dissenting:
The material questions presented in this case are whether there was such a change of parties by the amendments of the complaint as to introduce any new or different cause of action; whether the testimony offered to sustain the amended complaint could have been introduced to support a judgment under the original complaint.
It is well settled that the liability of a surety cannot be extended beyond the terms of his contract. He is bound only to the extent of his obligation. It is not always essential that he should sustain an injury by the change in the pleadings. He has the undoubted right to stand upon the very terms of his contract, and if without his consent the contract is changed he is released.
The original complaint in the suit against Steele seems to *247have been drawn in a very perfunctory manner. If the pleader had given the matter any thought, it is safe to assert that no such pleadings would ever have been filed. The original complaint must be interpreted without reference to subsequent amendments. So interpreted, what is the cause of action?
If the complaint is susceptible of the construction that the indebtedness sued for was due and owing to Miles Quillen and John Donahue, then, of course, it follows that the sureties were released by the amendments subsequently made without their consent.
The averment in the complaint that “said defendant became and was indebted to these plaintiffs,” and that a portion of the indebtedness was “for money loaned and advanced by plaintiffs to defendant,” tends to support the proposition that the indebtedness sued for, or apart thereof, was due and owing from the defendant Steele to the said Miles Quillen and John Donahue; and, in the absence of other averments, the language used might be conclusive that such was the cause of action. It is, however, the duty of this court to examine all the allegations in the complaint in order to determine the effect and meaning of any particular clause. When so examined, I think it becomes apparent that the indebtedness was not alleged to be due to Miles Quillen and John Donahue in their own right as copartners, but was due to the survivor of the late firm of Quillen & Donahue; that Miles Quillen and Edward Donahue composed that firm, and that John Donahue was made a party to this suit under the erroneous impression of counsel that, in a suit to recover an indebtedness due to a partnership after the death of one of the copartners, it was necessary to make the administrator of such deceased partner a party plaintiff to the action with the surviving partner. It is consistent with all the averments in the complaint, when taken and considered together, to so hold. The substantial facts to be gathered from the averments in the complaint, all of which are more or less imperfect, are that between certain specified dates the defendant became and was indebted to the firm of Quillen & Donahue in the sum of one thousand *248seven hundred and eighty-three dollars and forty cents; that Miles Quillen and Edward Donahue composed that firm; that Edward Donahue was dead; that John Donahue had been appointed administrator of his estate, and that the business of the firm had been continued in the firm name. Acting upon these facts, the pleader seemed to think, as a conclusion of law, that owing to the death of Edward Donahue and the appointment of an administrator of his estate, the money became due and owing to the surviving partner and the administrator, and he so averred in his complaint.
Upon the death of one of the copartners it is the duty of the surviving partner to cease the partnership trade or business. If he acts otherwise and continues the business, it will be at his own risk, and he “will be liable, at the option of the representatives of the deceased partner, to account for the profits made thereby, or to be charged Avith interest upon the deceased partner’s share of the surplus, besides bearing all the losses.” (Story on Partnership, see. 343.) But the administrator “ of the deceased partner cannot insist upon carrying on the business in partnership Avith the surviving partner.” (Collyer on Partnership, sec. 131.) If the surviving partner takes the risk and continues the partnership trade or business, he Avould be entitled, in an action brought to recover the indebtedness due the firm, to include the indebtedness which accrued to him after the death of his copartner. (Slipper v. Stidstone, 5 T. R. 493; Davis v. Church, 1 Watts & Serg. 242.)
But such accounts must be separately stated. In this respect, as Avell as others, the original complaint Avas radically defective.
The authorities are numerous and uniform that actions brought to recover the amount due the firm should be in the name of the surviving partner. (Parsons on Partnership, 441-2 et seq.; Murray v. Mumford, 6 Cow. 442; Evans v. Evans, 9 Paige, 180; Daby v. Ericsson, 45 N. Y. 786; Clark v. Howe, 23 Maine, 560; Barry v. Briggs, 22 Mich. 201; Allen v. Hill, 16 Cal. 113; Tompkins v. Weeks, 26 Id. 66; Gleason v. White, 34 Id. 263; Probate Act, sec. 200, Comp. L. 680.)
*249The discontinuance of the suit as to John Donahue, administrator, did not, in my opinion, change the parties so as to introduce any new or independent cause of action. The mere fact that a change was made does not necessarily discharge the sureties. The change must, in my judgment, be material. A party plaintiff is authorized to amend his complaint in the particulars allowed by law, and so long as such amendments do not in any respect vary the original cause of action the sureties will still be bound.
The true rule in relation to this subject is clearly announced by Parker, C. J., in Ball v. Claflin, as follows: “ The new count offered under leave to amend must be consistent with the former count or counts, that is, it must be of the like kind of action, subject to the same plea, and such as might originally have been joined with the others. It must be for the same cause of action, that is, the subject-matter of the new count must be the same as of the old; it must not be for an additional claim or demand, but only a variation of the form of demanding the same thing. Amendments made conformably to the rule thus explained can do no injury to any one. Neither the defendant nor his bail, nor subsequent attaching creditors, have ground of complaint, when their liability is in no degree changed or affected, except merely in regard to rvant of form.” (5 Pick. 804.)
But if any material change is made the rule is different. To use the language of the same learned justice: “When one becomes bail for another, he is responsible only for the demand contained in the suit. * * * Another demand cannot be substituted or added without defeating the contract of bail. It is immaterial whether the substituted demand be greater or less than the one contained in the writ. The bail has a right to say, in liceo fcedera veni, and no other.” (Bean v. Parker, 17 Mass. 602.)
It follows from the principles announced in these cases that if Miles Quillen was the only proper party who could maintain the action as set forth in the body of the complaint, the discontinuance as to John Donahue, administrator, would be a mere variation of tlie form of de*250man cling the same thing, and, as such an amendment is clearly authorized by section 68 of the civil practice act, neither the defendant nor his sureties had any ground of complaint. Their liability was not thereby changed in any degree whatever.
The allegations set forth in the amended complaint under which the cause was tried were not, in my opinion, inconsistent with the original declaration. It required the same evidence to maintain the suit as it would to have sustained the original complaint. The form of the action was not changed; the identity of the cause of action was preserved; the amendments were added simply in order to cure the imperfections and mistakes in the manner of stating the plaintiff’s case. The real cause of action, from beginning to end, was identical and the same. The various amendments which were allowed did not in any respect tend to change the liability of the sureties upon the undertaking for the release of the attachment, and, in my judgment, did not have the effect to release them from their liability. (Ball v. Claflin, supra; Miller v. Clark, 8 Pick. 411; Lord v. Clark, 14 Pick. 223; Smith v. Brown, 14 N. H. 67.)
It is true that the averments in the amended complaint upon which the cause was tried are silent as to what portion of the indebtedness accrued after the death of Edward Donahue, and are in this respect as defective as the averments in the original complaint. The defect in this respect was waived, no demurrer having been interposed upon this ground. The fact is that the indebtedness alleged in the amended complaint is for the same amount and upon the same account, and almost as imperfectly stated as in the original complaint.
The objections to the entitling of the judgment are trivial. The words “surviving partner of the late firm of Quillen & Donahue” were merely descriptio personae. (Lord v. Clark, supra; Clark v. Lowe, 15 Mass. 176; Winningham v. Crouch, 2 Swan, 170; Merritt v. Seaman, 2 Seld. 168; White v. Joy, 11 How. Pr., 36), and certainly were not an essential part of the title of the suit. The capacity in which a person sues must be determined from the allegations in the complaint, and not from the title of the action.
*251There can be no question as to tbe identity of tbe judgment with tbe suit. Tbe discontinuance of tbe suit as to tbe administrator appears in tbe pleadings, which constitute a part of tbe judgment-roll. (1 Comp. Laws, 1266.) In .fact, it is not pretended that there was any other suit by Quillen against Steele, or that tbe judgment was rendered in any other action.
I am of tbe opinion that tbe .judgment of tbe district court ought to be affirmed.