#### Russell *v.*Conn.

Though the allowance of an amendment of the pleadings by the judge at circuit is discretionary, the refusal to exercise that discretion on the ground of want of power, when the power exists, is error in law, for which a new trial will be granted.

Upon the trial of an ejectment there was a variance between the complaint and the evidence in the description of the land. They concurred in essential particulars, except that the conterminous proprietor on the west was in the complaint stated to be on the east. The judge refused the plaintiff’s application to amend, holding that he had not the power to permit it, and nonsuited him: Held, a mere variance, and not an entire failure of proof.

Appeal from the Supreme Court. Ej ectment for a part of lot Mo. 25, in a tract of land know as Legg’s patent, in Essex county. On the trial before the late Mr. Justice Galt, the plaintiff’s evidence shewed the defendant in possession of a part of lot Mo. 25, differing from that described in the complaint, in that it was hounded on the west by land in the possession of one Boot, instead of being thus bounded on the east and on the west by lot Mo. 26, as described in the complaint. The plaintiff then proposed to amend the complaint by describing the ■ land as being the east part of lot Mo. 25, and hounded west oy Boot’s possession, but the defendant objected, insisting that it would be an entire change of the cause of action, and the judge decided that the amendment was not such a one as the law would allow him to make. To which decision and a non *82suit thereupon granted, the defendant excepted. A motion for a new trial, leave to apply for which at general term had been reserved, having been denied, the plaintiff appealed to this court.

*John K. Porter,*for the appellant.

*John F. Havens,*for the respondent.

Selden, J.

If the judge was right in assuming that this was a case where the cause of action was unproved in its entire scope and meaning, within the provision of section 170 of the Code, he was of course right in refusing to permit the plaintiff to amend, and in ordering him to be - nonsuited. But was this -such a case ? The complaint described a strip of land upon the west side of lot Ho. 25, in Legg’s patent, bounded north by Lot Ho. 21; south by the south line of the patent; east by part of the same lot, owned by Lucius - A. Foot, and west by lot Ho. 24, alleging this land to be in the possession of the defendant.

Upon the trial the defendant was shown to be in possession of a strip upon the east side of lot Ho. 25, instead of the west. The title shown by the plaintiff would cover either parcel. Under these circumstances the plaintiff applied to tho court for leave to amend Ms complaint so as to conform to the case made by the proof; and this the judge refused," upon the specific ground that the amendment proposed was one he had no power to allow.

On comparing the complaint with the proof it appears that much of the description in the former is-correct, as applied to the parcel "of land of wMch the defendant was shown to be id possession. The number of the lot, the patent of which it was a part, the northern and southern boundaries were all correct. The error was confined to the eastern and western boundaries alone. Can this be said to be a case unproved in its entire scope, when the proof corresponds with the complaint in a majority of the particulars constituting the description. The complaint was right as to the patent; right as to *83the number of the lot; right as to two out of the four sides of the lot, but wrong as to the other two sides. It was clearly a mere case of variance, and not one of a cause of action wholly unproved. The defendant was shown to be in possession of land to which the plaintiff proved title, but the plaintiff had mis-described the land in some respects.

It is unnecessary to decide whether this variance should have been disregarded by the judge, unless the defendant made the affidavit required by the Code; because if it be assumed that an amendment was indispensable, the judge clearly erred in refusing to allow it. It is true that the allowance of an amendment, where one is required, is the exercise of a discretionary power, but it is erroneous to refuse to exercise that discretion in a proper case. The case of *The King*v. *The Justices of Kent*(14 *East,*395), illustrates the principle. There an application had been made to the Justices of Kent,' by certain millers of that county, requesting them to fix the rate of wages to be paid to said millers, under an old statute of Queen Elizabeth. The justices refused the application on the ground that they had no power to act upon it. The Court of Kings Bench granted a mandamus, on the ground, that although it was discretionary with the justices to fix a rate, as requested, or not, yet that it was erroneous for them to refuse to do so, for the reason that they had no authority: the court holding that while it could not interfere with the discretion of the justices when exercised, it could nevertheless correct the mistake into which they had fallen as to their power.

The principle adopted in that case is applicable to this. Although the discretion of the court below when exercised cannot be reached, yet the question of power is one which depends upon strict legal principles, and may therefore be reviewed. The judgment of the Supreme Court should therefore be reversed, and there should be a new trial, with costs to abide the event.

Allbit, J., did not sit in the case; all the other judges concurring,

Judgment reversed, and new trial ordered.