Martin vs. Atkinson.

plication ought to be narrowly and closely inspected, and a just and necessary case clearly made out." Bowen vs. Cross, 4 J. C.

R. 377.

It would seem a logical inference from this proposition, that where a case is manifestly just, where the ends of general justice would be promoted, the amendment would be allowed.

[4.] Now this is not a case of the mistake of a fact by the defendant, for from the beginning he was cognisant of what the answer was, as well as what it ought to be. Nor was there fraud or surprise here; nor is it pretended that new matter has been discovered since the answer was put in. This case does not therefore fall under any of those heads. We are fully satisfied, notwithstanding, that it is fully within the principles upon which amendments are allowed. It is, in the first place, a case of manifest justice; in the language of Chancellor Kent, a just and necessary case. The correction of the answer is, as to a point material for the defence; upon the correction depends several hundred dollars. The error in the answer, was made originally by defendant's solicitor-it was as to him, a mistake. It was perceived and protested against, at the time that the defendant swore to the answer. He swore to it with a protest against its truth, and was induced to swear to it by two assurances, upon which he seems to have rested-one, that the error would not effect his legal rights, and the other, that the error would be, in time, and at the proper time corrected. I know that no mistake as to legal rights will justify an amendment, yet this assurance, and the impression made by it, are material, as characterizing the whole transaction. It never was the purpose of this defendant to answer otherwise, than as he now proposes to make his an

swer.

In moral verity, he has never answered otherwise than according to the amendment asked.

The proposition now made is not so much to alter the answer, as to make the record correspond with what the answer, in fact, was. This application is no after-thought, suggested in the progress of the cause, by the developements in the case, by eviidence, trials, interlocutory judgments, or any thing else. It springs not out of the late exigences of the defence, but was contemplated, asked, desired and expected from the beginning. The defendant personally, is not in default. He may be ignorant, for no knowing, cautious, artful man, would have sworn to this an

rent.

Martin vs. Atkinson.

swer, as he did. His simplicity and his honesty are equally appaWhere these combine to prevent justice, it is a clear case for relief. It is impossible that this application can be made from corrupt motives. The history of the matter, as disclosed in the affidavits, demonstrates the impossibility of such motives. The equal rights of mankind-what Lord Eldon calls general justice, as much as the particular equity due to this individual, require the application to be granted.

Again, the allowance of this amendment would not impair the strength of the penal law against perjury, nor conflict with the general policy of the criminal administration. For the reason,

that as this whole matter appears upon the record, the defendant is obviously, not guilty of perjury. So obvious is his innocence, that it can do no harm as a precedent.

This case, although not in its precise facts, like any one which I have been enabled to find in the books, falls within the principles of some of the adjudications, where amendments have been allowed. The Solicitor, drawing the answer from his own notes, taken from the defendant's statements, inserted by mistake an admission contrary to the wish and intention of his client, and highly injurious to his interests. To correct that admission, is the object of the amendment. Like to this in principle, is the case of Nail vs. Punter, 4 Sim. 474. In that case, the defendant had wished to insert a fact in his original answer, but was induced to leave it out, upon the mistaken advice of his Solicitor. The amendment was allowed. Here the defendant intended not to insert a material fact, to-wit: the admission about the Dooly tract of land, and it was inserted, not by the mistaken advice of his Solicitor, but by a mistake, in fact, by his Solicitor, as to what his client wished him to insert. This case seems to me stronger than the former, in this-that the former case went upon a mistake by counsel, as to the legal rights of his client; in this case, the mistake of counsel was as to a fact to be admitted, or not, in the answer. For, generally, a mistake as to legal rights, is not good cause for allowing amendments.

In Bowen vs. Cross, 4 J. C. R. 375, application was made to file a supplemental answer upon the affidavit of defendant's Solicitor, stating that an account containing the items of the debt, alleged to be due from the plaintiff to the defendant, was handed to the Solicitor at the time of drawing the answer, and that the

Martin es. Atkinson.

Solicitor omitted to attach it to the answer, from a belief that it was unnecessary. The amendment proposed, was to attach the account to the answer, which was allowed by Chancellor Kent. After a review of the cases relative to this doctrine, the Chancellor says" in the present case, the defendant moves to make sundry amendments, but there is no ground for the indulgence, except as to the mistake sworn to have arisen on the engrossment of the answer, and not discovered until after it was filed, and as to the omission of the Solicitor to make the schedule referred to in his affidavit, a substantive part of the answer. The defendant handed the document to the Solicitor, when he was to prepare the answer, and no doubt it was his intention that it should have been used in a way the most fit and proper for his defence. The omission to annex it, may be imputed to a mistake in the Solicitor; and after some hesitation, I am inclined to permit a supplemental answer to be filed, in respect to those two omissions, and as to them only." This decision goes upon two grounds-the intention of the defendant that the schedule should be annexed to his answer, and the mistake of the Solicitor in omitting to attach it. Now, in the case before us, the intention of the defendant not to answer, as he did originally answer, and the mistake of the Solicitor in drawing the answer erroneously, are proven. What distinguishes it from the case decided by Chancellor Kent? In some respects, it is really a stronger case than that.

The case of Livesey vs. Wilson, 1 V. & B. 149, is nearer to this case than any I have seen; and is, of itself, sufficient authority for our judgment. In that case, the defendant, in answer to a bill for specific performance of a contract, admitted that he took possession of the whole property, in pursuance of the contract, but afterwards applied for leave, to put in a supplemental answer to limit the admission to part of the premises only.

Lord Eldon refused the amendment, using remarkable language, in substance as follows: "I will not grant the motion, unless the defendant will tell me, upon his oath, that when he swore to his original answer, he meant to swear in the sense in which he, by his application, desires to be permitted to swear." The amendment was refused, upon the ground that the defendant would not upon oath say, that he originally intended to swear, as he now desired to be permitted to swear. Now, this case is the very case required to be made by Lord Eldon. In that case the

Turner es. Rawson.

defendant desired to correct an admission-so also in this. In that, the Chancellor refused the amendment, because the defendant would not tell him upon oath, that he intended at first to swear, as he now desired to swear. In this case, the defendant comes into Court, and upon oath says, that when he first swore to his answer, he intended to swear as he now desires to

be permitted to swear. If Lord Eldon was presiding in this Court, he would, upon his own conditions, be compelled to allow this amendment. Upon this authority, (and there is none greater,) and upon principle, we allow it.

Let the judgment of the Court below be affirmed.

No. 44. CHARLES G. TURNER, plaintiff in error, vs. EDWARD E. RAWSON, defendant.

[1.] The 61st rule of practice, requiring in every application for a new trial, a a brief of the testimony in the cause to be filed by the party applying for such new trial under the revision and approval of the Court, is imperative, and upon failure to comply, the motion will be dismissed at the hearing.

Motion for new trial, in Pike Superior Court, decided by Judge FLOYD, February Term, 1848.

The defendant in error moved in the Court below, to dismiss, the rule nisi granted at a previous term, for the reason, that no brief of the testimony had been filed under the sanction of the Court, nor agreed upon by the parties. A brief of testimony was filed, and on the 21st of August, 1847, defendant in error "acknowledged notice of the brief of the testimony." The Court dismissed the rule nisi, and this decision is alleged to be errone

ous.

tiff.

ARNOLD, MARTIN, GREEN, and GIBSON & HAMMOND, for plain

ARNOLD, for the plaintiff in error, cited—

2 Kelly, 1. Burr. 390.

3 Ibid, 221.

Orr vs. Brown, et al.

Dudley, 47, 78. 2 Tidd, 910. 1 M. & S. 576. 1 Cowper, 597. 2 W. Bl. 1221. 1 Kelly, 463, 254. Prince, 421, 442.

BAILEY, for the defendant.

By the Court.-LUMPKIN, J. delivering the opinion.

[1.] This was a motion for a new trial in Pike Superior Court. It was made at the August term, 1847, and dismissed at the ensuing term, on account of the failure of the applicant to file a brief of the testimony, as required by the 61st rule of practice. It is conceded that no brief was filed under the revision and approval of the Court. It is contended, however, that a brief of the testimony was lodged in the Clerk's office, after having been submitted to the inspection of the opposite counsel. The record does not show that a brief of the whole testimony ever was filed. But even if it did, there being no evidence that it was agreed upon by the opposite counsel or approved by the Court, the motion was properly dismissed. Petty and others vs. Mahaffy, 3 Kelly, 217.*

*NOTE.-See also Charles Hartridge vs, D. & A. Wesson, 4 Ga. Repts. 101.

No. 45.-MATTHEW ORR, plaintiff in error, vs. REUBEN BROWN, et al. defendants.

[1.] Where a purchaser of a tract of !and at sheriff's sale, refused to comply with the terms of the sale, and the same was resold for less money, a Court of Equity will not entertain jurisdiction to compel a specific performance by the purchaser of the sale, at the instance of the defendant in execution, but will leave him to his remedy, provided by the Act of 1831.

[2.] Where a bill seeks to set aside a sheriff's sale, on the ground of fraud by the purchaser, and to enjoin the sheriff from making a title to him, some specific fraudulent conduct on the part of the purchaser must be charged; it is not sufficient to make a general allegation of fraud, but the bill must allege