delivered the opinion of the Court. This is ah action on the case against the sheriff for the neglect of one of his deputies, in not returning a bail-bond, taken by him in an action in favor of the plaintiff against John Williams and others, and for not delivering the same to the plaintiff on demand. The defence is, that after the service against Williams and others, the plaintiff, by leave of court, amended his original declaration, and inserted a new demand, and thereby discharged the bail. If such was the legal effect of the amendment, there can be no doubt, that it is competent for the defendant to show it, by way of defence, in this action. But we are of opinion, that it does not appear by the facts agreed, that any new demand was embraced by the amendment ; and it is expressly agreed, that the plaintiff did not recover judgment on any such demand, but only on his original claim. Now if the amendment might embrace a new demand, yet as judgment was rendered on the original demand only, the bail are not liable but to that extent, and cannot therefore be injured by the amendment. To hold the bail discharged under these circumstances, would be going quite too far, and beyond any of the decisions cited by the defendant’s counsel, which have gone far enough in limiting the privilege of amendment, and ought not to be extended. In Hill v. Hunnewell, 1 Pick. 192, it was decided, that, in an action where an attachment had been made, and that action and all demands had been referred to arbitration, and judgment had been thereupon recovered, the mere fact' of entering inte such a reference dissolved the attachment, and that it would likewise discharge bail, for otherwise subsequently attaching creditors, and bail, might be injured ; but if it had been shown in that case, that no new demand had been admitted by the referees, then the subsequent attaching creditors could not have been injured, and the reason of the decision would have failed. And, that the plaintiff would have been allowed in that case to show that no new demand had been proved before the referees, nor allowed by them, appears quite- clear by a note in the case of Willis v. Crooker, 1 Pick. 206. The burden of proof, it is there said, lay on the plaintiff; and so it undoubtedly would in the present case, if it were not removed by the defendant’s admission *181>t the fact. But the fact being admitted, that the plaintiff took judgment for his original demand and no more, there is no ground remaining on which the bail could claim to be discharged. It becomes therefore unnecessary to decide the question, whether the amendment does embrace any new demand, or whether it amounts to any thing more than the assignment of a new breach of the obligation declared on in the original writ. However this may be, the plaintiff is entitled to judgment, and for his whole demand. The poverty and inability of the Williamses to pay, cannot be allowed to be given in evidence in mitigation of damages, as was decided in Simmons v. Bradford, 15 Mass. R. 82.

Judgment for the plaintiff.