
    Joel Miller versus Joel Clark et al.
    
    
      It seems, that an amendment by filing a new count for the same cause of action contained in the original writ, will not discharge bail from their responsibility Per Wilde J.
    Where a sheriff attaches goods upon an original writ and delivers them to a bailee upon his engaging to redeliver them on demand, such an amendment does not discharge the bailee from his responsibility to the sheriff.
    Assumpsit. The plaintiff, as a deputy sheriff, attached certain property of Noah Clark on a writ in favor of one Lamb as executor against N. Clark, and delivered it to the defendants, taking from them a receipt in which they promised to redeliver it to the plaintiff upon demand. The present action was founded upon this receipt.
    The defence was, that after the entry of the action of Lamb against Clark, Lamb, by leave of court, amended his writ, which contained only one count, by adding three new cou. ts. The original count was for money had and received by N. (.Hark to the use of Lamb as executor. The first additional count was for money had and received to the use of the testator, and a promise in consideration thereof to pay the executor ; the second, on an insimul computassent between Lamb, as executor, and Clark, of money due to Lamb as executor, and a promise to pay him as executor ; and the third, for money had and received to the use of the testator, and a promise to pay the testator.
    The defendants offered evidence to prove that the property attached was not removed from the farm where N. Clark lived with one of his sons, who is one of the defendants, and that it remained on the farm until after the amendment of the writ, when N. Clark sold a part or the whole of it to two of his sons.
    
      Wilde J. was inclined to the opinion, that the attachment was not dissolved by the amendment, there being no proof that any new demand was proved under the new counts. The defendants thereupon agreed to be defaulted, with liberty to move to take off the default; which motion was to be granted, if the Court should be of opinion that the attachment was dissolved.
    
      G. Bliss and J. H. Ashmun,
    
    relied on the cases cited in Clark v. Lamb, 6 Pick. 512, (argued on the preceding day,) as showing that the new counts were for a different cause of action ; and to show that the attachment was dissolved by the amendment, they cited Bean v. Parker, 17 Mass. R. 591 ; Danielson v. Andrews, 1 Pick. 156 ; Hill v. Hunnewell, ibid. 192 ; Willis v. Crooker, ibid. 204 ; Spalding v. Mure, 6 T. R. 363 ; Putnam v. Hall, 3 Pick. 445 ; Denny v. Ward, ibid. 199. Bail are discharged by a reference of all demands ; and the insimul computassent embraced all the demands which would have come within such a reference. In Willis v.
    
      Sept. 23d. 1828
    
      Crooker, where the original count was for money had and received, filing a new count upon an account annexed was held t0 discharge the attachment. In regard to the question before the Court an insimul computassent stands on the same ground as an account annexed. The defendants are to be viewed in the.light of bail ; they are responsible for the property attached, as bail are for the body. Brigham v. Este, 2 Pick. 425, and Cooper v. Moiory, 16 Mass. R. 5, were also cited.
    
      Dewey and Bowdoin, contra, as to the distinction between oail and a receipter for property attached, cited Phillips v. Bridge, 11 Mass. R. 247; Whittier v. Smith, ibid. 211; Perley v. Foster, 9 Mass. R. 112.
    
      April term 1830
    
   Wilde J.

delivered the opinion of the Court. Upon the facts stated in the report of this case, we are of opinion that r . . r the attachment made by the plaintiff was not dissolved by the amendment of the writ, and consequently that he is entitled to judgment.

Whether such an amendment would discharge bail, is a question not now to be decided ; but I apprehend it would be difficult to assign any good reason why it should have such an operation. This is not like the case of Bean v. Parker Sp al. 17 Mass. R. 591, for here was no new demand substituted or proved under the new counts. If there had been, undoubtedly it might have been proved in the defence. Bail is responsible ' for the demand contained in the suit ; and he is not discharged from his responsibility, as it seems to me, by the plaintiff’s declaring against the principal in a different form, provided it is for the same demand.

This, however, is not a case against bail. The defendants were the mere servants of the plaintiff, or keepers of the property attached, and thus were bound by their contract to deliver it up on demand. If they had performed their contract, they could by no possibility have been exposed to any loss. Nor have they any defence under the subsequent sale by the debtor, for the purchasers took the property subject to the plaintiff’s lien, which was then subsisting in full force against the debtor. The previous amendment could not dissolve it in respect to him ; and the purchasers can stand in no better situation than the debtor did at the time of the purchase. The plaintiff’s attachment was as valid as it would have been if it had been made on a new writ at the time when the amendment was made. This case therefore is clearly distinguishable from all the cases where questions have arisen between attaching creditors, and nothing appears to justify the non-performance of the defendant’s contract.

iMotion to take off the default overruled. 
      
       See Fairfield v. Baldwin, 12 Pick. 388.
     
      
       See Seely v. Brown, 14 Pick, 177; Wright v. Brownell, 3 Vermont R 435; Robeson v. Thompson, 4 Halsted, 97; Matthews v. Armstrong, 4 Verger, 181; Pellv. Griggs, 4 Cowen, 426; Bluc Stout, 3 Cowen, 354; Bryan v. Bradley, 1 Taylor, 77; Waples v. Derrickson, 1 Harring. 134; Murrel v. Halbert, 1 Bailey, 238; West v. Rutledge, 4 Devereux, 40; Woodfolk v. Leslie. 2 Nott & M‘Cord, 585.
     