nals to remain on file, and annexing a copy to the commission, as directed by the order of court. There is no pretence that the copy was imperfect, or differed in any respect from the original interrogatories examined and acquiesced in by the counsel for the appellants.

The 3d objection is, that the certificate of the justice of the peace, before whom the deposition was taken, does not state that it was reduced to writing in his presence, as required by the statute.

The justice states in his certificate, "That the examination, re sponses and statements of said deponent was reduced to writing in my, and by the said deponent sworn to and subscribed in my presence, at the time and place aforesaid," etc.

It is manifest that the want of the word "presence," after the word "my," where it first occurs in the certificate, was a mere clerical omission by the justice; and taking the whole certificate together, it is evident that he meant to certify that the deposition was reduced to writing in his presence.

The question in regard to the reading of letters of Stone, etc., in evidence upon the hearing, which were not made exhibits to the answer, but proven by depositions taken upon notice, was decided in Trapnall adx. vs. Byrd's ad., 22 Ark., 10.

To recur again to the merits of the cause, we have found nothing in the record to make the impression that Fowler, in making the agreement with Stone to transfer to him the fruits of the suit against Folsom, for Ben and his hire, abused the confidential relation existing between them as attorney and client, or that the agreement was unreasonable or unfair, considering the indebtedness of Stone to Fowler, and the services to be performed by him in that suit.

The decree of the court below, dismissing the bill, must be affirmed.

Mr. Justice FAIRCHILD did not sit in this case.

TERM, 1861.]

Patterson vs. Fowler's exr.

PATTERSON VS. FOWLER'S EXR.

Without attempting to deduce, from the authorities, any general and fixed rule, to be applied in all cases, as to what delay of the execution creditor to sue out process to enforce a levy upon land by a sale, will displace the lien, and let in intervening incumbrances, it is sufficient to decide, upon the facts of this case-the judgment lien being lost by lapse of time-that, by a delay of nearly four years between the return of the execution, under which the lands were levied on, and suing out the execution under which the lands were sold, during all which time no step was taken to enforce the levy, and no excuse given for the delay, the lien of the levy is displaced, as against the intervening rights of a more diligent creditor.

To allow a new case to be made by an amended bill-setting up a new and distinct title from that alleged and relied on in the original bill-after the parties had been litigating for more than eight years upon another title, and after the cause was at issue and set for hearing, would be extending the privilege of amendments beyond what is warranted by the established rules of pleading and practice, and setting a precedent that might result in much mischief.

Appeal from Independence Circuit Court in Chancery.

Hon. WILLIAM C. BEVENS, Circuit Judge.

FAIRCHILD, for appellant.

Whether Fowler's or Patterson's purchase shall hold the property, is a question of mere legal priority. Any right that Fowler acquired at the marshal's sale of 25th January, 1847, was a legal right, and the same remark is to be made of the sheriff's sale to Patterson. Not Fowler, nor his assignee, Bertrand, has any equity that can make his title any stronger in this court, than it would be in a court at law, in an action of ejectment.

The judgment in the federal court upon which the bill relies, was rendered the 10th August, 1840, an execution issued upon the 26th of the same month; another execution issued upon the

4th of February, 1843, under which the levy was made 20th of March ensuing; then a venditioni exponas was run upon the 7th of December, 1846, under which the sale of 26th January, 1847, was made.

That is the whole case made by the original bill.

The judgment, not being alleged to have been revived by scire facias, was a lien upon the lands in controversy, for three years and no more. Trapnall vs. Richardson, 13 Ark., 543; Pettit vs. Johnson, 15 Ark., 59; Slocomb vs. Blackburn, 18 Ark., 315. And although the levy was made within three years from the time judgment was given, the judgment lien was not thereby prolonged beyond its statutory term of three years. Trapnall vs. Richardson, 13 Ark., 552–557; Pettit vs. Johnson, 15 Ark., 59; Lawson vs. Jordan, 19 Ark., 303. The levy was made upon the 20th of March, 1843, and then a specific lien, but an execution lien, attached to the lands in controversy, and the question here to be decided is, how long shall that lien be held superior to the other after accruing liens, and without any attempt to enforce it by subsequent process? Here, then, arises the precise question with regard to an execution lien that this court put in Trapnall vs. Richardson, 13 Ark., 553, respecting a judgment lien, where it says, "though the enquiry would arise, if the levy on "land has the same effect thus to continue the lien, how long will "the plaintiff have, after the expiration of his judgment lien, to "enforce a dormant levy by sale under execution, and make it "relate back to and connect with the lien."

This court, in the State Bank vs. Etter, 15 Ark., 274, held that, our statute being silent with regard to the continuance of execution liens, "the court must necessarily determine, from delay "and other circumstances, whether the lien has been waived or "abandoned." And in that case a delay of two years and a half after the levy, with the other circumstances of the case, was adjudged to displace the lien, as against rights that were afterwards acquired. See Slocomb vs. Blackburn, 18 Ark., 315.

An execution is not more potent to bind property, than the judgment on which it is founded, except it be made so by law;

no good reason can be adduced to maintain that the lien of a levy should have longer life than a judgment lien. In the last reported decision of this court upon this subject, it is expressly decided, that a sale that is not upheld by a lien, so as to carry the title back to the judgment, only gives title from the date of the execution coming to the hands of the officer, notwithstanding a previous levy. And it provides exactly for Patterson, in saying, that "in such case, a junior judgment with the lien would have priority over one without, but of older date." Lawson vs. Johnson, 19 Ark. 303.

From authority, and from reason, the necessary conclusion is, that before the issuance of the venditioni exponas of 7th December, 1846, the lien of the levy of 20th March, 1843, had been discharged, so as to let in intervening liens.

The amended bill cannot be sustained, because it presents a new, a different case from that presented in the original bill. Such is not the office of an amendment. It may correct imperfect statements in the original bill, by stating its allegations in another form, so as better to meet the case that is to be established by testimony, or to obtain discovery from a defendant more satisfactorily; may withdraw admissions; perhaps may contradict what are alleged as facts in the original bill; may make new allegations tending to support the claim already made; may prefer a case, so that counting it and the original bill as one, that one may have a double aspect, the alternative relief, to be consistent with and founded upon the whole case so made up, and not inconsistent with the object and scope of the original bill; may make new parties; and generally may allege whatever is necessary for a full enquiry into the facts pertaining to the support of the plantiff's claim, and into those relied upon to defend against it; but all amendments must result, or must aim to result, in maintaining or modifying the very case of the original bill, and cannot be the foundation on which to build an entirely different case. Story's Eq. Pl. 884; Lube's Eq. Pl. 87, note; Dodd vs. Astor, 2 Barb. Ch. R. 395;

Crery vs. Beaven, 13 Sim. 354; Walford vs. Pemburton, ib. 76; Lyon vs. Talmadge, 1 John ch. 188.

But if the subject matter of the amendment was proper for an amended bill at a proper stage of the case, this amended bill should not have been filed after the case was at issue and set for hearing, and therefore was illegally filed.

In the English practice, and so it was in New York, an amended bill may be filed until witnesses have been examined or proofs taken. But in that practice evidence is taken and publication of it passed, before the case is for hearing. Dan. Ch. Pr. Ch. XXI, Eng. Ed. p. 602, 603. This is after the issues are formed; and generally, the proper time for amendment is before replication. Story Eq. Pl. sec. 886; 1 Hoff. Ch. Pr. 284; Lube's Eq. Pl. 189.

Under our practice the cause stands for trial at the next term after it is at issue, that is after replication is filed; and the proper rule is, without regard to witnesses having been examined, that an amended bill can be filed, only before the case is at issue.

I have not been able to find in the books of practice, or in the reports, an instance of amendments being allowed to be made to a bill after replication, without the replication being withdrawn. And to obtain the leave, the party should also show good reason why the amendment was not made before replication was filed, or issue formed. Story Eq. Pl. sec. 887; 1 Hoff. Ch. Pr. 274, 286'; Colclough vs. Evans, 4 Simons, 76; Thorn vs. Germond, 4 Jhs. Ch. 363; Lube Eq. Pl. 89.

STILLWELL & WOODRUFF, for appellee.

The fi. fa., under which Fowler acquired the title set up in the original bill, issued and was levied while the lien of the judgment was alive: and the sale was on the 25th January, 1847, under a ven. ex. issued in December, 1846; hence there was a continuous lien upon the land from the date of the judg ment till the date of the sale; and the title was, doubtless, good against Stone, and also against Patterson, unless the delay to