
    John Blakely Ad'mr. ads. Noah Hampton.
    Parol proof is admissible to shew that a note had been given in substitution for two other notes, which were taken up, in order to admit the two notes in evidence, and to shew by the calculations made in figures on them, that the substituted note, by mistake, had been given for a wrong sum.
    Between the original parties, evidence may always be given of the true eon* sideiation of a note.- So it may be proved that it was given for the balance due on a settlement of accounts, and that a mistake was made in the amount.
    The rules of evidence are the same in law, as in equity, except in in some particular cases where parol evidence is let in, merely with a view of affording the court of equity the means of exercising its peculiar jurisdiction.
    Where parol proof cannot be admitted in equity, a fortiori, it ought not to be admitted at law.
    The doctrine of parol evidence generally discussed.
    Tried before judge Huger at Laurens, Spring term, 1826.
    This was an action of assumpsit on a note. Plea, general issue. The note was admitted. The defendant offered evidence to shew, that the note in question had been given for the balance due on a settlement of sundry accounts.
    Judge Huger thought the evidence inadmissible, A verdict was found for the plaintiff.
    The defendant appealed on the ground: That he should have been allowed to shew that the note in question was by mistake given for more than was really due.
    
      
      
         Samuel M'Creary vs. Elisha Jaggers.
      “In this case it was stated by Mr. Eves attorney for the defendant, that he would go into evidence by which it would clearly appear, that the note had been given in consequence of an imperfect settlement between the plaintiff and the defendant, by persons to whom the same had been referred. That it was understood and had been expressly agreed, at the time the defendant signed the note, that if, on a future investigation, it should be found, that the amount expressed in the note, exceeded the actual amount due from the defendant, in such event the plaintiff would make the allowance, and correct the mistake. That the arbitrators had taken upon themselves the burthen of a further and more minute examination of the matters referred to them, and had thereby ascertained that the amount called for by the note was considerably beyond what the defendant justly-owed. That the plaintiffhad been frequently called upon to correct the mistake pursuant to his agreement, and had refused to do so.
      The presiding judge overruled the admissibility of the evidence offered, as not allowable under the plea of the general is,sue, and that parol testimony could not be received to contradict the internal and higher evidence, which the note itself furnished. That if the defence insisted on could avail the party, it could only be by pleading the subsequent award, which was to operate by way of defeazance, and of which the plaintiff should have "oeen duly notified; that the introduction of the evidence relied on by the defendant, would take the plaintiff by surprize, &c.
      Colcock, J. — From tlie view which is presented to us of this case, by the report of the presiding judge, two questions arise: First, whether parol evidence was admissible in the ease? and secondly, if so, whether it could be admitted under the plea of the general issue? It is only necessary to take such a view of the case, as will determine the legal character of the defence, and we shall then, at once, perceive that the testimony was improperly rejected. Now what is it that the defendant alleges? That by the mistake of the accountants,, who were called on to settle their accounts and ascertain the balance due, he was induced to give his note for a greater sum than was actually due. He therefore pleads a want of consideration in the note. In an action of assumpsit, such defence may always be made under the general issue. And this has been the long established doctrine, notwithstanding it is subject to the objection of tlie presiding judge, Chitty does say, considering the language of this plea, it might perhaps seem at first view, that the defendant by it only denies the fact of his having made the promise; as, however the definition of a contract not under seal, is “an agreement founded on a sufficiejit and legal consideration to do some legal act, or to omit the doing an act, the performance of which the law does not enjoin, ” the above plea by denying the contract, in effect, puts in issue every part of the, above difinition, viz: the agreement, whenever it is obvious that thinsuffici-ency and legality of the consideration and of the act to be done, is omitted, are fairly putin issue by this plea. (1 Chitty 469 — 70, J
      
      Now, it is the insufficiency of the consideration which the defendant complains of.
      In this particular case there was less ground for the objection of surprize than inordinary cases, for the arbitrators had reviewed their calculations and declared their mistake, so that the great probability, almost amounting to certainty, is that the defendant was well apprized of the, defence. The motion is granted.
    
   Nott, J.

There is no principle of law more familiar to the profession, than that parol proof cannot be admitted to add to, alter, or contradict a written agreement. But it has been so much broken in upon by various decisions, both in law and equity, that the rale itself appears almost to be lost in the various qualifications and exceptions which have been made to it.

Phillips has collected a great variety of cases on the snbject. But it does not appear to me that he has advanced far towards removing the difficulty. He has however rendered one important service to the profession, in bringing the cases together by which those who are disposed to investigate the subject, are directed where to go for information. He says (p. 353-4,) it does not appear from any reported case, that the plaintiff has been allowed to give parol evidence varying a written agreement, on the ground of mistake or sur~ prise. Yet he says, (in p. 458-9,) mistakes, and misapprehensions in the drawers of deeds or written agreements, are a subject of relief in courts of equity, and may be rectified according to the true intention of the parties. The leading cases referred to, are Joynes vs. Statham, 3 Atkins, 388. Clinan vs. Cooke, 1 Schoales & Lefroy, 22. The Marquis of Townsend vs. Stangroom, 6 Ves. 328; and Woollam vs. Hearn 7 Ves. 28. Baker vs. Payne, 1 Ves. 456; and 6. Ves. jr. 336, in note. In the first case, Joynes vs. Statham, lord Hard-wicke received parol evidence to correct an omission in a lease, and he then said it was immaterial whether it was insisted on as a mistake or fraud.

Lord Redesdale, however, in the case of Clinan vs. Cooke, (1 Schoales & Lefroy 22.) notices this case, and adds: there is a prior case, Walker vs. Walker, 2, Atkins 98, where lord Hardwicke, is made to say something similar; and there seems to be somewhat of a floating idea in the mind of his lordship, that, by possibility, a case might be made, in which even a plaintiff might be permitted to shew an omission in a written agreement, either by mistake or fraud.” “However, (says his lordshipJ “ Í can find no decision except the contrary way.” In the case of the Marquis of Townsend vs. Stangroom, lord Eldon again reviews all those cases, and concludes with saying, “ I agree, that those producing evidence of mistake or surprise; either to rectify an agreement, or calling upon the court to refuse a specific performance, undertake a great difficulty; but it does not follow, that it is therefore incompetent to prove the actual existence of it by evidence.”

In the case of Woollam vs. Hearn, 7 Vesey,jr. 218, the Master of the Rolls, Sir W. Grant, referingto all the foregoing authorities, says: “ by the rule of law, independent of the statute, parol evidence cannot be admitted to contradict a written agreement. To admit it for the purpose of proving that the written agreement does not contain the real agreement would be the same as admitting it for every purpose. It was for the purpose of shutting out that inquiry, that the rule of law was adopted. Though the written instrument does not contain the terms, it must, in contemplation of law, be taken to contain the agreement, as furnishing better evidence than any parol can supply. There, says this learned lawyer, stands the rule of law.” He then proceeds to consider the subject as applicable to the courts of equity, and lays down the rule, that parol proof is never to be admitted to correct a mistake in favour of the plaintiff seeking the specific performance ofan agreement. He admits however, that such evidence ought to be admitted to prevent the specific execution of a contract. Judge Kent, in the case of Kiesselbrack vs. Livingston, (4 Johnson’s Chancery, 146,) says he is not sufficiently instructed to admit the soundness of that distinction, and seems to think that there is no distinction in that respect between plaintiff and defendant. He lays it down in the same case, as understood and settled, that the court has jurisdiction to correct such mistake; and in various other cases speaks of it as a settled rule, that the correcting of a mistake is as well a ground for letting in parol proof as that of fraud. (Stevens vs. Cooper, 1 Johnsons C. 429. Botsford vs. Burr, 2 Do. 415.) All these cases are to be sure from the court of equitj'. But it seems to be very well settled that the rules of evidence are the same in law as in equity, except in some particular cases where parol evidence is letin merely with a view of affording the court of equity the means to exercise its peculiar jurisdictioLV But if such proof cannot be admitted in equity a fortiori it ought not to be admitted at law.

But Judge Swift, in his Treatise on Evidence, I think, has taken the best view of the subject. After laying down, the general rule on the subject, he undertakes to reducé the exceptions to something like principle. One of his rules is that, where there has been a mistake in fact, parol evidence may be admitted to rectify it.” As where a testator by mistake inserts the name of A, instead of B, in a legacy or devise. (6 Term Rep. 671. 2 P. Williams 141.) Where a bill of exchange was drawn on Josiak Raymond, when Joshua Raymond was intended, parol evidence was admitted to shew the mistake. (1 Day 11.) So to shew that a receipt purporting to be in discharge of a note, dated 3rd of May, was intended for a note dated the fifth of May. And in the case of Nevison vs. Whitley, (Cro. Car. 501,) it was permitted to be shewn by parol evidence that a bond for one hundred pounds, with a condition to pay fifty eight pounds at the end of six months, was intended to be made payable at the end of the year, and that six months was inserted by mistake of the scrivener. (Swifts Ev. 39.) From these cases it will appear that the rule applies as well to cases of mistake as fraud, and' that it is the same both in law and equity. In the case of •M‘ Creary and Jaggars, decided in this court at the last Spring term, it was held that parol evidence might be admitted to shew that a note which had been given in pursuance of an award had been given for too much, in consequence of a mistake in the arbitrators which they themselves had after* wards discovered.

Now what are the facts in the case before us. The pre* siding judge reports that the defendant offered evidence to shew that the note in question had been given for the balance due on a settlement of sundry accounts. The object of offering the evidence does not appear. It was nothing more then, than evidence of the consideration, which we hawe always ad-knitted. Indeed we have admitted evidence to show that a note purporting to he for value received was given without anj'consideration, (Bremar & Singleton, State Reports, 201.7 Johns. 26. Do. 224. It is stated by the counsel, that the object of the parol proof was to shew that the note in question was given as a substitute for two other notes which were then given up, and that by the production of those notes and the calculations appearing in figures, it would shew that a mistake had been made in the amount. If that is a true statement of the facts, then the parol evidence was not for the purpose of contradicting the written agreement, but merely to shew the consideration, to let in written evidence or memo-randa by which the mistake might be rectified. I think therefore that upon cither ground the testimony ought to have been admitted. Whether it would have been sufficient to establish the fact against the written contract is a distinct question. 1 think the motion ought to be granted,

P.-Farrow for the motion.

Irby contra.  