Martin vs. Atkinson. The facts necessary for the points adjudicated, are found in the opinion of the Court. ARNOLD, for plaintiff in error. FACTS.-Plaintiff filed his bill vs. defendant to August Term, 1845, of Pike Superior Court, alleging, among other things, · a purchase of a lot of land in Pike, by plaintiff, of defendant, and the giving of notes and a title to another lot of land in Dooly county, in payment thereof; and defendant by his answer, sworn to and filed on the 24th March, 1846, admitted these facts; and a replication was then filed to said answer, and afterwards, at the August term, 1846, a trial was had, and a decree rendered for the defendant, from which the plaintiff appealed, and three terms after the appeal entered, the defendant, at February term, 1848, comes and moves leave to amend his answer in this particular, alleging, as his excuse, that (though he knew the fact at the time of swearing his original answer, and told it to his solicitor's agent) his solicitor's agent deemed it unimportant, and giving no excuse for the long delay. Quere. Should the amendment be allowed? It is a general rule, that amendments of sworn bills and answers are to be allowed with great caution. Mit. Pl. 55, 325. 1 J. C. R. 434. 3 lb. 410. 6 Ib. 81. Amendments are never allowed in the answer itself, but only a supplemental answer on a special application therefor. 2 V. &B. 256. 10 Ves. 285, 401. And even this supplemental answer is admitted with great difficulty, if prejudicial to plaintiff. 2 V. & B. 256. 19 Ves. 631. And it must be to arrest a mistake of facts, which is probable of itself. 1 V. & B. 150. 2 Ibid, 163, 256. 4 Johns. Ch. R. 375. And no case can be found of amendment allowed on the ground of laches or misapprehension of the party defendant, himself. 19 Ves. 628. 4 J. C. R. 375. Amendments have been allowed in small matters, on an affidavit of surprise or mistake. .2 Mad. Ch. 376. And a motion to amend was refused, and this decision affirmed on appeal to the House of Lords, where the defendant having by answer consented to confirm an award made by her father, though the motion was accompanied by an affidavit, that her answer was prepared by her father, who had wronged her in the award, and that she never read the award. 2 Vern. 434. Martin es. Atkinson. From all the cases, we draw the general conclusion, that though amendments or answer, are in the discretion of the Court, this discretion is to be cautiously exercised in reason, and in conformity with he usual practice of the Court, and in confo rmity with established precedents. Ancient and uniform practice of the Court is as binding as positive order. 2 Kelly, 421. Mit. P.2 n. c. Our general rule is, that amendments are never allowed in material parts of an answer, except where there has been surprise or mistake of fact, and then only by a supplemental answer ordered on a motion therefor, accompanied by an affidavit, that when the original answer was put, the defendant did not know the circumstances on which he applies, or any other circumstances upon which he ought to have stated the fact otherwise, or that when he swore his original answer, he meant to swear in the same manuer he now asks to swear. 2 Mad. Ch. 376, 7, and passin. 4 Johns. Ch. R. 375. Thus the law stood for ages before our adopting Statute, and the only question which remains, is, have we any Statute or rule which alters this? There is no Statute of jeofails in Equity cases in Georgia, and the only rule of Court, bordering on this subject, is the concluding article of the 4th rule of Equity cases, which reads as follows: And the Judge shall have power to order such amendments as are usually made in open Court." Now, as for the time of making amendments. The general rule is, that irregularities and errors must be corrected at the first term after they are discovered and taking distinct steps afterwards, is a waiver of the irregularity. 2 J. C. R. 249. 1 lb. 191. G. M. Dudley's Rep. 47, and this rule applies as well in Equity as Law. After issue joined and publication passed, and witnesses examined it is too late, Mit. Pl. 55, 325. Then this amendment does not come up to any of the precedents, nor within the letter or spirit of any of the rules and is erroneous and should be disallowed. GREEN & CAUSEY, for defendant. By the Court.-NISBET, J. delivering the opinion. This application to amend the answer was made after replica tion filed-indeed after a decree had been rendered for the defendant, although there was no trial, the plaintiff being unprepa Martin vs. Atkinson. red for trial, confessed a judgment for the defendant. Upon the appeal, and after two continuances, the defendant, upon notice, moved the Court for leave to file a supplemental answer by way of amendment. The application was accompanied with the affidavit of the party, his solicitor, and a person by the name of Greene, which set forth the following facts: The defendant resides in the county of Pike, and his solicitor in the county of Crawford. The answer was drawn by the solicitor in the absence of the defendant, from notes of the facts taken by him. It was transmitted to a friend, not being a lawyer, with a request to read it to the defendant, correct it wherein he directed it to be corrected, procure his oath and file it in office. It was accordingly read to the defendant, who stated at the time, that one statement in it was erroneous, to wit: The statement, that a tract of land belonging to him, lying in the county of Dooly, was received from the complainant in payment for a tract of land sold him by the defendant, and that the truth was, that the Dooly, tract was taken by him in payment of other debts owing him by the complainant. The alteration was not then made, the person who read the answer to the defendant assuring him that it was not a material matter, and would not affect his legal rights, and farthermore assuring him that his counsel would amend the answer in that particular, when he came to Court. Under these circumstances, the oath was taken and the answer filed. The amendment sought to be made is in the particular, in relation to the Dooly tract of land. The defendant, desiring now to make it what he had said it ought to be at the beginning. It is conceded that the proposed amendment will be prejudicial to the complainant. The presiding Judge allowed the amendment, and the complainant excepted. [1.] It is argued that the replication being filed and the cause for a hearing on the appeal, the application to amend is too late. There appears to be no particular limit to the time within which an application to file a supplemental answer must be made. [2.] It may he made, and if allowable, will be allowed after replication has been filed. But not unless the cause is in such a state, that the plaintiff may be placed in the same situation he would have been in, had the answer been correct at first. Hence, application to amend has been refused, after the cause has been Martin vs. Atkinson. set down for a hearing. Dan. Ch. Pl. and Pr. 916, 917. Curling vs. Marquis of Townshend, 19 Vesey, 628, 631. Jackson vs. Parish, 1 Sim. 505. McDougal vs. Purier, 4 Russ. 486. Our practice, as to amendments, is scarcely so strict as the English. But as to time, we do not think that in England this application would be too late. The replication here was filed, but it does not appear that any order had been taken setting the cause down for a hearing. It was in that state, when the allowance of the amendment would not place the plaintiff in any worse condition than he would have been in, had the answer been correct at first. Particularly, since the Chancellor would permit such an amendment only upon such terms as would be equal and just. It is his duty to see to it, that the plaintiff is not surprised by the amend ment. Formerly, it was the practice to permit a party to amend his answer, by taking it off the file and correcting it, in case of mistake, or where new matter has come to his knowledge, since it was put in, or in case of surprise, or of fraud. 912. Story's Eq. Pl. secs. 896 to 901. Ch. R. 375. 1 Bland. 162. Smith vs. Dan. Pl. and Pr. Bowen vs. Cross, 4 Johns. Babcock, 3 Sumner, 583. 1 Bailey Eq. R. 375. 2 P. Williams, 424. Amb. 62. B. 186. 10 Vesey, 401. 1 Eq. Cas. Ab. 29. Lord Thurlow, however, changed the practice, not permitting the answer to be taken off the file, but allowing a supplemental answer to be filed, and by that course leaving to the parties, the effeet of what had been sworn before, with the explanation given by the supplement. 10 Vesey, 284. 8 Vesey, 79. 10 b. 401. 4 J. C. R. 375. 1 Barbour's Ch. Pr. 165, 6. 2 V. & B. 256. 1 Smith's Ch. Pr. 2 Am. Ed. 270. This practice continues, and is unquestionably best, for it insures justice between the parties, and holds the defendant still perfectly amenable to the criminal law, if he be guilty of perjury. Now an amendment by supplement, will be allowed to correct a mistake as to matter of fact, in the answer. Strange vs. Collins, 2 Vesey & B. 168. Taylor vs. Obee, 3 Pri. 83. Ridley vs. Obee, Wightw. 32. So also the rule is extended to other analagous cases, as where the defendant, at the time of putting in the original answer, was ignorant of a particular circumstance, he has been permitted to introduce that circumstance. Jackson vs. Parish, 1 Sim. 505. Tidswell vs. Bowyer, 7 Sim. 64. 9 Ib. 365. 2 Mer. 57. Martin vs. Atkinson. So where a defendent had wished to state a fact in his original answer, but was induced not to do it, by the mistaken advice of his solicitor, he was allowed to state it, by supplement. Punter, 4 Sim. 474. See also 4 J. C. R. 375. Nail vs. So where, by the misrepresentations of the plaintiff, the defendant was induced to admit certain securities against himself; he was permitted to correct the admission. Curling vs. Marquis of Townshend, 19 Vesey, 628. It is true, however, that in all cases where the amendment proposed to be made, is prejudicial to the plaintiff, it will be allowed, if at all allowed, with great caution—in the language of the books, with great difficulty. Indeed, all amendments to sworn bills or 'answers, are allowed with extreme caution. The reason is, that parties will not be permitted to experiment under oath upon the rights of their adversaries, and then evade the pains and penalties of perjury by amendments. The defendant must state what he expects to put upon the record, and the application must be accompanied with affidavits. Daniel's Plead. and Prac. 914. Edwards vs. McLeay, 2 V. & B. 256. Western Reserve Bank vs. Stryker, 1 Clarke, 380. V. & B. 149. 4 Sim. 54. 1 Vesey, 628, 631. 5 Beav. 432. 2 Ib. 236. 4 J. C. R. 375. [3.] From all of which we learn, that with great caution, and even difficulty, amendments by way of supplement, will be allowed in case of mistake, surprise, new matter and fraud; and in cases analagous to these cases, upon principle. No unvarying rule, however, obtains, which will embrace all cases. The question of amendment is addressed to the discretion of the Court. Each case must depend upon its peculiar merit or demerit. "The question always is applied to the discretion of the Court, in the particular instance." Per Lord Eldon, in Wells vs. Wood, 10 Vesey, 401. Amendments are allowed, because necessary to the ends' of justice. In applications, such as I am now considering, it is necessary that the defendant make such a case as that it shall appear to be due to general justice, that the record be altered. Daniel's Plead. & Prac. 915. In Wells vs. Wood, (ubi supra,) Lord Eldon says, “A defendant making this application, must make out such a case, that it shall appear due to general justice, to permit the issue to be altered." "There can be no doubt, (says Ch. Kent,) that the ap |