majority"> Prentiss, Ch. J.,

delivered the opinion of the court. — The original action, in which the defendant became bail, was brought by the plaintiff, to recover of Caleb Eldred the forfeiture incurred by him, under the statute, as a party to a fraudulent and deceitful judgement. After the defendant entered into the recognizance for the review of the action, the plaintiff, by leave of court, amended his declaration, by filing a new count ; and it appears that final judgement was recovered by him on the new count.

In the English practice, if the plaintiff declares against the defendant on a different cause of action from that expressed in the writ, the bail is discharged ; and there is no doubt of the principle, that where the plaintiff, in an action in which bail is taken, files a new count for a cause of action not contained in the original declaration, and judgement is rendered on the new count, it will discharge the bail. But the court are authorized to permit either *441of the parties, at any time, to amend any defect in the process or , ,. , ... . ,. . pleadings, upon such conditions as they shall, in their discretion, prescribe; and though the addition or substitution of a new count for anew cause of action,is not within the statute of amendments, ... . . yet adding or substituting a new count for the same cause of action is undoubtedly within the power of the court. The obligation of bail is assumed with a knowledge of this right and power to amend, and with an understanding that the action is subject to the exercise of it; and where the amendment does not make the bail liable to a greater sum, or subject him to any new or additional responsibility, he has neither in law or justice any ground of complaint. On examination of the record, in the original action, it is very apparent that the same evidence would maintain both counts, and that the cause of action is the same in both. The original count slated the facts, which constituted the cause of action, particularly and at length. The new count is more brief, but slates the material facts, which formed the ground of action, and they appear to be the same contained in the original count. The only difference between the counts consists in this : in the conclusion, one demanded the value of the property taken to satisfy the cov-inous judgement as the forfeiture, and the other demands the amount of the money contained in the judgement. But the amount of the judgement, and not the> value of the property, was the forfeiture given by the statute : and the conclusion demanding the value of the property was nugatory and void. The whole amount recovered by the plaintiff on the new count must have been recovered, if any thing, on the original count, and there could be no difference in the rule of damages upon them. A wrong conclusion of a count is one of the defects which the court have power to amend, and whatever may be the form in which the amendment is made ; whether by altering the original count, or adding or substituting a new count, it does not affect the responsibility of the bail.

Judgement of the county court reversed, and judgement entered for the plaintiff.

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