Being unable to concur in the opinion of the court, as at present advised, I will present the reason of my differing, very briefly.
The pleadings in the cause, exhibit a singular confusion, and much time might be spent in dissecting them, and in pointing out the difficulties; but I shall advert to one only, *304and this mainly, to show, that it is not overlooked. It has not been determined by the court below, whether the Insurance Company and Edwards & Turner, are both liable on the contract sued, nor which one, if only one. This question is not presented by the motion before us, and the solution is of no importance toward the decision of the questions which are presented.
I assume that an amendment cannot be made, which substitutes an entirely new cause of action, for the one originally declared on. Again, I consider the legal idea of a cause of notion, as involving the parties as well as the facts. The ■“cause of action” is not simply the promise, but the promise by a certain person. A fact simply, does not constitute a cause of action, as in trespass; but a fact done by some one. ' If this be not true, you may change the party defendant in an action at your pleasure, on paying the cost. But no one thinks he can allege a promise or trespass by A. and then amend by substituting the name of B. And no more, it seems to me, can we allege a promise against A. and B., and then amend by alleging one against A., B. and C. In legal sense, a promise by A. and B, is as distinct from one by A., B. and C., as is one made by A. alone distinct from one by B. alone. And they constitute entirely distinct •causes of action. That they relate to the same subject matter, makes no difference. Suppose a declaration on a promissory note, made by A. and B., an amendment could not be made declaring on one made by A., B. and C. This would not be an amendment. Satisfy the court that it was the •same promissory note, and that one of the names was omitted by clerical mistake, and the amendment might be allowed, for this would be an amendment. In the case at bar, the' original promise declared upon, stands as an oral one, by the company and Edwards & Turner. The one introduced by the amendment, is a written one, by the company, Edwards & Turner, and Earner. I lay no stress iipon the fact, that it is in writing, for I suppose a written contract may be substituted for an oral one, by amendment, all other things being right. But I do not think the contract of the *305company with. Edwards & Turner, is tbe same witb tbe contract of tbe company, Edwards & Turner, and Earner. Suppose another case: A. and B. underwrite on tbe ship. Argos, for ten thousand dollars,, and A., B. and C., underwrite on tbe same ship for another .ten thousand, and she is lost. Here tbe ship* is tbe same, and tbe loss is tbe same, and yet they are distinct contracts.
The liberality of amendments allowed by tbe Code, is urged in favor of this proceeding. I heartily concur in this liberality; but I would save it from being made the instrument of confusion, to which there seems to be a strong tendency in much of the practice. The eofnmon law is not abolished. Its principles and distinctions nearly all remain, although the forms and modes are changed. The allowance of this amendment, seems to me to open the way to an amount of irregularity, whose extent I cannot undertake to foresee. Section 1688 of the Code, seems to refer to proceedings in chancery, but, admitting that it includes those at law, still the new party, to be thus brought in, must be related to the original cause of action; and to make him so, it is not sufficient that he is connected with the same facts.
In my opinion, the judgment of the court below should be sustained.
END OE CASES DECIDED AT THE JUNE TERM, 1855.