
    [Lancaster,
    May 24, 1826.]
    HAIN and another against KALBACH, Administrator of BELL.
    IN ERROR.
    In a suit upon a bond, given for a pre-existing debt, due to the plaintiff by a third .person, parol evidence is not admissible to show, that at the time it was executed the obligee declared, that he would require nothing more than the interest to be paid during his life, and that at his death the bond should become null and void; unless the obligor was induced by such declarations to execute the bond.
    Error to Berks county.
    In the court below, it was an action of debt on a bond for two hundred pounds, brought by John Kalbdeh, administrator of John Bell, deceased, against Benjamin Hain and Elizabeth Shaeffer. The defendants pleaded payment, with leave to give the special matter in evidence, and gave notice that on the trial they should prove, that Leonard Shaeffer, the husband of Elizabeth Shaef-fer, died in bad or insolvent circumstances: That after his death, William Bell alleged that he was indebted to him, and requested the defendants to execute a bond to him for the gmount of the debt: "That he declared, he would requir'e nothing more to be paid on it than the interest which would accrue during his lifetime, and that after his death, the principal and interest of,the said bond should never be paid, but the said bond should become null and void: That in consequence of this declaration, the defendants were induced to execute the bond on which this suit is founded, and upon no other cause or.consideration whatever, and that the interest which accrued on the said bond, during the lifetime of the said William Bell, was paid to him.
    On the trial, the defendants proved that the bond in question was given in lieu of another bond, on which Leonard Shaeffer had in his lifetime borrowed money of William Bell, in which bond, the witness, who was examined touching this matter, and was a subscribing witness to the second bond, was surety: That at the time of Leonard Shaeffer1 s death, his circumstances were not, the witness believed, very good; nor were those of the witness so good, when the second bond was executed, as when the first was given. It was admitted that the second bond was executed at the request of William Bell.
    
    The defendants then offered to prove, under the notice of special matter, “ that, at the time of the execution and delivery of the said bond, the said William Bell alleged that he would require nothing more to be paid on it, than the interest which would accrue thereon during the lifetime of the said William Bell, and that after the death of the said William Bell the principal and interest on the said bond should never be paid, but that the bond should become null and void.”
    To the admission of this evidence, the counsel for the plaintiff objected, and the court sustained the objection; whereupon the defendants’ counsel excepted to their opinion.
    
      Hayes and Baird, for the plaintiffs in error.
    The question arising; upon the bill of exceptions in this case, is very analogous to that in Miller v. Henderson, 10 Serg. & Rawle, 290, in which it was held, that in a suit against a surety in a bond parol evidence might be given to show that he executed the bond under a declaration by the obligee, that it was mere matter of form, and he should never be called upon to pay it. It comes too within the principle of Field v. Biddle, 1 Yeates, 132,'2 Dolls I'll, S. C., Hill v. Ely, 5 Serg. & Rawle, 363, and many other cases, that parol evidence may be given to show fraud or mistake in a written instrument. It is'not necessary that the notice of special matter should expressly allege fraud. It is enough to give notice, ofthe.facts intended to be proved. No fraud, however, is alleged in Bell. As long as he lived he complied with his agreement, and it rested with his administrators to do the rest. The evidence given of Shaffer’s circumstances, though it did not come quite up to the notice, approached very near to it. Accompanied by this, the evidence offered ought to have gone to the jury, for as .much as it was worth.
    
      Buchanan and Biddle, for the defendant in error.
    The bond is payable to William Bell, his executors, administrators, or assigns, and the evidence was to contradict it, and convert it into an annuity for the life of the obligee. There was no offer to prove fraud, which distinguishes it from the case of Miller v. Henderson, which was expressly put, by the Chief Justice, upon the ground of fraud in inducing the obligor to sign the bond, through false representations and 'promises. The danger of permitting parol evidence is very great, and this, court has leaned strongly against it. The general rule is, that it is not admissible to contradict, add to, or alter a writing, and the rule is the same in equity as at law. 1 Phil. Ev. 423, 424, 427, 428, Peake, {Norris’s Ed.) 168. Fraud, it is true, forms an exception to the rule; and mistake also, properly understood, that is, mistake in drawing the instrument different from the instructions of the parties. But except in the cases of fraud .or mistake in drawing the instrument, parol evidence is inadmissible. Heagy v. Umberger, 10 Serg. & Rawle, 341. But the difficulty of proving mistake is so great, that there is no instance of a mistake being established which was denied by one of the parties. 2 Johns. Ch. Rep.-597. The evidence offered by the defendant is not conformable to his notice of special matter. The notice was, that it would be proved that the husband of the defendant Elizabeth Shaeffer, had died in bad or insolvent circumstances, but no such proof was made, or offered to be made; Nor have the defendants alleged fraud in William Bell, or that they were induced to execute the bond in consequence of his declarations that it should be void at his death. The promise offered to be proved, was without consideration and void. 1 Com. on Cont. S, 9, 10.
   The opinion of the court was delivered by

Gibson, J.

Had the defendants below offered to prove that they were induced to execute the bond in consequence of the representations of Bell, the plaintiffs’ intestate, that only the interest should be exacted during his life, and that the principal should not be called for after his death, the case would have fallen within the principle decided in Miller and Henderson; but in this particular it was entirely deficient. It is no answer to say, the jury might have believed from the intrinsic evidence of the transaction itself, that Bell’s promise was the moving consideration on which the defendants became personally liable for the debt of Leonard ShaeJ-fer, who died in doubtful circumstances. It may be so.' But we are to recollect, that evidence of this kind is always attended with a greater or a less degree of danger, and that sound policy requires it to be restricted to cases of clear and palpable fraud, where the evidence, if believed, will not leave the jury to grope for a case proper for relief. Were juries permitted to weigh probabilities in cases of this sort, there are few securities that would not be swept away by parol evidence of idle and extravagant expressions at the sealing and delivery. Where a fraud of this kind is alleged, the evidence in support of it must come fully, up to the mark, so as not to leave the conclusion to be drawn from it doubtful, taking the evidence to be true in fact. In this respect, it was deficient, and we are of opinion it was properly excluded.

Judgment affirmed.  