same." A constable has authority only to serve writs in which the damages are laid at a sum not exceeding $300. R. L. c. 25, § 89. The writ in the case at bar, not exceeding that sum, rightly was served by a constable. After the writ was entered in court, an amendment was allowed, subject to an exception by the defendant, increasing the ad damnum to $600.

It was said in Smith v. Robinson, 13 Met. 165, at page 166, "The only object of the service of the writ by a proper officer is, to bring the party into court." When a party is summoned into court by an officer duly empowered to serve the process, and appears in response to that process, he becomes subject to the jurisdiction of the court. The function of the officer serving the process is at an end. By a general appearance in response to a proper process a party is as completely in court as if he had voluntarily appeared in response to a summons wrongly served by a constable.

When a person has become subject to the jurisdiction of a court he must submit to whatever amendment may be within the lawful power of the court to allow. The jurisdiction of the court is the only limit to its power to allow amendments increasing the ad damnum of the writ. Hall v. Hall, 200 Mass. 194. The statute as to the allowance of amendments is broad. R. L. c. 173, § 48. It is remedial and has been construed liberally. McLaughlin v. West End Street Railway, 186 Mass. 150. Brooks v. Boston & Northern Street Railway, 211 Mass. 277, 279. It is not necessary to review the numerous cases illustrative of the freedom of amendment under our practice. Referring only to those closely analogous to the case at bar: it has been held that a writ directed to a sheriff or his deputy, but served by a constable, may be amended by the insertion of a direction to a constable, Hearsey v. Bradbury, 9 Mass. 95, Aldrich v. Aldrich, 8 Met. 102, 106, Blanchard v.

Waters, 10 Met. 185; that an inferior magistrate may allow an amendment reducing the damages claimed in a writ from an amount in excess of to a sum within his jurisdiction, Hart v. Waitt, 3 Allen, 532; and that where service was made simply upon an attorney at law in an action against a corporation amendment might be allowed, without further service, averring that the defendant was a foreign corporation and other facts showing that such service might be legal, Aldrich v. Blatchford, 175 Mass. 369, 372; and that a constable may serve an execution the amount of which is less than $300, although the original judgment was for more than that sum, Dalton-Ingersoll Co. v. Hubbard, 174 Mass. 307, 310. Even after verdict, the amount of damages laid in a writ may be increased, Laxton v. Hay, 211 Mass. 463, and an amendment to the declaration allowed. Halloran v. New York, New Haven, & Hartford Railroad, 211 Mass. 132. The liability of a surety on a bond to dissolve an attachment is not affected by an amendment increasing the ad damnum of a writ provided the penal sum of the bond is not exceeded. McNeilly v. Driscoll, 208 Mass. 293. For a collection of cases showing how much greater liberality of amendment exists in Massachusetts than in other States, see Ann. Cas. 1913 B 709, 710.

It is manifest that no substantial rights of the defendant can be affected whether the service of the writ had been by a deputy sheriff or a constable. It would be a refinement without advantage and against sound administration of justice to uphold the defendant's contention. It follows that the allowance of the amendment was not beyond the power of the court.

The case at bar is quite distinguishable from Hart v. Huckins, 5 Mass. 260, where it was apparent from an inspection of the papers that a constable had attempted to serve a writ in a real action as to which he was utterly without power and in which the defendant did not submit himself to the jurisdiction of the court. So, also, it is unlike Ladd v. Kimball, 12 Gray, 139, where the ad damnum of the writ was beyond the jurisdiction of the magistrate and no motion for reduction was made until after the case was pending in the appellate court.

Exceptions overruled.

LORING and PIERCE, JJ., concur on the following grounds: The fact that the amendment made the writ one which a constable