Peck v. Sill

Hosmer, Ch. J. By his attachment, the plaintiff obtained priority of lien. The amendment, however, which the county court permitted him to make, constituted a nezo ground of action, against a nezo party ; and by reason of it, the lien was annulled. The construction of the statute concerning amendments has, with much propriety, been very liberal; but it has not been, and cannot be, extended to an alteration, which varies the ground of the action, ánd introduces a new party on the record. A debt due from Hall & Robbins has no identity with a debt due from Hall only ; and the natural person Hall is not the artificial person formed by the copartnership of Hall & Robbins. The judgment of the county court, although necessary to the continuance of the lien, did not create it: the foundation of it was a lawful attachment; and whatever fact terminated the attachment, equally dissolved the lien. The manner of proving the dissolution of the lien, by pa-rol testimony, was altogether unexceptionable. It was the best evidence the nature of the case admitted of; nor can I conceive how the point could otherwise have been evinced. The plaintiff, on whom the proof regularly devolved, to shew the priority of his lien, must have resorted to the same evidence. The production of the attachment in a suit against [160] Hall & Robbins, would be wholly inapposite to shew a continuance of the lien, by judgment, in the action against Hull only; nor could it have been made relevant, unless by -the exhibition of the same testimony on which the defendant relied. No fraud is imputed to the plaintiff, by the record ; nor was it necessary. By the change of action and party, the lien was terminated as effectually as if the suit originally commenced by the plaintiff had been withdrawn ; as most clearly it was abandoned, and another substituted. The determination of the superior court was, unquestionably, correct. The other Judges were of the same opinion. New trial not to be granted.