
    * Josiah Dwight versus Asahel Pomeroy, Joseph Lyman, Spencer Whiting, Nathaniel Edwards, Rufus Smith, and James Lloyd.
    The rules of evidence [in general] are the same in courts of equity, as [in] those of common law. This Court therefore, when sitting as a court of equity under the statute of 1817, c. 87, will not receive parole evidence, tending to prove an agreement, different from one made by the same parties in writing under seal; [except in cases of fraud, or where the specific performance of an agreement is resisted on the ground that it does not contain the true agree ment of the parties, or the whole of it.—Ed.]
    This was a bill in equity, in which the plaintiff alleges that William Edwards, on the 8th of November, 1813, was indebted to him in the sum of 7500 dollars, to secure which the said W. E. had made an assignment of so much of his share of the profits of the Hampshire Leather Manufactory, as would amount to the sum of 10,000 dollars, to be paid out of the first dividends, and authorizing the plaintiff to give proper receipts, &c.;—that the said W. E., on the 25th of October, 1815, being indebted to the said Pomeroy in the sum of 18,400 dollars, to John Tappan 6400 dollars, to the said N. Edwards and R. Smith 4000 dollars, and to the said Lloyd 4000 dollars; for securing their said debts made to them respectively assignments of his claims upon the said Hampshire Leather Manufactory, and disputes having arisen between the plaintiff and the said other creditors respecting their several claims, and then priority therein, for preventing whereof, for obtaining satisfaction, and for ascertaining the amount of the said W. E.’s claim on the said manufactory, and the several proportions due to said assignees ; it was on the day last aforesaid agreed by and between the plaintiff and the said assignees, that the said W. E. should make and execute a deed of trust to the defendants Pomeroy, Lyman, and Whiting, assigning to them all his claims and demands upon the said manufactory, and also the said original contract; in trust, after paying all costs and charges, that the plaintiff should receive and be paid, absolutely and unconditionally, in full satisfaction of his claim of 7500 dollars, the sum of 5500, and no more ; the residue to be paid to the said other creditors in proportion to their respective debts, computing the said Pomeroy’s claim at 18,400 dollars; [ * 304 ] and in case said Tappan and Lloyd should * not agree to "said trust, the said residue, after payment of the charges, and also the said 5500 dollars to the plaintiff and the said other creditors the amount of their claims, to be paid to the said W. E.;—that the said Pomeroy being in urgent want of money, and it being uncertain what sum was to be received, it was agreed that the trustees might pay over lo him 9120 dollars out of the first moneys received, upon condition, however, that the plaintiff should receive 5500 dollars out of the net proceeds, and that the residue, including the said 9120 dollars, should be divided ratably among the creditors other than the plaintiff; and all former assignments were to be can-celled ; that on the same day the said W. E. made and executed a deed of assignment to the said Pomeroy, Lyman, and Whiting, upon the several trusts before mentioned ;—that the said Tappan and Lloyd not being present, it was provided that, if they neglected for twenty days after notice to accede to the said deed of trust, the sums due to them respectively should be paid to the other creditors, &e.; that the said Pomeroy, Lyman, and Whiting, re ceived said deed, and that the plaintiff, relying upon their faithful performance of the said trust, gave up to be cancelled his said first-mentioned assignment; the said Lloyd signifying his assent within the twenty days, and the said Tappan neglecting so to do; that said trustees have received divers large sums of money, amounting to 10,000 dollars, by the conveyance to them of certain tan-works in Chester and Cummington, purporting to be for the consideration of 16,111 dollars, 12 cents; that they have converted the same into money, have discharged all claims and demands of the said W. E. against the said H. L. Manufactory, and from the proceeds, after paying costs and charges, have received more than sufficient to pay the plaintiff 5500 dollars, although he is ignorant of the precise amount so received by them; that the plaintiff has often requested the said trustees to account for the said proceeds, and to pay the said sum to him ; and he is advised and humbly insists that by the * said deed of trust, he is equitably entitled [ * 305 ] to receive that sum, if so much has been by them received, &c.; and that, in case said deed, as it was executed, cannot be so construed, which he does not admit, it was not made in conformity to said agreement, but is so made by accident and mistake, and ought to be made and carried into effect according to the said agreement, and not otherwise; that the said Lyman and Whiting, combining with the said Pomeroy, N. Edwards, Smith, and Lloyd, and others unknown, to defraud the plaintiff, refuse to render him any account of what they have received, &c., and to pay over to him said sum of 5500 dollars, or any part thereof; sometimes alleging that they have not received more than 9120 dollars, and that the whole ought to be paid to said Pomeroy, and by him accounted for to the others; and at other times pretending that they are willing to do what is right, but are holden to pay the same to said Pomeroy; whereas in truth they have received more than sufficient to pay the plaintiff 5500 dollars, and he agreed to give up his whole claim to receive that sum, and the said other creditors agreed to his receiving that sum absolutely, and to run their risk, &c., all which was well known to the said W. E. and to the defendants, at the time of máking said deed of trust, and was so understood by the defendants long afterwards; who, after finding what was due., urged the plaintiff to give up part of his claim, alleging that he would receive by far the greater part of what should be realized; all which is contrary to right, equity, &c.
    The plaintiff, therefore, having no adequate, plain, and complete remedy at law, to the end that the defendants may make true and perfect answer, &c., and particularly that they may fully set forth the said agreement, &c., and whether it was not agreed and understood by the parties and the said trustees, that the plaintiff should give up his claim against the said W. E. and receive a certain fixed sum, and the other creditors to receive in proportion to their respective debts; and that the said Pomeroy, Lyman, * and Whiting, may set out the said deed of assign- [ * 306 ] ment, &c., and may also declare what sums they have received, &c.; also that the said trustees may declare on oath whether, in a conversation held with the plaintiff at Boston, in December, 1817, to induce him to give up a part of the said 5500 dollars, they did not state to him that, unless he did so, there would be little or nothing left for the other creditors, and may set out the import of such conversation ; that in case it should appear that the deed of trust aforesaid was not made pursuant to the said agree ment, &c., the Court here would cause such mistake to be rectified; and that in case, as he confidently trusts, it shall be found that the deed was made in conformity with the agreement, the trustees may pay over to him, &c., and that he may have such other relief as shall be agreeable to equity, &c.
    The defendants made several answers, from some of which it appeared that W. E., previously to making the deed of trust of the date of October 25th, 1815, mentioned in the plaintiff’s bill, had made a conveyance to the plaintiff, and another to Pomeroy, of his claims upon the Hampshire Leather Manufactory, for securing to them their respective debts; and some question existed between the two creditors, as to which had the legal priority. When, however, the said deed of trust was executed, those prior conveyances were cancelled. The defendants disclaimed all knowledge of the agreement stated by the plaintiff, that he was to be first paid 5500 dollars absolutely, and without deduction, out of the first proceeds of the property conveyed. The plaintiff, however, produced evidence tending to establish that fact, and to show that the provision was omitted by mistake of the scrivener who drew the deed. It seemed, however, that the question, whether the plaintiff should be first paid the sum above-mentioned, or the defendant Pomeroy should first receive his 9120 dollars, was not at the time of the negotiation considered as of great weight, it being then the opinion of all the parties, that the proceeds of the property conveyed in trust would greatly exceed the aggregate of the two sums. [ * 307 ] *The said deed of trust, which is set forth in the answer of one of the defendants, after reciting that the defendant Pomeroy had endorsed sundry promissory notes made by W. Edwards payable at several banks, amounting in the whole to the sum of 27,100 dollars; that the said W. E. was indebted to John Tappan in the sum of 6400 dollars, and to the defendant Lloyd in the sum of 4000 dollars; and that the defendants Edwards and Smith were sureties for the said W. E. on a note made to David Hinckley, the amount of which is not mentioned; also reciting that it was proposed, for the security of the said Pomeroy, Dwight, Tappan, N. Edwards &f Smith, and Lloyd, that an assignment of the contract of the said W. E. with the Hampshire Leather Manufactory, and all the rights, benefits, and advantages, accruing to the said W. E., under and by virtue thereof, should be made to the defendants Pomeroy, Lyman, and Whiting, for the benefit of the said Pomeroy and others, in the manner thereafter expressed and provided. After these recitals, the deed purports a conveyance to the said three defendants of all the said W. Edwards’s right and interest in the Hampshire Leather Manufactory, and in his contract with the same:—“ To have and to hold the same to them, the said Asahel, Joseph, and Spencer, the survivors or survivor of them, and their respective heirs, executors, administrators, and assigns, and to their use forever; upon the trusts nevertheless, and for the purposes hereinafter expressed ; that is to say, in trust as soon as conveniently may be, by all legal means to demand, recover, and receive of the Hampshire Leather Manufactory, all the lands, chattels, profits, benefits, and advantages, of every name and nature, which the said William may be entitled to claim under his contract with said corporation; and to pay and apply the same, after first converting the same into money in such manner as they shall think fit; First, to discharge all costs and expenses touching the recovery, disposal and distribution of said property ; and after the payment of said costs and * expenses, then, secondly, in [ * 308 ] trust, as to all the said William is entitled to claim under his said contract as his share of the profits, to pay to the said Asahei, Pomeroy, out of the first moneys received, the sum of 9120 dollars, under the terms hereinafter mentioned; and after the payments aforesaid, then in trust, thirdly, to pay to the said Josiah Dwight, absolutely, and without, condition, and in full of his share of the proceeds of this assignment, the sum of 5500 dollars; and after the payments aforesaid, then in trust, fourthly, to apply the residue of said profits to the payment of the claims of the said John Tap pan, Nathaniel Edwards, Rufus Smith, and James Lloyd, according to their ratable share thereof, estimating the claim of the said Pomeroy at the sum of 18,400 dollars; it being understood that if, upon the final settlement of the concern, it shall be found that the said Pomeroy, or the said Tappan, Edwards, Smith, or Lloyd, or either of them, shall have received from the proceeds of the assignment more than his or their ratable proportion thereof, estimating the said Pomeroy’s claim at the sum of 18,400 dollars, then the said party or parties so receiving shall refund to the said Pomeroy, Lyman, and Whiting, so much of the sum or sums so as aforesaid by him or them received, as shall leave him or them, his or their ratable proportion only of said profits. And if any balance shall be due from said corporation to said William, upon said William’s tanning account, after first paying thereout to William Hubbard of Cummington the balance due him from said William Edwards for tanning, supposed to be about the sum of 2600 dollars; then in trust, fifthly, to pay the said balance, together with the residue of said profits, after having first paid out of the said balance and residue the said sum of 5500 dollars, to said Dwight, and having also first fully satisfied the said claims of the said Pomeroy, Tappan, 
      
      Edwards &/• Smith, and Lloyd, to the said William Edwards, his executors, administrators, or assigns.” The next article gives to the trustees power to ask, [ * 309 ] * demand, &c., to appoint attorneys under them, to execute discharges, &c. &c. Then provision is made for the said Tappan and Lloyd to accede to the said assignment within twenty days after notice; otherwise the sum or sums, to which they would be entitled, to be paid to the said Pomeroy, Smith Sf Edwards, Tappan, or Lloyd, as the case may be, according to their respective claims aforesaid. The concluding article provides that all former assignments, to such as accede to this assignment, shall be rendered null and void.
    The plaintiff made a general replication to the several answers of the defendants.
    Written arguments were furnished the Court by the counsel for the plaintiff, and also by the counsel for the defendant Pomeroy; a brief abstract of which is all that can here be given.
    
      Bliss and Lincoln, for the plaintiff,
    contended first that, according to the sound construction of the deed of trust, he was entitled to the whole sum of 5500 dollars, absolutely, and without regard to the claims of the other creditors. They insisted that the true construction was that, after paying the costs of the trust, 9120 dollars was to be advanced to Pomeroy; but this was to be subject to the terms, that the plaintiff was to have 5500 dollars absolutely and without condition, and that he should in no event have any thing more; but that this sum was to discharge his claim. As, however, this part of the argument involved no question of law of general application, it is unnecessary to make even an abridgment of it.
    If, however, the deed would not warrant the construction which they gave to it, they contended that there had been a gross and palpable mistake, and that the plain and acknowledged principles of equity jurisdiction would authorize the interference of the Court, according to the prayer of the bill. Accident or mistake is one of the three great heads of chancery jurisdiction  ; and this Court has jurisdiction in such a case, under the statute of 1817, [ * 310 ] c. 87. This #is a case of trust arising under a deed. The plaintiff claims under that deed, and he says he is entitled, as all the parties meant the deed should have been made, and as, according to chancery principles, it will be construed to have been in fact made. Whether the trust be declared expressly by the deed, or result from established principles, it makes no difference ; the Court has as clear jurisdiction in the one case as in ibe other. Cases have occurred in which a man takes a deed in the name of a third person, who, if he assent to the deed, will hold in trust for the purchaser. The Court will have as complete jurisdiction, where the consideration is not mentioned as paid by the purchaser, as where it is expressly mentioned. Both will be cases of trust under a deed. The same is the rule where the deed is made different from the agreement, through the fraud of the parties In addition to the general principle, boni judiéis est ampliare juris dictionem, in the present case the subject is avowedly a deed of trust; and it cannot be decided, by any adequate proceedings at law, for whom or to what amount the trust is.
    If, then, the plaintiff shows a mistake, he is entitled to relief Courts of equity have equal jurisdiction to relieve, in respect of a plain mistake in contracts in writing, as against frauds in contracts; so that, if reduced to writing contrary to the intent of the parties, upon proper proof they will be rectified .
    The head of reforming instruments in writing frequently occurs in chancery, and there are very many instances of its being exercised. A few cases illustrating the case in hearing will be cited The general principles, upon which equity relieves, is that it considers what ought to be done, as in fact done; and the retaining of an advantage obtained by mistake, is as much a fraud after the mistake is known, as if there had been an original fraud.
    The first cases we have found on this point were in 1681. Where the husband released through fear of cost, the release was set aside . The same doctrine was holden; *but [ * 311 ] the relief was refused, as the conveyance was voluntary .
    The mistake in the last case was in enumerating the particulars of the land. Parole proof was admitted to show a mistake in a surrender, either in the land or the uses  ; that a feme covert surrendered the whole, though the surrender and admission were of a moiety only . In Joynes vs. Statham 
      , a bill to carry into effect an agreement for a lease signed by the defendant, the lessor. The plaintiff thereby agreed to pay £9; the defendant insisted that it should have been written that it was to be free and clear of taxes. Lord Hardwicke admitted parole proof, and said, it the defendant had been plaintiff, and had brought his bill, he could not see why he might not have set forth and proved the mistake. This case has an important bearing upon the case at bar; and Lord Hardwicke’s authority in chancery cannot be easily shaken.
    Where instruments are false, they may be set aside as fraudulent; but when incorrect in a matter that shows pure mistake, ignorance, or accident, a court of equity will reform them . Cases showing this principle are numerous, though in some of them the relief was refused, the proof being insufficient; but in all of them it is clearly admitted that the proof must be by parole. It is not perceived that the kind of instrument was at all regarded. It may, perhaps, be thought that the Court more freely interfered in cases peculiarly of chancery jurisdiction ; and the deed here, being a trust deed, is as much so as any thing can be; courts of law paying no regard to trusts.
    A devise was of a debt due from one Shaw; parole proof given to show that a debt from Beck was intended . A mistake rectified in a marriage settlement, though verbatim according to articles . Articles of agreement, and a mistake alleged as to an allowance to be made, and parole proof admitted. Lord Hardwicke inquires, how mistakes can be proved, except by [ * 312 ] parole . In Bishop *vs. Church 
      , parole proof was given, that joint bonds should have been joint and several; and there are a great number similar to it, from that time to this . So in regard to a policy of insurance on a ship warranted an Ostend ship, the plaintiff’s bill stated a mistake; Lord Hardwicke held that the court could relieve, but was not satisfied with the proof . The same principle was admitted in Harrison vs. Gardner 
      , in the case of articles of agreement, and a variance from the agreement. In Pitcairn vs. Ogbourne 
      , before Lord Hardwicke, parole evidence was admitted to show that a bond on marriage, which was for £150, should be for £100, but the agreement being underhand and sinister, the bill was dismissed ; and in The South Sea Company vs. D’Olliffe, cited in the last case, the agreement then stood that notice should be given in six months; but it should have been in three months. The plaintiff was relieved against it. This latter case strongly resembles the case in hearing.
    
      The Court will reform a deed made under a previous agreemem, so as to make it conform thereto . A settlement was reformed against the heir, in favor of younger children, by a letter written by the mother, though the answer did not admit it . The husband having owned a mistake in a settlement, a decree made conformed to it . An agreement between uncle and nephew set aside on the ground of surprise . Parole proof may be received, that a deed absolute was meant to have been a mortgage. But there must be no loches ; for after long delay it will be refused . Parole proof from the solicitor, to show a mistake in the agreement, admitted .
    There are two or three cases, which, as we understand our case, do not militate with the doctrine we contend for; but confirm or admit it. The first is the case between The Marquis Townsend &/■ Stansgroom 
      . The marquis’s bill stated an agreement for a lease; but that there was an agreement to deduct 25 acres, which was not inserted *in the written agree- [ * 313 ] ment. Stansgroom,, in his answer, expressly denied such an agreement; and by his own bill prayed specific performance of the agreement as written. Spearing, the marquis’s agent, swore to the agreement; but it being positively denied in the answer, and there being but one witness, so that it was merely oath against oath, Lord Chancellor Eldon, while he agreed that a mistake might be proved, dismissed the marquis’s bill, upon acknowledged principles of equity; and also dismissed Stansgroom’s bill as unjust. We shall show that, although this case is good law, our case differs in two particulars: we have more than one witness, and the defendants do not positively deny the agreement.
    In Lord Irnham vs. Child 
      , before Lord Thurlow, the bill stated that an annuity was granted, and that it was agreed that it should be redeemable; but the clause was omitted by agreement, lest it should make the transaction usurious. Parole proof was offered and rejected; for there was neither fraud nor mistake; except a mistake of the law which is no foundation for relief, either at law or equity. We admit the correctness of this decision.
    Upon a treaty of marriage, articles of agreement were made. The plaintiff alleged that she had no notice of the encumbrances upon the estate. Parole evidence was offered and received, to show that she had notice. Lord Thwrlow said, as to its effect, it must be independent of the construction of the articles. The evidence was holden insufficient to bind the plaintiff . We admit that the evidence is not to affect the construction of the instrument, and agree that it must be full and clear.
    Upon the point, whether parole evidence can be received, in addition to the cases already cited, we refer the Court to the cases in which parole evidence has been admitted, to show that the executor is not entitled to the residuum . So in favor of the executor, and to exclude the next of kin . [ * 314 ] * Another very numerous class of cases are those which respect legacies; some to show that they are, or are not, cumulative; some to show that they are in discharge of a precedent debt; some to show that there has been an ademption of the legacy .
    A class of cases still more nearly analogous to that under con sideration are those of trusts, in which parole evidence may be given. If a man purchase an estate in the name of another, who is a stranger, the grantee, who is the nominal purchaser, will be a trustee for the person who paid. But if the purchase be in the name of a wife or child, it shall be taken to be an advancement; and it may be proved from minutes by the holder, or his answer, or papers left at his death . In case of a child, where an advancement is proved, or previous declarations, it will not be an advancement . So a vendor conveying his estate, without receiving the consideration, will have a lien upon it against the vendee, and all under him with notice ; although the consideration is expressed to be paid, and a receipt endorsed .
    So if the purchaser pay before he has a deed . If a man be bound to locate land for another, and do it in his own name, he is a trustee for his principal . So if an executor or guardian renew a lease in his own name .
    There are two late cases in the state of New York, which we think full to the point. The first is Gillespie & Ux. vs. Moore 
      , in which Chancellor Kent, in his most masterly manner, after having examined all the cases, comes to the conclusion that equity will relieve plaintiff or defendant, when there is a mistake in a deed; and parole evidence is admissible where the defendant denies the mistake. But the evidence must be clear and full; and, in the case he then had before him, he decreed relief; and that in a case peculiarly subject to the jurisdiction of a court *of [ * 315 ] law, relating to the extent of a conveyance of land. The other is the case of Lyman vs. United Insurance Company 
      , in error from the decree of the chancellor, in the case reported in 2 Johns. Cha. Rep. 630, Chief Justice Spencer says that, if it can be shown that fraud or mistake has intervened in a written contract, a court of equity may amend it conformably to the intent of the parties ; and he fully and explicitly adopts the opinion of the chancellor, in the case of Gillespie vs. Moore. A mistake must generally be proved aliunde. In that case the evidence was not satisfactory, that there had been a mistake.
    We freely admit that the authorities, in our own reports, in those of England, and of New York, on this subject at law, are very numerous. But we do not admit that the authorities in courts of law are contrary to our claim ; but they cannot, consistently with established principles, afford us adequate relief. This arises partly from the nature of the subject, that of trusts being unknown to the common law; but principally from the forms of proceeding and rules of evidence being such, that we cannot get at the proof in a court of law ; and we think the masterly reasoning of Lord Redesdale quite satisfactory on this head .
    The counsel for the plaintiff, then (after quoting the opinion of Chancellor Kent, in the case of Gillespie vs. Moore, that the answers of the defendants are to be taken into consideration, but are not conclusive), go into a critical examination of the answers of the several defendants; and thence argue, as well as from the evidence in the case, that the agreement was that the plaintiff should receive 5500 dollars from the first proceeds of the trust fund, in full of his demand against Edwards, absolutely, and without any condition whatever, if the proceeds amounted to that sum. In conclusion, they say, that if the deed, as it was written, will not bear the construction they contend'for, there is a mistake plainly proved by incontrovertible testimony, and that, on this ground, they are clearly entitled to have the prayer of their bill granted. [ * 316 ] * Davis, solicitor-general, and Howe, for the defendant Pomeroy, contended, at some length, that from the true and necessary construction of the deed, the plaintiff was not to receive his sum of 5500 dollars, until after there should have been paid to Pomeroy the sum of 9120 dollars; and they opposed the admission of the evidence offered by the plaintiff, upon the follow ing grounds and authorities.
    It is a general rule of law that parole evidence cannot be admitted to contradict, add to, or vary the terms of a contract, or other instrument in writing . The same rule of law has been adopted in most of the states in the Union . In our own Court the same rule was early recognized, and has been uniformly adhered to .
    The reasons which are given for this rule, are, in general, such as apply to courts of equity as well as law. In the Countess of Rut-land’s case, it is said, “ It would be inconvenient that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement of the parties, should be controlled by averment of the parties, to be proved by the uncertain testimony of slippery memory.” In Haynes vs. Hare 
      , Lord Loughborough, delivering the opinion of the court, says, “It is not necessary to cite any case to prove the position that parole evidence of a parole communication between the parties, ought not to be received, to add a term not inserted in the specific agreement, which they have executed; and for this plain reason, that what passed between them in that communication may have been altered, and shifted in a variety of ways; but what they have signed and sealed was finally settled. It would destroy all trust; it would destroy all security, and lay it open, unless the parties are completely bound by what they have signed and sealed.” In Bayard vs. Malcolm, before cited, it is said by Wordsworth, senator, now a judge, “ I understand the rule of law to be, that when the party relies on * the contract, and that contract is reduced [ * 317 ] to writing, he cannot give parole evidence to enlarge or restrain its operation. The writing, being a more solemn act, is in law considered the consummation, and done with deliberation. By this the parties are bound, and cannot afterwards resort to the more uncertain species of testimony by parole. This doctrine has been well settled and acted upon in our courts, and in England, and at this day is not to be shaken. Writing is a more permanent method of communication; it is generally the result of deliberation; it depends not on memory, which is frail and fallible. The wisdom of the law, in confining the parties to the written contract, in exclusion of all anterior verbal communications, must be obvious.” In Parkhurst vs. Van Cortlandt 
      , Chancellor Kent says, “ I apprehend the rule to be reasonable, and too well settled to be now disturbed, that when an agreement is reduced to writing, all previous negotiations are resolved into the writing, as being the best evidence of the certainty of the agreement.” “ A contract cannot rest partly in writing, and partly in parole. The writing is the highest evidence of the agreement, and does away the necessity and the effect of parole evidence.”
    The rule has been more frequently laid down by this Court, and the reasons of it more explicitly and forcibly given, as will be seen by a recurrence to the several cases before cited from our reports. Those reasons will apply with as much force against the admission of such evidence in a court of chancery, as in a court of law-.
    There is much less danger from suffering a party to show that a part of the agreement was, by the understanding of the parties, omitted in the writing, than to suffer him to show that it was wrongly drawn by mistake, when that mistake is denied by the opposite party. There is less probability that the mistaken impression of the witnesses will be substituted for the agreement of the parties, although the danger is very great in either case. And this *is said by Lord Thurlow “ to be a fraud upon the rule [ * 318 ] of law.” .
    As all the reasons for preferring written to parole evidence apply as well to courts of chancery, as to courts of law, it will be found upon investigation that their force has been felt there ; and if they have not universally prevailed, it has been because the powers of the court were not so distinctly defined, their proceedings reported with less accuracy, and, perhaps, the reasons themselves not so well understood as they now are.
    A reason might be suggested in favor of receiving parole evidence in chancery, though it would be rejected at law, arising from the different constitution of the respective courts. In one case the evidence would be received by the chancellor, a person conversant with the rules of evidence, and in the daily habit of estimating the comparative weight of the different kinds of evidence; and who could not easily be imposed upon, and induced to reject evidence of a higher and more satisfactory nature, in favor of that of a different description. In the other case the evidence goes to the jury; men ignorant of the rules of evidence, and very likely to mistake its proper weight. But this reason, if well founded, does not apply here; for, if any question of fact arises in the case, it is not to be decided by the Court, but by a jury.
    “ The rules of evidence, in a court of equity, are the same as in courts of law; and it is a general principle, established in the former, no less than in the latter, that parole evidence of the intention of the parties is not admissible, to vary, or add to the terms of a written agreement.” These are the words of the rule as it is laid down by Phillips in his treatise on evidence, a work well deserving the high credit it has obtained with the profession . In Powell it is said, “ Except when the evidence is offered by the defendant, to resist an application for a decree for a specific per-[*319] formance, the rules of evidence are universally *the same in courts of law, and courts of equity” . This exception is recognized, also, by all the elementary writers, and is founded in the deepest reason.
    When a court of equity is called upon to exercise its peculiar jurisdiction, by decreeing a specific performance, this is an application to the discretion of the court; and the court will not grant a decree for a specific performance, unless it is satisfied that, under all the circumstances, it is equitable to give more relief than the plaintiff is entitled to at law. This refusal to interfere does not deprive the party of his remedy, but compels him to resort to a tribunal not possessing this discretionary power .
    This practice of the court is no less consistent with the statute of frauds, than with the rule of the common law upon this subject. No party is charged upon this evidence, nor is one contract substituted for another. The statute does not say that a contract in writing shall bind; but that an unwritten one shall not bind .
    In MaddocWs Chancery the rule is thus laid down: “ Though parole evidence is inadmissible on the part of the plaintiff, to explain, add to, or vary a written contract (except in cases of fraud), it is admissible on the part of a defendant to a bill for a specific performance, to show circumstances dehors, independent of the writing, making it inequitable to interpose for the purpose of a specific performance” . In Partriche vs. Powlet 
      , Lord Hardwicke rejected parole evidence, offered to explain an agreement in writing, and said, “To add any thing to an agreement in writing by admitting parole evidence which would affect land, is not only contrary to the statute of frauds and perjuries, but to the rule of the common law before that statute was in being.” Land was not the immediate subject of the agreement in that case, and would not be more affected by it than in the present case. Besides, the rule of law, independent of the statute, does not apply to contracts respecting land, more strongly than to every species of contracts in writing .
    * Imham vs. Child 
       was the case of a bill filed to [ * 320 ] redeem an annuity, there being no clause of redemption inserted, and parole evidence was offered to show that this was the agreement between the parties; and that the clause was omitted through a mistaken apprehension that its insertion would render the contract usurious. The evidence was rejected, “ not being charged *o have been omitted by fraud.” Lord Chancellor Thurlow says, ‘ The rule is perfectly clear, that where there is a deed in writing, it will admit of no contract that is not part of the deed. Whether it adds to or deducts from the contract, it is impossible to introduce it upon paróle evidence ” .
    
      Rich vs. Jackson 
       was a case before Lord Loughborough, about a year after his receiving the great seal. It was a bill for specific performance of a contract respecting a lease, and alleging the agreement between the parties to be somewhat different from the writing. The evidence was partly contained in the bill, and the residue was read in stating it. From the evidence, says the chancellar, believing the witnesses to speak the truth, it is impossible to mistake the meaning of the parties to be exactly what he [Mr Mansfield\ has stated; that is, what the plaintiff alleged it to be, that the rent to be paid was meant to be a clear rent. But the parties had concluded the matter by a written agreement, which was different. “ The real question is, whether, in this court any more than at law (where the judges have said, I ought not to have admitted the evidence—and I approve their determination), it ought to be admitted ; whether there is any distinction in a court of equity when a party comes to enforce a written agreement by obtaining a more formal instrument, and to add, in doing that, a term not expressed in the written agreement.” “I have looked into all the cases; I cannot find that the court has ever taken upon itself to add to the form of the agreement; that, in repeated instances, the court has refused to do so, though it has been insisted that the parole evidence has shown the agreement to be against [ * 321 ] conscience. *The hardness of the case, under special circumstances, may induce the court to refuse decreeing a specific performance, or to leave it to the plaintiff’s remedy at law; but it is quite impossible to admit the rule of law to be broken in upon; and that requires that nothing should be added to the written agreement; unless in cases where there is a clear subsequent and independent agreement, varying the former; but not where it is matter passing at the same time with the written agreement. None of the cases go further than this, in the decisions and rules laid down, that parole evidence of the conduct of the parties, the manner of conducting the transaction, the unfairness and hardship, may afford a good ground to leave the party in the condition in which he put himself at law, to make what he chooses to make of it; but it ought not to make this court give him any aid. The evidence offered here, which I admitted to be read, but which I ought not to have admitted, is all of matter passing at the same time with the written agreement; therefore I must dismiss the bill.”
    This case was very ably argued by Mr. Mansfield, afterwards chief justice of the Common Pleas, and Mr. Abbot, the present chief justice of the King’s Bench, for the plaintiff; Mr. Mitford, afterwards Lord Redesdale, and Mr. Simson, for the defendant. The cases referred to in the arguments are noticed and commented upon by the chancellor, and are shown not to militate with the principle here laid down. An action between the same parties had been tried in the Common Pleas, in which the same question arose, and precisely the same evidence was offered and rejected; and although it was the equitable action for money had and received, the decision was confirmed by the whole court, and is approved by the chancellor here.
    In Brodie vs. St. Paul 
      , Justice Buller, sitting for the chancellor, says, “ The question here is, what is the agreement ? The whole depends upon parole. If the agreement is certain, and explained in writing signed by the parties, that binds them. If not, and evidence is necessary * to prove what [ * 322 ] the terms were, to admit it would effectually break in upon the statute, and introduce all the mischief, inconvenience, and uncertainty, the statute was designed to prevent.” “ Now I must confess,” says Lord Redesdale, in Clinnar vs. Cooke 
      , “ I find this to be perfectly right, and I am convinced that, though the counsel for Mr. Brodie felt that he was very ill used, yet they felt also that it was impossible that relief could be afforded him.”
    In the case last referred to, the very question is considered by Lord Redesdale with his usual ability. He has commented on many of the cases cited in support of the plaintiff, and especially those from Atkins by Lord Hardwicke. He says, Lord Hardwicke seemed to have thought, “ that by possibility a case might be made, in which even a plaintiff might be admitted to show an omission, either by mistake or fraud. However,” he adds, “ I can find no decision, except the contrary way. The admission of such evidence, as matter of defence, is frequent.” Legal vs. Miller, 2 Ves. 299; and the same doctrine is stated in Pitcairne vs. Ogboume, ibid. 375, and in an older case, 1 Vern. 240. It is used to rebut an equity : the defendant says, the agreement you seek is not the agreement I meant to enter into; and then he is let in to prove fraud or mistake.
    In the cases of Townsend vs. Stangroom and e contra, cited by the plaintiff’s counsel, the rule in relation to this subject is fully illustrated. The parole evidence was admitted, when offered by the party to resist a decree for specific performance; and the party applying to the court was left to his remedy at law. But when the same evidence was offered by the same party as plaintiff, to procure an alteration of the agreement, and thereby deprive the opposite party of his legal remedy, it was rejected and the bill dismissed. The same distinction is taken by Sir William Grant, master of the rolls, and discussed with * great ability in the case [ * 323 ] of Woolam vs. Hearne 
      , which is said to have been determined with great consideration ; and is laid down also in a note tc the case of Shergold vs. Boone 
      . Also in Clark vs. Grant 
      , We might also refer the Court to Fell vs. Chamberlain 
      , Ramsbottom vs. Gosden 
      , Winch vs. Winchester 
      , and Higginson vs. Clowes 
      .
    The counsel for the defendant observing that the principle contended for was a novel one, and one of very great importance in its application, went into an extensive examination of the cases, by which it was attempted to be supported; acknowledging that, notwithstanding the weight of authority and the strength of the reasoning, against the admission of parole evidence under such circumstances, there are yet some cases which seem to give countenance to an opposite doctrine. But this part of their argument must be omitted.
    After showing that the case comes within the statute of frauds, and arguing that for that reason, if for no other, the evidence ought to be excluded, they thus conclude. The wisdom of the provisions in that statute, in the preference, which it has established, of written over parole evidence, and the rule of the common law in conformity to it, has been long felt and acknowledged. The exceptions, which have been allowed, to take cases out of the statute, and the encroachments which have been made upon it, and upon the common law rules of evidence, have often been the subject of regret, both in England and in this country.
    “ Thinking as I do,” said the master of the rolls, in Woollam vs. Hearne, “ that the statute has been already too much broken in upon by supposed equitable exceptions, I shall go no further in receiving and giving effect to parole evidence, than I am forced by precedent.” Lord Loughborough said, “ The bent of my mind is strongly in favor of the wisdom of the statute; therefore I am rather against the cases which have trenched upon it .” [ * 324 ] * In Buckmaster vs. Harrop 
      , Lord Erskine said that, in his opinion, “ great mischiefs had arisen out of the doctrine of part performance: yet,” said he, “ I must execute the law of the court.” In Grant vs. Naylor 
      , Marshall, C. J., says, “ Already have so many cases been taken out of the statute of frauds, which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs which the rule was intended to guard. The best judges in England have been of opinion, that this relaxing construction of the statute ought not to be extended further than it has already been carried; and this court entirely concurs in the opinion.”
    Quotations of a similar import might be multiplied indefinitely but they are unnecessary. They only show that the force and effect of the reasoning of our Court, in the case of Stackpole vs. Arnold, is felt and acknowledged by every one. It is precisely at this period, that this Court is called upon to deny the principles there advanced; and in opposition to their own experience, and that of the whole civilized world, to strike out into a new, and to us at least an untried path. But we trust that no such course will be adopted.
    But if the Court should admit the evidence, it was argued at great length by the counsel for the defendants, that it did not in any degree establish the point for which the plaintiff would introduce it.
    
      
       Com. Dig. Chanceryt V 2.—Milford's Pleadings, 116.
    
    
      
       1 Mad. Chan. 41.—1 Ves: 17.—2 Mh. 203.
    
    
      
       1 Vern. 32 —1 Eq. Abr. 170. Gee vs. Spencer.
      
    
    
      
       1 Vern. 37.—1 Ea. Abr. 170, Lee vs. Henley.
      
    
    
      
       2 Vern. 98, Towers vs. Moore.
      
    
    
      
      6) 1 Eq. Abr. 232.-2 Vern. 547, Hill vs. Wigget
      
    
    
      
       3 Atk. 388.
    
    
      
       2 Schoales & Lefroy, 492, 502, Watt vs. Grove, & e contra.—2 Mad. Ch. Rep. 88, Smythe vs. Smythe.
      
    
    
      
       2 Vern. 593, Hodgson vs. Hodgson.—1 Eq. Mr. 231, S. C.—Free. Ch. 229, S. C.
    
    
      
       1 Ves. 239, Roberts vs. Kingsley, & Belt’s Supp. 129.
    
    
      
       1 Ves. 456, Baker vs. Paine.—Belt's Supp. 199, S. C.
    
    
      
       2 Ves. 100, 371.—Belt’s notes, 288.
    
    
      
       3 Bro. Cha. Ca. 454, Taylor vs. Rudd.—2 Atk. 32, Simpson vs Vaughan.- 41 Mad. Rep. 106, Lord William Gordon & Ux. vs. Marquis of Hartford.
      
    
    
      
       1 Ves. 317, Henkle vs. Royal Exch. Ass. Co.
      
    
    
      
       2 Mad. Rep. 216.
    
    
      
       2 Ves. 376.
    
    
      
       2 Price's Rep. 190, Rob vs. Butterworth.
      
    
    
      
       5 Ves. jun. 593, Barstow vs. ICilverton.
      
    
    
      
       2 P. Will. 464, Randall vs. Randall.
      
    
    
      
       2 Dow’s Parl. Cases, 275, Willan vs. Willan.
      
    
    
      
      
        Cooper's Rep. 161, Raikes vs. Postlethwaite.—See, also, 1 Day’s Cases in Errot 139, Washburn vs Merrills.
      
    
    
      
       1 Ves. Beame, 165, Ramsbottom vs. Gosden.
      
    
    
      
       6 Ves. jun 328.
    
    
      
      
        Bro. Cha Ca. 92
    
    
      
       1 Bro. Cha. Ca. 338, Lady Shelburne vs. Lord Inchiquin.
      
    
    
      
       2 P. Will. 158, Rashfield vs. Careless.—1 Wits. 313, Lake vs. Lake.—4 Ves. jun. 21, White vs. Evans.
      
    
    
      
       1 P. Will. 7, Petit vs. Smith.—Ibid. 114, Granville vs. Beauford.—2 Vern. 267, Lillebury vs. Buckley.—2 P. Will. 210, Duke of Rutland vs. Duchess of Rutland.— 2 Atk. 68, Bracebridge vs. Woodriff.—2 Merrivale, 6, Langham vs. Sanford.—1 Ves. jun. 344, Nourse vs. Finch.
      
    
    
      
       3 Ves. jun. 527, Hinchcliff vs. Hinchcliff.—2 Bro. Cha. Ca. 312, Stanbury vs. Stanbury.—4 Ves. jun. 491, Tollson vs. Collins.—17 Ves. jun. 192, Hartopp vs. Hartopp.—3 Atk. 77.—1 Ball & Beatty, 305, Monk vs. Monk.—2 Ball & Beatty, 156, Dwyer vs. Lysaght.—2 Ves. 624, Drinkwater vs. Falconer.—2 Mad. Chan. 76, and cases there cited.—2 Bro. Cha. 309, Ellison vs. Cookson.—2 Ves. 27, Blinkhorne vs Feast.—7 Ves. jun. 518, Trimmer vs. Boyne.
      
    
    
      
       2 Vern. 366, Gasgoine vs. Thwing.—2 Atk. 71, Willis vs. Willis.— 2 Vent. 361 —2 Eq. Mr. 745.-2 Atk. 155.—10 Ves. jun. 511.
    
    
      
       2 Freem. 6, Lord Gray’s case.
    
    
      
       3 Ridgeway’s Parl. Cases, 106, Redington vs. Redington.—1 Schoales & Lefroy 135, Hughes vs. Tearney.—2 P. Will. 294, Coppin vs. Coppin.
      
    
    
      
       15 Ves. jun 345.
    
    
      
       6 Crunch, 148, Mussin vs. Watts.
      
    
    
      
       1 Cha. Ca. 191, Holt vs. Holt.—1 Vera. 484, Whalley vs. Whalley.
      
    
    
      
       2 Johns. Ch. Rep. 585.
    
    
      
       17 Johns. 373.
    
    
      
      
        Mitford’s Pleadings, 2d edit. 106,117,118. See, also, 1 Fonbl. 23, note g
      
    
    
      
      
        Phillips’s L. of Evid. 423.—5 Co. 26, Countess of Rutland’s case. Ibid. 68, Lord Cheney's case.—Lord Bacon’s Elements of Lato, Reg. 23, p. 82.—2 W. Black. Rep. 1249.—3 Wils. 275, Meres vs. Ansell.—Skin. 54, Kaimes vs. Knightly.—Peake’s L. of Evid. 117.
    
    
      
       1 Day’s Rep. 23, Northrop vs. Speary.—Kirby’s Rep. 22, Bradley vs. Blodget. —1 Dall. 83, Snowden vs. Hemming.—1 Caines, 358, Jackson vs. Bowen.—8 Johns. 375, Fitzhugh vs. Runyon.—12 Johns. 427, Jackson vs. Croy.—2 Johns. 560, Bayard vs. Malcolm.—4 Dall. 343, O’Hara vs. Hall.
      
    
    
      
       1 Mass. Rep. 169, Paine vs. M’lntyer.—6 M. R. 477, Murray vs. Hatch. Ibid. 524, Hunt vs. Adams.—7 M. R. 522, Hunt vs. Adams.—10 M. R. 244, Richards vs. Killam.—11 M. R. 27, Stackpole vs. Arnold.—15 M. R. 432, Lewis vs. Thatcher.
      
    
    
      
       1 H. Black. 664.
    
    
      
       1 Johns. Cha. Ca 282.
    
    
      
       1 Bro. Cha. 54.—1 Eq. Air. 230. S. C.
    
    
      
      
        Phil. Evid. 448; and see the cases there cited.
    
    
      
      
        Powell on Contracts, 438.
    
    
      
      
        Phil. Enid. 449.—7 Ves. jun. 219.—3 Atk. 393, Buxton vs. Sister—1 Man Chame. 320.—3 Atk. 190, Goring vs. Nash.—6 Ves. jun. 334.—3 Bro. Cha. 326.— 7 Ves. jun. 34.
    
    
      
      
        Phil. Evid. 450.—14 Ves. jun. 524.
      
    
    
      
       1 Mad.' Cha. 322. See, also, 2 Cha. Ca. 142, Foot vs. Salway.—2 Ves. 195, Hardwood vs. Wallis.—2 Gwil. Bac. 654, S. C.—Bunb. 65, Bindstead vs. Coleman.
      
    
    
      
       3 Atk. 383.
    
    
      
       See 3 Atk. 8, Tinney vs. Tinney.
      
    
    
      
       1 Bro. Ch. 98.
    
    
      
       See, also, 2 Bro. Cha. 219, Portmore vs. Morris.—1 Bro. Cha. 338, Shelburne vs. Inchiquin.—3 Ero. Cha. 168, Hare vs. Shearwood. Ibid. 27, Doran vs. Ross.
      
    
    
      
       4 Bro. Cha. 514.—6 Ves. jun. 334, S. C.
      
    
    
      
       1 Ves. jun. 376.
    
    
      
       1 Sch. &• Lef. 36.
    
    
      
       7 Ves. jun. 211, Phil. Evid. 455.
    
    
      
       13 Ves. jun. 377.
    
    
      
       14 Ves. jun. 524.
    
    
      
       2 Dick. 424.
    
    
      
       1 Ves. B. 165.
    
    
      
      
        Ibid. 375.
    
    
      
       15 Ves.jun. 516
    
    
      
       2 Ves.jun. 243.
    
    
      
       13 Ves.jun. 474
    
    
      
       4 Crunch, 235.
    
   Parker, C J.,

delivered the opinion of the Court.

He first examined the deed analytically, to ascertain whether there was any latent ambiguity, which would let in parole evidence of the intention of the parties, to explain it; and he stated that the result of the deliberations of the Court upon this point was, that the terms of the deed were sufficiently clear; so that, by the general rule of evidence, it must be construed, according to the common law, by itself, without the aid of extrinsic evidence. He also stated that the Court were all of opinion, that, by the terms of the instrument, it was clear, that Mr. Pomeroy’s claim * of 9120 dollars was first to be provided for out of the [ * 325 ] fund; and that next after Mr. Dwight was to be paid 5500 dollars, without any deduction, in full of his claim. The reasoning, which had brought the Court to this conclusion, was stated at large by the chief justice; but as this part of the case related only to the construction of the contract, and had no tendency to settle any general principle of law or evidence, so much of the opinion as concerned this subject is omitted in this report.

With respect to the other point, viz., whether parole evidence of an agreement of the parties, different from that which appears in the indenture, might be admitted to control the deed, the chief justice delivered himself in substance as follows: That the elaborate and able arguments of the counsel had been perused with great attention, and all the authorities cited had been examined; and that from the whole it was very clear that, neither by the principles of the common law, nor of equity as applied by courts of chancery jurisdiction in England, could the agreement said to have been made, however well it might be proved by parole testimony, be set up in contradiction to the deed.

The chancery jurisdiction recently given to this Court, was not intended to impair or relax the rules of evidence, which govern contracts under seal, or written contracts; but merely to give a specific remedy, where none could be had by the common law, in respect to the execution of trusts, and other contracts in writing; and to enable the Court to ascertain, from the parties themselves, the true state of contracts between them.

Wherever a deed is perfect in itself, and capable of a sensible construction, and there has been no fraud or imposition in obtaining it, a court of equity can no more set it aside, than can a court of law. If it were otherwise, all the inconveniences, intended to be avoided by the rule of law, would be introduced. Frauds and perjuries would be encouraged; and very often a contract [ * 326 ] would be established * and enforced, wholly different from that which the parties had solemnly sanctioned by their signatures and seals.

If, now and then, through carelessness or inattention, an instrument, formally drawn up and executed, fail of expressing the true intent of the parties in their bargain, it were better that they should suffer, than that a system should be adopted, the natural tendency and sure consequence of which would be, to increase uncertainty, multiply instances of negligence, and hold out lures to false testimony. If, on the other hand, the rule be rigidly adhered to, men will conform themselves to it; they will take counsel, and act cautiously ; and instances will seldom, if ever, occur of any fatal mistake in their bargains. Ignorance will be protected, if any advantage shall be taken of it by superior cunning or sagacity, and frauds of all kinds may be detected and defeated, by the rules of law, as they now stand.

We think that the just inference from all the cases cited is, that such relief, as is prayed for in this case, would not be granted even in the Court of Chancery in England, whose jurisdiction is not limited by any statute. The more recent authorities are full and decisive against sustaining a bill, founded on an alleged verbal agreement different from a written contract, entered into by the same parties, upon the same subject. One or two cases have been cited, bearing a different aspect; but they have been explained away, or overruled by subsequent decisions. It is repeatedly asserted by the courts of equity, that the rules of evidence arc the same in those courts as in the courts of common law; and that they cannot give relief, by relaxing, or going counter to, the rules of law . Indeed it would be strange that, in any country, there should be independent tribunals, having jurisdiction over the same subject matter, which should act upon such different principles, as that a contract should be valid in one and void in the other. One may have forms and processes to enforce a contract, which the other may want; but it would seem * impossible that [ * 327 ] the contract itself should be valid or invalid, according to the form in which it should be discussed .

But were it otherwise in England, or in the state of Mew York, as some of the cases cited tend to show, it would by no means follow that, in this commonwealth, the same doctrine would be received. On questions arising out of the common law, or the law merchant, the decisions of courts governed by those laws meet with a respect here almost amounting to authority; but the system of equity, as administered abroad, has never yet been adopted here in its full extent; and. m that particular department of our jurisdiction, we are to look critically for the express authority given by the legislature, and not to assume more than was intended to be granted .

Whatever may be the policy of refusing to establish a tribunal with full chancery powers, we cannot avoid perceiving that such powers are looked upon with no inconsiderable jealousy; and that the authority which is given to this Court was intended to be limited to the subjects expressly mentioned in the statute. The power given is, “ to hear and determine in equity, all cases of trust, arising under deeds, wills, or in the settlement of estates, and all cases of contract in writing, where a party claims the specific performance of the same, and in which there may not be a plain, adequate and complete remedy at law.” Upon all such subjects the power is general; and the principles of equity, as settled in the chancery courts in England, may be applied, as well as the forms of process used in those courts; but no other subject can be drawn by implication into the equity jurisdiction.

The relief sought for in this bill is upon a contract not in writing, of which we have no jurisdiction under the statute; so that even if there were no deed in the way, we could not sustain the bill. And when the contract supposed is entirely contradictory to a deed actually made, to give force to the former would be to [ * 328 ] violate a rule, * under the powers of chancery, which, as a common law court, we should be obliged, by our oaths, to regard.

The plaintiff’s counsel, aware of this difficulty, have urged upon us the cases in chancery, in which the courts have undertaken to reform a deed, so as to make it correspond with the intentions of the party, as proved by parole testimony. If by reforming is meant an essential change of the provisions of the deed, and of the rights and obligations of the parties, then the objections above stated are as forcible as they would be to any form of setting up a parole contract in opposition to a written one. If nothing more is meant by reforming than to make the deed comport with written memoranda, which have been mistaken by the scrivener, the application of such a power would not reach the difficulty complained of in the bill.

In short, there are but two cases in which parole evidence can be admitted to control the operation of the legal provisions in a deed or written contract, in itself complete and intelligible. One is the case of fraud, of which the injured party may avail himself in a court of law, as well as in a court of equity; and the other is, where a party applies to a court of equity to enforce a written contract, and the adverse party is allowed to show, by testimony, that the instrument relied upon does not contain the true agreement of the parties, or the whole of it. In this latter case, the court of equity will withhold the exercise of its power, unless the party seeking relief will do full justice to the other party, according to the facts which are made to appear to the Court . Even this power is considered dangerous, and is used with caution ; for it is an infringement of the rule of law, which considers the written instrument as a more safe declaration of the real intention of the parties, than the account given of it by the bystanders, whose memories may be frail, whose minds may be prejudiced, and whose language may be incorrect or misunderstood. [ * 329 J * It may also be observed, in relation to the case before us, that," if we could admit the evidence produced by the plaintiff, it would fail of proving satisfactorily that any actual agreement was made different from that which the deed would prove. The testimony might be sufficient to prove that the plaintiff understood the bargain, as he would now wish to have it enforced ; but he would be obliged to prove that both parties understood it so, and that the terms of the deed were inconsistent with the views of his adversary as well as himself. This does not appear On the contrary, it would seem, from the answer of Pomeroy, and the testimony of some of the witnesses, that the bargain was put in writing exactly as it was made.

In short, the very case before us most clearly illustrates the reasonableness of the common law rule, that where there is a writing, that alone shall be the proof of the contract. For, upon examining and comparing the voluminous depositions of the witnesses, and the answers, by the parties, to the interrogatories put by the plaintiff, it is extremely doubtful what the real agreement was ; and if effect was given to the contract, supposed by the plaintiff to have been made, we should by no means be satisfied that injustice would not be done to Pomeroy, the principal defendant.

Bill dismissed. 
      
       [This assertion must be understood with soiae qualifications.—Ed.]
     
      
       [These remarks show a want of knowledge of the principles on which courts of chancery act. They do not always grant or refuse relief, according as the contract or deed may be valid or void at law, but according as the claim may be equitable or conscientious, or the contrary. If, for instance, a sealed instrument were drawn up and executed, which did not contain the same, but a different agreement or grant from that which the parties intended, it would be unconscientious for the party in whose favor it was made to insist upon it contrary to or beyond the agreement or grant intended. If such party should have occasion to seek relief in equity , this Court would admit parole evidence, not for the purpose of contradicting or explaining the deed, but to show that it would be unconscientious to insist upon it. And this 'acing shown, the Court would refuse to lend their aid, and leave the party to his remedies at law.—Vide Story, Equity, 2d Vol., sec. 769, 770,771.—Ed.]
     
      
       [But the Court has adopted, as the outlines of their practice in chancery the practice of the English courts of chancery. See Rules.—Ed.]
     
      
       [Sed vide 1 Story’s Com. on Equity, 175, and cases there ¡eferredto.—Bn.j
     